State v. Bates

• Decision Date: 22 December 1987
• Citation: 304 Or. 519,747 P.2d 991
• Parties: STATE of Oregon, Respondent on Review, v. Arthur Lee BATES, Petitioner on Review. TC 10-85-09534; CA A41686; SC S34094.
• Court: Oregon Supreme Court

Page 991

747 P.2d 991

304 Or. 519

STATE of Oregon, Respondent on Review, v. Arthur Lee BATES, Petitioner on Review.

TC 10-85-09534; CA A41686; SC S34094.

Supreme Court of Oregon.

Argued and Submitted Oct. 6, 1987.

Decided Dec. 22, 1987.

John P. Daugirda, Deputy Public Defender, Salem, on behalf of the petitioner on review. With him on petition, was Gary D. Babcock, Public Defender, Salem.

Terry Ann Leggert, Asst. Atty. Gen., Salem, on behalf of respondent on review.

GILLETTE, Justice.

The issue in this case, a criminal prosecution for unlawful possession of a controlled substance and unlawful possession of a weapon, is whether the police lawfully searched defendant's automobile after stopping him for a traffic infraction. The trial court denied defendant's motion to suppress evidence found in that search. The Court of Appeals affirmed without opinion. State v. Bates, 85 Or.App. 428, 736 P.2d 629 (1987). We reverse.

On December 17, 1984, at 4:40 a.m., Eugene City Police Officer Nauta stopped defendant for "excessive vehicle emissions," a Class D traffic infraction. Former ORS 483.765. Defendant was driving, in an otherwise lawful manner, a 1963 Chevrolet automobile with Washington license plates. Officer Nauta later described the area of the stop as a "high crime residential" area.

After stopping defendant, Officer Nauta called Officer Stroebel, who was in the immediate area, for assistance. When he arrived, both officers approached defendant's automobile, Officer Nauta from the driver's side. Nauta asked defendant for his driver's license. Defendant produced a valid Washington license. The automobile was seen by the officers to contain, in plain view, a television and a videocassette recorder.

Officer Stroebel, who was standing on the passenger side of the vehicle, commented on an object on the floorboard between defendant's feet. Nauta testified that, at that point:

"I shined my flashlight down between the Defendant's feet and could make out just the end of what appeared to be some kind of a bag, but I couldn't determine exactly what it was. And I asked Mr. Bates if he would reach down and very cautiously pull that item from between his feet, so I could see what it was."

Defendant did not pull the object into view. Instead, he reached under the seat and remained in that position while Nauta "repeatedly asked him to take ahold of what I couldn't see, what I couldn't make out, and to pull it out in plain view so I could see it." After approximately 10 seconds, Nauta drew his service revolver and ordered defendant out of the automobile. Nauta retrieved the closed black bag from under the front seat. He felt something hard inside the bag and, opening it, found that it contained several rounds of live ammunition, drugs, and drug paraphernalia. Nauta then searched the automobile and discovered a loaded handgun under the front seat.

Defendant does not challenge the validity of the original stop, nor does he contend that the officer's use of a flashlight was a search. See State v. Jackson, 296 Or. 430, 438 n. 4, 677 P.2d 21 (1984) (leaving the latter question open under the Oregon Constitution). He argues, however, that the officers exceeded their authority in asking him to slide the bag further into view and in searching the automobile when he did not comply.

As previously noted, defendant was stopped for a traffic infraction. Former ORS 484.353(2)(b), in effect at the time of this stop, provided:

"(2) A police officer:

" * * * * *

"(b) May stop and detain a person for a traffic infraction for the purposes of investigation reasonably related to the traffic infraction, identification and issuance of citation." (Emphasis supplied.) ¹

Nauta's investigation of the object on the floorboard was not reasonably related to the excessive emissions violation for which defendant was stopped and, therefore, was not authorized by former ORS 484.353(2)(b). In instructing defendant to move the object, Officer Nauta exceeded the permissible scope of his authority to conduct a traffic infraction stop.

The state does not contend otherwise. Rather, it argues that, once defendant was validly stopped, Nauta reasonably suspected that defendant was armed and dangerous and, therefore, Nauta was entitled to take reasonable steps to protect himself and Stroebel. The state relies on Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). In that case, police officers, patrolling a rural area late at night, observed the defendant driving erratically and at excessive speed. When the automobile turned down a side road and swerved into a shallow ditch, the officers investigated. The defendant appeared to be under the influence of an intoxicant and did not readily respond to the officers' requests to produce his driver's license and vehicle registration. The officers observed a large hunting knife on the floorboard of the driver's side of the defendant's car. The officers then frisked defendant, but found no weapons. One of the officers noticed an object protruding from under the armrest in the front seat. He lifted the armrest and saw an open pouch containing marijuana.

The United States Supreme Court, interpreting the Fourth Amendment, held:

"Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons."

463 U.S. at 1049, 103 S.Ct. at 3480-81 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968).

In view of the late hour, rural area, the defendant's manner of driving and apparent intoxication, and the discovery of the knife in plain view, the Court concluded that the police were "clearly justified" in their belief that the defendant "posed a danger if he were permitted to reenter his vehicle." Id. 463 U.S. at 1050, 103 S.Ct. at 3481.

This court also has recognized that police officers are entitled to take steps reasonably necessary to their safety. In State v. Riley, 240 Or. 521, 402 P.2d 741 (1965), the defendant was stopped for driving a motor vehicle with defective tail lights. As defendant's car was stopping, the officers observed him bend over as if he were placing something under the front seat. Defendant stepped out of his car as the two officers approached. As one officer questioned the defendant about his tail light violation, the other officer shined his flashlight into the car and noticed a gun handle protruding from under the front seat on the driver's side. He seized the gun and began to question the defendant about it. The defendant admitted that he hid the gun because he was an ex-convict and did not want the police to find it in his possession.

This court held that the seizure of the gun was lawful because, based on the defendant's efforts to conceal the gun, the police had probable cause to believe that he was carrying the gun without a permit. 240 Or. at 524, 402 P.2d 741. The court also noted that:

"The officers were justified in seizing the gun upon the further ground that it was reasonably necessary to their safety. Defendant was still near the car when Todd seized the weapon. There was no indication that defendant was about to make an effort to get the gun. When officer Todd was asked on direct examination if he was 'in fear of any assault by a weapon,' he responded, 'No, no more than you normally would be.' To justify the seizure of a weapon which could be used against the arresting officer we shall not draw a fine line measuring the possible risk to the officer's safety. The officer should be permitted to take every reasonable precaution to safeguard his life in the process of making the arrest." Id. at 524-25, 402 P.2d 741.

Although Riley was decided as a matter of constitutional law, it did not refer specifically to either the state or federal constitution. Upon consideration, we hold that Article I, section 9, of the Oregon Constitution does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present. As we noted in Riley, supra, 240 Or. at 525, 402 P.2d 741, it is not our function to uncharitably second-guess an officer's judgment. A police officer in the field frequently must make life-or-death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. An officer must be allowed considerable latitude to take safety precautions in such situations. Our inquiry therefore is limited to whether the precautions taken were reasonable under the circumstances as they reasonably appeared at the time that the decision was made.

Nauta testified that he was concerned for his safety because of the following facts:

" * * * The vehicle has out-of-state plates. Time of day; high crime area; like it or not, the way [defendant] looks; and the fact that there is a VCR and television set in the back seat of the vehicle."

Nauta also testified that he was concerned because defendant did not comply with his instruction to...