State v. Davenport

• Decision Date: 12 August 2015
• Docket Number: 10CR2224FE,A149453.
• Citation: 272 Or.App. 725,357 P.3d 514
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Jimmy Edward DAVENPORT, Defendant–Appellant.
• Court: Oregon Court of Appeals

272 Or.App. 725

357 P.3d 514

STATE of Oregon, Plaintiff–Respondent

v.Jimmy Edward DAVENPORT, Defendant–Appellant.

10CR2224FE

A149453.

Court of Appeals of Oregon.

Submitted Oct. 30, 2013.

Decided Aug. 12, 2015.

Peter Gartlan, Chief Defender, and Andrew D. Robinson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.

Before DUNCAN, Presiding Judge, and HASELTON, Chief Judge, and SCHUMAN, Senior Judge.

Opinion

DUNCAN, P.J.

In this criminal case, defendant appeals the trial court's judgment convicting him of unlawful possession of methamphetamine. ORS 475.894. On appeal, defendant assigns error to the trial court's denial of his motion to suppress evidence obtained as a result of a law enforcement officer's warrantless removal of a small object from defendant's pocket. The parties dispute whether the officer's removal of the object was justified by the officer-safety exception to the warrant requirement. For the reasons explained below, we conclude that it was not, and, therefore, we reverse and remand.

We review the trial court's denial of defendant's motion to suppress for errors of law, and we are bound by the trial court's findings of fact, provided that there is constitutionally sufficient evidence in the record to support them. State v. Ehly, 317 Or. 66, 74–75, 854 P.2d 421 (1993). Stated in accordance with that standard, the relevant facts are as follows.

Around 2:00 a.m., a law enforcement officer stopped defendant for having an obstructed registration sticker on his vehicle. The officer contacted defendant and observed that he appeared to be drug impaired. He was overly talkative, his speech was slurred, and he was grinding and biting down on his teeth; he also had dry mouth, twitchy fingers, and wide-open eyes. At the officer's request, defendant provided his driver's license. The officer returned to his patrol car, ran a records check, called for backup, and informed dispatch that he intended to administer field sobriety tests (FSTs).

The officer asked if defendant would voluntarily submit to FSTs, and defendant refused. The officer then Mirandized defendant and informed him that he had probable cause to arrest him for DUII, and that he should submit to FSTs “to prove * * * that he was not impaired.” Defendant agreed to submit to the FSTs. The officer asked defendant if he had any weapons, and defendant answered that he had a “BB gun pistol” in the vehicle. The officer asked defendant where the BB gun was located, and defendant answered that it was “down by the gearshift[.]” Using his flashlight, the officer looked into defendant's vehicle, but did not see the BB gun. Defendant leaned forward as if he was “trying to show” the officer the BB gun.

At that point, the officer ordered defendant to get out of the vehicle. Defendant complied. He closed the driver's side door behind him and moved about 10 feet away from the vehicle. The officer then conducted a patdown search of defendant to check for weapons and found none.

During the patdown search, the officer felt an object that was “similar in feel to a weapon cartridge” in defendant's sweatshirt pocket. The object felt “approximately three inches long” and “about the size of a small battery,” which, according to the officer, was “very consistent with [the] length and diameter [of] a bullet.” The object was also “round and hard[,]” which was “consistent with a cartridge and bullet.” The officer asked defendant for permission to remove the object. Defendant refused. The officer then removed the object.

The officer asked defendant what the object was because he could not tell. Defendant answered that the object was a container. The officer then asked defendant what was in the container, and defendant said that he did not know, but the officer could “go ahead and look.” The officer opened the object and found a couple of small “plastic bindles” that contained white residue, which tested positive for methamphetamine.

After being charged with possession of methamphetamine, defendant moved to suppress the evidence obtained as a result of the officer's removal of the object from his pocket, asserting that the removal violated Article I, section 9, of the Oregon Constitution.¹ In a memorandum in support of his motion, defendant argued, among other things, that the officer's warrantless seizure of the object from his pocket violated Article I, section 9, because the officer's suspicion that the object could be a weapon was unreasonable.

At the hearing on the motion, the officer testified regarding his reason for removing the object from defendant's pocket:

“What I was thinking that if for [some] unfortunate reason that me and [defendant] happened to get into a physical altercation and he did have a weapon inside that vehicle, and lo and behold that that was the only cartridge for that weapon, I wanted to remove that, that cartridge and have that cartridge in my person, because like I said, [defendant] was much, much larger than me ^{[ 2 ]} and if we would have got into a physical altercation and he would have headed back towards that vehicle more likely than not I would have not been able to physically stop him.

“So ultimately what I was trying to do was remove it if it was a bullet and cartridge and secure it in my pocket.”

At the conclusion of the hearing, the state argued that the officer was justified in removing the object from defendant's pocket for officer-safety purposes. In response, defendant argued that the officer “did not have reasonable grounds to search him for a weapon.” In particular, defendant argued that it was not objectively reasonable for the officer to think either that the object was a bullet or that defendant would rush back to his truck to load a weapon with the object. The trial court denied defendant's motion in a letter opinion, stating that the officer's removal of the object from defendant's pocket was “within the scope of reasonable officer safety measures[.]”

On appeal, defendant renews his argument that the officer's removal of the object from his pocket violated Article I, section 9, and the parties dispute whether the officer's removal of the object from defendant's pocket was justified under the officer-safety exception to the warrant requirement.³ In State v. Bates, 304 Or. 519, 747 P.2d 991 1987 ), the Supreme Court articulated the requirements that must be met in order for that exception to apply, stating that an officer may 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.”

Id. at 523–24, 747 P.2d 991. In order for an officer's actions to be justified under the officer-safety doctrine: “(1) the officer's actions must have occurred during a lawful encounter; ^4[] (2) the officer must have had a reasonable suspicion that the individual posed an immediate threat of serious physical injury; and (3) the steps the officer took to protect the officer or others must have been reasonable.” State v. Rodriguez–Perez, 262 Or.App. 206, 212, 325 P.3d 39 (2014).

When the state seeks to rely on the officer-safety exception to the warrant requirement to justify a warrantless search or seizure, the state must prove “that the officer had a reasonable suspicion, based on specific and articulable facts, that the defendant posed an immediate threat of serious physical injury.” Id. at 212–13, 325 P.3d 39 (citing State v. Hendricks, 213 Or.App. 360, 364, 160 P.3d 1014, rev. den., 343 Or. 467, 172 P.3d 249 (2007) ).⁵ To do so, the state must prove not only that the officer subjectively believed that the defendant posed a threat, but also that the officer's belief was objectively reasonable. Id. at 213, 325 P.3d 39. In this case, defendant does not dispute that the officer had a subjective concern for his safety; he disputes whether that concern was objectively reasonable.

When determining whether an officer's safety concern was objectively reasonable, we consider “the totality of the circumstances as they reasonably appeared to the officer[ ] at the time * * *[.]” State v. Jackson, 190 Or.App. 194, 199, 78 P.3d 584 (2003), rev. den., 337 Or. 182, 94 P.3d 877 (2004). To be objectively reasonable, “the officer's safety concerns must be based on facts specific to the particular person searched, not on intuition or a generalized fear that the person may pose a threat to the officer's safety.” Id. at 198, 78 P.3d 584.

We recognize that police officers in the field “frequently must make life-or-death decisions in a matter of seconds” and that “it is not our function to uncharitably second-guess an officer's judgment.” Bates, 304 Or. at 524, 747 P.2d 991. But, although we allow officers “considerable latitude to take safety precautions in such situations[,]” id. at 524, 747 P.2d 991, that latitude is “not carte blanche —there are limits to what officers can do under the justification of protecting their safety,” State v. Miears, 166 Or.App. 228, 235, 999 P.2d 493, rev. den., 331 Or. 192, 18 P.3d 1099 (2000). As the Supreme Court emphasized in State v. Rudder, 347 Or. 14, 23, 217 P.3d 1064 (2009),

“the concept of reasonableness in [the context of the officer-safety exception] is not biased in favor of the concerns of the police. Although this court is sensitive to the dangers inherent in police work and to the difficulties inherent in officer safety decisions, that does not and cannot mean that we regard those concerns as having greater weight than the constitutional right of all persons—even those who have been stopped on suspicion of criminal activity—to be free of unreasonable searches and seizures.”

When an officer reasonably...