State v. Bailey
| Decision Date | 09 December 2020 |
| Docket Number | A164732 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Xavier Lee BAILEY, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Kyle Krohn, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Julia Glick, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.*
Defendant entered a conditional guilty plea to unlawful possession of a firearm, ORS 166.250, reserving his right to appeal the trial court's denial of his motion to suppress evidence discovered in the course of an officer-safety search. On appeal, defendant contends that the officers who patted him down for weapons did not have a valid officer-safety justification to do so. Defendant does not dispute that the officers subjectively believed that he posed a potential threat to their safety, but he argues that their belief was not objectively reasonable, particularly in light of his cooperative and nonthreatening behavior throughout the encounter. Defendant further argues that, even if he initially posed a potential threat, by the time of the search any such threat had dissipated because, by that time, he had been placed in handcuffs and three officers were present. Considering, as we must, the totality of the circumstances, we conclude that the officers’ subjective suspicion that defendant both was armed and posed an immediate threat at the time of the patdown search was not objectively reasonable. Thus, the trial court erred in concluding that the search was a reasonable officer-safety measure. We therefore reverse and remand for further proceedings.
"We review the denial of a motion to suppress for legal error and are bound by the trial court's explicit and implicit factual findings if evidence in the record supports them." State v. Sarmento , 296 Or. App. 763, 765, 439 P.3d 994 (2019). We state the facts in accordance with that standard.
After midnight, Salem police officers Chrowl and Bratley responded to a noise complaint connected with a house party near the end of a dead-end street, Suzanne Lea Street. The officers initially spoke with the homeowner at the front doorway. The officers caught a brief glimpse of the party as the homeowner stepped outside to speak with them. They saw "a crowd of individuals inside," but they did not note any specific individuals. The party was "dead quiet" while the officers spoke with the homeowner, and they "heard the distinct sound of a firearm being chambered or racked" somewhere inside the house. In response, the officers moved the conversation away from the front door. However, because the homeowner agreed to keep the noise down, the officers did not enter the home or take any further action at that time.
Later that morning, at about 5:00 a.m., Officer Chrowl returned to the area, this time in response to a complaint that people connected with the house were yelling in the yard and street. Upon his arrival, dispatch notified Chrowl that there had also been reports of gunshots at the end of the same street. Chrowl stepped out of his patrol car and saw someone—later identified as defendant—walking away from Suzanne Lea Street. By that time, Officer Singleton had arrived. The officers did not see anyone else on the street and began to follow defendant in an effort to speak with him. When defendant noticed the officers, he increased his pace and distance from them. In his report of the incident, Chrowl described defendant's gait and subsequent behavior as "nonchalant." Chrowl and Singleton caught up with defendant shortly thereafter, when defendant stopped in a nearby parking lot to speak with another individual, Flowers, who had happened to be passing by on a bicycle.
Chrowl called out to defendant and Flowers from a distance of about 25 feet and asked them whether they would be willing to speak with him. Both men turned around, walked back towards Chrowl, and responded "Yeah." Flowers spoke first and asked Chrowl if he had heard the gun shots. Chrowl explained that the shots were the reason that he wanted to speak with them, and he asked whether defendant had been at the party on Suzanne Lea Street. Defendant told Chrowl that he had been at the party, but, in response to further questioning, he said that he did not think that he had been there when Chrowl stopped by to address the noise complaint.
While defendant and Chrowl were speaking, a third officer, Dowd, arrived on the scene. When Chrowl began to explain the situation to Dowd, Dowd mentioned that something "just didn't seem right" with defendant and noted "the way [he was] standing." Chrowl then observed that defendant's "arms were tucked in super tight; he wasn't really moving his arm from the elbow up, only the elbow down, kind of like a hinge." Chrowl also noticed "what looked like a line" in the "upper pectoral area" of defendant's jacket, which, to Chrowl, "wasn't natural, wasn't normal looking." Chrowl thought that "it appeared something was either concealed or inside [defendant's] jacket or underneath" it.
Because they "were specifically concerned about weapons[, and] firearms in particular," Chrowl and Dowd approached defendant and asked whether they could pat him down. According to Chrowl, defendant "said something to the effect of, ‘I don't know why you need to,’ " and, at that point, the officers placed defendant in handcuffs and patted him down. During the patdown, Chrowl felt "an upside-down L-shaped object" near defendant's chest and thought that what he felt was the handgrip of a firearm. Based on that belief, Chrowl unzipped defendant's jacket and seized what was indeed a handgun.
The state subsequently charged defendant with the offense of unlawful possession of a firearm, ORS 166.250. Defendant moved to suppress all evidence of his possession of the handgun, arguing, in part, that it had been discovered in the course of an unconstitutional, warrantless search. At the suppression hearing, Chrowl and Dowd both testified that they had subjected defendant to a patdown search to ensure their safety.1 When asked further about why he had found it necessary to search defendant for weapons, Chrowl testified that, when he asked for defendant's consent to pat him down, defendant had "started kind of leaning back [and] looking away." Chrowl construed those as "signs [that defendant] didn't want to be there; he was wanting to leave at that point, especially when we started asking for consent to pat down." Those circumstances caused Chrowl to question "whether he was trying to flight or fight at that point."
Later in the hearing, in response to the trial court's question as to what specific crimes he had suspected, Chrowl reiterated, "He was giving the stance that he was wanting to flight [sic], could be concealing something dangerous or deadly."
Dowd's testimony was similar to Chrowl's, though, as noted, he testified to having also suspected defendant of committing the crimes of "concealing a firearm" and unlawful use of a weapon. As to his safety concerns, Dowd observed that, upon being asked to consent to a patdown search, defendant "turned his body away from Officer Chrowl and started to step back, like he was trying to distance himself from Officer Chrowl as he was verbally objecting to a pat down." Dowd explained that he "didn't want a gun to produce itself and become a deadly force encounter with" defendant.
At the conclusion of the suppression hearing, the trial court denied defendant's motion, explaining its view that "the danger of serious physical injury was clear enough" and that it "would be out of bounds to second guess an officer's" judgment under the circumstances. The court then summarized the circumstances as it saw them, beginning with those that factored little if at all in its analysis. First, the court noted that the fact that officers had heard a gun being "racked and chambered" during an earlier encounter at the same location did not weigh heavily into the analysis; that, the court explained, was because any inference that defendant was carrying the same gun would be a "weak one." Second, the court reasoned that defendant's assertion of his right to withhold consent could play no role in its analysis. Finally, as to the perception that defendant might have been preparing to flee, the court stated without further elaboration that it was not a prominent factor in its analysis.
On appeal, the parties agree that the only issue before us is whether the officer-safety doctrine justified the warrantless search. That is, defendant does not challenge the lawfulness of the officers’ conduct leading up to the search, and, although Dowd testified that he suspected defendant of various weapons-related offenses, the state does not reprise the argument it made to the trial court that defendant had been lawfully detained based on reasonable suspicion of a crime.3 As to the officer-safety justification for the patdown search, ...
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