State v. Keck

Docket NumberA174471
Decision Date27 September 2023
Citation328 Or.App. 296,537 P.3d 163
PartiesSTATE of Oregon, Plaintiff-Respondent, v. Timothy Jon KECK, Defendant-Appellant.
CourtOregon Court of Appeals

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Meredith Allen, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Powers, Judge, and Hellman, Judge.

ORTEGA, P. J.

Defendant appeals from a judgment of conviction for felon in possession of a firearm, assigning error to the denial of his motion to suppress evidence obtained during a traffic stop. He challenges the trial court's determination that officer-safety concerns, reasonable suspicion, and probable cause justified extending the traffic stop to order him out of his truck and to handcuff him, which led to discovery of the disputed evidence. We conclude that the officer's actions were justified and, accordingly, affirm.

"We review [a trial court's] 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. Bailey , 307 Or.App. 782, 783, 479 P.3d 304 (2020). We take most of the relevant historical facts, which are undisputed, from the audio transcript of the officer's body camera recording of the traffic stop. Although not admitted into evidence, "the recording was played into the record at the hearing on the motion to suppress and thereby made part of the transcript," as in State v. Soprych , 324 Or.App. 659, 661, 527 P.3d 808 (2023).

Officer McBride pulled defendant over for a traffic violation around 4:30 a.m. while defendant was on his way to do construction work. Upon approaching defendant's truck, McBride saw the handle of a knife tucked between the driver and passenger seats and told defendant, "I see the knife there. * * * As long as it stays there, we're good." Defendant complied, as he did throughout the encounter. McBride assessed that it was "a large knife" and, based on his training and experience identifying and evaluating weapons, he believed that what he saw was the handle of a dagger.1 McBride testified that what he saw at the time triggered officer-safety concerns.

McBride contacted dispatch by radio to run a warrant check on defendant and requested a cover unit. Dispatch informed McBride that defendant was on probation for assault, but defendant denied that when McBride sought his confirmation.2 As McBride inquired about the conditions of defendant's probation, he advised, "now I'm just waiting for another officer to get here so you and I are both safe." McBride testified that his impression was that the knife could be an "easily accessible weapon," and that there would be "no reason to have a knife stuffed down in there."

McBride asked whether defendant had "other weapons in the vehicle," and defendant replied that he had his work tools. McBride told defendant that, given the knife's approximately six-inch handle, he thought its blade could be longer, and defendant responded, "probably about 10 inches * * * like a machete." McBride told defendant, "That's going to be a prohibited weapon, per your probation, for you to possess." They continued to talk about the knife and about defendant's probation, and McBride asked again, "So besides that knife there, no other weapons?" Defendant responded, "There's another knife over here"—apparently referring to an area inside of the truck—and "I don't know why it's there."

When Officer Hendrick arrived, McBride told him, "So [defendant has] probably about a 14-inch knife sitting down on the seat right next to him" and "I'm going to pull him out, pat[ ] him down real quick here." McBride then instructed defendant to get out of the truck. After defendant did so, McBride said, "Put your hands behind your back. You're not under arrest. I'm just making sure you don't have any weapons." McBride testified that his plan in asking defendant to get out of the truck was "to make sure there were no other weapons with him."

As defendant stood outside of the truck with his hands behind his back, McBride asked, "So do you have any other weapons on you, on your person right now?" Defendant replied that he had a pocketknife on his belt and also a multi-tool with him. McBride continued:

"So palms together. * * * Just for my safety for right now—you're not under arrest, but I'm going to put you in handcuffs * * *.
"* * * * *
"Since * * * you are in handcuffs—right now you are not under arrest; you're only being detained. I'm going to advise you of Miranda rights, though * * *."

McBride then advised defendant of his Miranda rights and asked defendant, "Do you have any other weapons? Firearms? Guns? Drugs? Anything like that?" Defendant told McBride that he had a .22-caliber revolver in the floor-board in the back seat. McBride asked, "May I retrieve that from your vehicle?" Defendant responded, "Yes, sir, you may." McBride searched defendant's truck and retrieved the revolver. During the interaction, defendant was calm, cooperative, not argumentative, pleasant, followed McBride's directions, and did not try to reach for anything, including the knives.

The state charged defendant by indictment with felon in possession of a firearm (the revolver), ORS 166.270, and carrying a concealed weapon (the pocketknife), ORS 166.240. He moved to suppress all the evidence obtained as a result of the search of his person and his truck, including his statements, the knives, and the revolver, challenging McBride's authority to stop him and run the warrant check. Defendant alternatively argued that, even if the stop was lawful, the officer lacked an objective basis for safety concerns and lacked reasonable suspicion or probable cause that defendant had committed a crime to justify extending the traffic stop.3

The trial court denied defendant's motion to suppress, first concluding that the traffic stop and the warrant check were lawful. The court also concluded that McBride's observation of the knife handle, along with his belief that defendant was not being honest about his probation and that defendant was in fact on probation for assault, despite that belief being mistaken, was enough to give rise to objective officer-safety concerns that justified McBride's questions about weapons.4 Furthermore, the court concluded that McBride's belief that defendant was a felon on probation—and defendant's admission that he was in fact a felon, though not for assault—indicated that McBride's subjective belief that defendant was violating his probation or was in possession of a restricted weapon was objectively reasonable.5 The court noted that defendant presented no evidence to contradict that McBride's training and experience justified his belief that what he saw appeared to be the handle of a dagger.

In a stipulated facts trial, the court convicted defendant of one count of felon in possession of a firearm, based on McBride's discovery of the revolver in defendant's truck, and acquitted defendant of the count of carrying a concealed weapon.

On appeal, defendant assigns error to the trial court's denial of his motion to suppress. He argues first that McBride had no objectively reasonable officer-safety concerns to justify expanding the traffic stop to the point of handcuffing him outside the truck. Second, he argues that, in the absence of officer-safety concerns, handcuffing him was an unlawful arrest because McBride did not have probable cause or reasonable suspicion that defendant was a felon in possession of a restricted weapon or was violating his probation. According to defendant, neither McBride's mistaken belief that defendant was on probation for assault nor McBride's observation of the handle of the knife was sufficient to raise probable cause or reasonable suspicion, because the first provided no information about defendant's conduct and the second was speculative.

The state contends that the trial court did not err. It argues that the court properly concluded that McBride's observation of what he believed to be a dagger next to defendant gave him objectively reasonable officer-safety concerns that justified asking defendant about weapons. The state alternatively contends that McBride's extension of the traffic stop was justified by reasonable suspicion, based on his belief that defendant was on probation for assault and that defendant could be violating his probation or carrying a restricted weapon. According to the state, McBride's reasonable suspicion independently justified taking steps to investigate those crimes, including asking defendant about weapons and ordering him out of the truck. Finally, the state contends that defendant's statement that he had a pocketknife in his belt also raised officer-safety concerns that justified handcuffing and patting defendant down. After reviewing the record, we agree that the trial court did not err.

The Oregon Constitution protects the right of persons to be secure "against unreasonable search, or seizure[.]" Or. Const., Art. I, § 9. A traffic stop is a temporary investigative seizure that implicates Article I, section 9. State v. Arreola-Botello , 365 Or. 695, 712, 451 P.3d 939 (2019). " Article I, section 9, ensures that officers do not turn minor traffic violations into criminal investigations without a constitutional basis for doing so." Id. at 713, 451 P.3d 939. All investigative activities during a traffic stop "must be reasonably related to the purpose of the traffic stop or supported by an independent constitutional justification." State v. Sherriff , 303 Or.App. 638, 647, 465 P.3d 288 (2020). Justifications for a warrantless extension of a traffic stop exist when an officer's safety is at issue or when the officer develops a reasonable suspicion that the...

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