State v. Blevins

• Decision Date: 24 July 1996
• Citation: 920 P.2d 1131,142 Or.App. 237
• Parties: STATE of Oregon, Appellant, v. David Otis BLEVINS, Respondent. C94-02-31062; CA A85761.
• Court: Oregon Court of Appeals

Page 1131

920 P.2d 1131

142 Or.App. 237

STATE of Oregon, Appellant, v. David Otis BLEVINS, Respondent.

C94-02-31062; CA A85761.

Court of Appeals of Oregon.

Argued and Submitted Sept. 25, 1995.

Decided July 24, 1996.

Jonathan H. Fussner, Assistant Attorney General, argued the cause for appellant. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Dan Maloney, Deputy Public Defender, argued the cause for respondent. With him on the brief was Sally L. Avera, Public Defender.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

WARREN, Presiding Judge.

Defendant was charged with possession of a controlled substance, ORS 475.992(1). The state appeals a trial court order suppressing evidence and a judgment dismissing the charge. We reverse and remand.

We take the facts from the trial court's oral findings and the undisputed evidence at the suppression hearing. On February 15, 1994, around 4:45 a.m., Officer Rivera of the Gresham Police Department stopped a vehicle containing two men, two women and several children because none of the occupants was wearing a seatbelt. Rivera planned to cite the adults for the seat belt infraction.

During his contact with the people in the car, Rivera noticed that the two men were "fidgeting" and "nervous." They were reaching into their pockets, between the seats, between their legs and under the seats. Rivera repeatedly told them to keep their hands in front of them so that he could see them. Instead, the men ignored Rivera's instructions and continued their movements. The continued "furtive movements" and "nervous manner" concerned Rivera. He called for backup out of concern for his personal safety; Officer Boyd responded. Rivera told Boyd about his observations and asked him to do a quick pat down for weapons. Rivera then returned to talk with the driver, while Boyd walked up to the passenger side of the car. Defendant, a passenger, appeared very nervous, looking back and to the side. He continued to reach under the seat and between his legs. Rivera repeated his instructions that defendant keep his hands visible, but both men again ignored these instructions and continued their furtive movements.

Boyd asked defendant to get out of the car. Defendant continued to act very nervous, grinding his teeth, looking around and sweating. Boyd believed that defendant was under the influence of a controlled substance. He was concerned for his safety and therefore patted defendant down. He felt "a long cylindrical object" in one of defendant's jacket pockets, which he believed to be a hypodermic syringe. He asked defendant if the object was a syringe, but defendant at first did not respond. Boyd then repeated the question and defendant admitted that it was a syringe. Boyd seized the syringe, which appeared to be empty. Having found a syringe in defendant's jacket pocket, Boyd remained concerned for his safety. In another pocket, he felt a cylindrical object, an inch or more in diameter and between one and two inches long. Defendant did not respond when Boyd asked what the object was, and Boyd seized the object because he was concerned that the object could contain a weapon such as a razor blade or a needle. The object was a clear plastic cylindrical container that contained what Boyd recognized as a controlled substance.

Defendant was charged with possession of a controlled substance, ORS 475.992(1). Before trial, he moved to suppress evidence of the contents of the container, arguing that Boyd lacked authority to ask him to step out of the vehicle or to submit to a frisk. He did not challenge the propriety of the traffic stop. Specifically, he argued that, in the absence of a reasonable suspicion that defendant had committed a crime, Boyd had no authority under either the stop and frisk statutes or any general officer safety rationale to require defendant to submit to a frisk. In response, the state disavowed any reliance on ORS 131.605 to ORS 131.625, the stop and frisk statutes. ¹ Rather, it argued that the frisk was authorized under the officer safety doctrine, State v. Bates, 304 Or. 519, 747 P.2d 991 (1987), and that the officer did not exceed the lawful limits of the frisk when he removed the container.

The trial court held that the pat down and the seizure of the syringe were lawful under the officer safety doctrine. However, it suppressed evidence of the contents of the container on the ground that its seizure exceeded the permissible scope of a frisk for weapons for officer safety. The trial court held that the removal of the container was too intrusive because the officer could not specifically articulate a connection between his safety concerns and the contents of the container:

"THE COURT: There's got to be [a] more * * * reasonable connection between what's articulated and a real fear of--more specific fear for officer safety. I would say that this is not a specific articulable fear because the officer can specify what might be in the container of that size because the specification justifies going after all containers of almost any size that might ever be found on anybody's possession.

" * * * * *

"One is it's not a specific articulation if all it does is hypothesize what a container of that size might contain. There's nothing specific to this search. It's any container of that size.

"Secondly, at some point if you get sufficiently creative * * * then we have transcended the purpose of limiting a frisk to a minimal intrusion."

On appeal, the state assigns error to the trial court's granting of the motion to suppress. Defendant cross-assigns error to the trial court's decision that the frisk was lawful. On review, we are bound by the trial court's findings of fact where there is evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). We review the trial court's legal conclusions for errors of law. Ehly; ORS 138.220.

In Bates, the Oregon Supreme Court succinctly stated the officer safety doctrine:

"[W]e 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." 304 Or. at 524, 747 P.2d 991.

The pertinent inquiry, the Supreme Court said, is "whether the precautions taken [by the officer] were reasonable under the circumstances as they reasonably appeared at the time * * *." Id. at 525, 747 P.2d 991.

Defendant argues, however, under State v. Lumpkin, 129 Or.App. 601, 880 P.2d 468 (1994), adhered to 133 Or.App. 265, 891 P.2d 660, rev. den. 321 Or. 138, 894 P.2d 469 (1995), that the officer's concern that the container "might" contain a weapon is insufficient to permit the officer to remove it lawfully. ² Rather, defendant contends that the officer must reasonably believe that the container actually conceals a weapon. The state responds that Lumpkin supports its position. Specifically, the state argues that we should reach the same result as we did in Lumpkin and allow the introduction of evidence of the contents of the container because the officer in Lumpkin testified the same as Boyd did here: that his concern was that the object he felt in the defendant's front pocket "may" conceal a weapon.

During a lawful encounter with the defendant, the officer in Lumpkin became concerned that the defendant might be reaching for a weapon. Accordingly, the officer did a cursory pat down of the defendant's waist area and then patted the front of his jacket. In one jacket pocket the officer discovered a soft bulge and removed the object because he was concerned that it may conceal a weapon. The trial court's findings of fact stated:

" 'The officer was particularly concerned that the Defendant may possess a small weapon which was easily concealed, such as a razor blade or a fish hook, which can be hidden anywhere.' " 129 Or.App. at 611, 880 P.2d 468. (Emphasis supplied.)

The item was a small nylon pouch in which the officer could see the edge of a clear plastic baggie. Because the officer recognized it as a common means of packaging controlled substances, he removed the clear plastic baggie and saw that it contained a white powdery residue. He then arrested the defendant for possession of a controlled substance. A further investigation yielded more controlled substances on the defendant's person and in his car. Before trial the defendant moved to suppress the seized evidence, the trial court denied the motion. On appeal, the defendant argued that the officer's removal of the baggie exceeded the permissible scope of a frisk under ORS 131.625(2). ³ We looked beyond the plain language of the statute and determined the permissible scope of a frisk under ORS 131.625(2) in light of the legislative purpose to codify, in part, the principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). 129 Or.App. at 606, 880 P.2d 468. We affirmed, and held that an officer has the authority under ORS 131.625(2) to take whatever steps are reasonably necessary to take possession of an object that the officer feels during a frisk, if the officer has a reasonable suspicion, based on specific and articulable facts, that the object might contain a weapon. Upon review, the Supreme Court remanded for us to reconsider our decision in light of State v. Hoskinson, 320 Or. 83, 879 P.2d 180 (1994). We affirmed on remand; our holding illustrates our understanding that an officer's safety concern need only be that the object he or she feels during a pat down "might" contain a weapon:

"[T]he officer here gave very clear reasons as to why he was concerned that the object that he felt might have contained a weapon: Despite his repeated...