State v. Kennedy

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff-Respondent, v. John Alan KENNEDY, Defendant-Appellant.
• Citation: 392 P.3d 382,284 Or.App. 268
• Docket Number: A159592
• Court: Oregon Court of Appeals
• Decision Date: 08 March 2017

284 Or.App. 268

392 P.3d 382

STATE of Oregon, Plaintiff-Respondent,

v.John Alan KENNEDY, Defendant-Appellant.

A159592

Court of Appeals of Oregon.

Argued and submitted December 21, 2016.

March 8, 2017

Kyle Krohn, Deputy Public Defender, argued the cause for appellant. With him on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Duncan, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

GARRETT, J.

Defendant appeals a judgment of conviction on one count each of carrying a concealed weapon, ORS 166.240, and felon in possession of a restricted weapon, ORS 166.270(2). Defendant assigns error to the trial court's denial of his motion to suppress evidence. The issue on appeal is whether the trial court correctly ruled that a police officer's patdown of defendant was justified by the officer-safety exception to the warrant requirement. For the reasons explained below, we conclude that, under the totality of the circumstances, the officer did not have an objectively reasonable belief that defendant posed an immediate threat of serious physical injury. Accordingly, we reverse and remand.

The facts are undisputed. Two witnesses called police regarding a vehicle that appeared to have driven off the road and into a thicket of blackberry bushes. Officer Dunbar responded to the scene and observed an empty vehicle with dealer license plates in the bushes, at the end of a rough dirt road. Dunbar called the dealer and learned that the vehicle had been stolen. The witnesses described two men who had been with the vehicle earlier and had then left the scene. While Dunbar was waiting for a tow truck to arrive, defendant walked up the road in the direction of Dunbar and the witnesses. The witnesses identified defendant as one of the men associated with the vehicle.

Dunbar drew his firearm and ordered defendant to get on his knees and place his hands on his head. Defendant, who was approximately 30 feet away, complied, and remained in that position for several minutes. When a second officer arrived at the scene a few minutes later, Dunbar patted defendant down and discovered a switchblade knife. Defendant was charged with carrying a concealed weapon, ORS 166.240, and felon in possession of a restricted weapon, ORS 166.270(2).

Defendant moved to suppress the evidence of the knife, arguing that the stop was unlawful because Dunbar lacked reasonable suspicion that defendant had committed a crime, and that the patdown was unlawful because it was not supported by reasonable suspicion that defendant posed a threat of serious physical injury at the time of the search. At the hearing, Dunbar testified that he was concerned for his safety because his cover officer was "minutes away, at best"; he knew from training and experience that "someone stealing a car can be extremely dangerous" and possess weapons; he found it unusual that defendant returned to the scene (a dead-end road with no businesses); the other person whom the two witnesses had connected to the car was unaccounted for; and defendant was walking straight toward him.

The trial court denied defendant's motion. As to the patdown, the trial court explained:

"While the officer was waiting for a tow, he saw the defendant walking back on foot without a vehicle, again, in an area where there's no real other reason for somebody to be there and, therefore, it was reasonable for him to suspect that the defendant was, in fact, associated with the crime of the stolen vehicle.

"With regard to the safety of the officer, the officer, I find, subjectively believed that the defendant posed an immediate threat to his physical safety, and that was objectively reasonable for the reasons I have already articulated and in addition to the fact that the officer testified that from his training and experience car thieves carry weapons. In this case, this particular individual, who he associated with the theft of the vehicle, was returning to the scene on foot and walking directly towards him. The other person was unaccounted for. All of those things made it objectively reasonable for the officer to conduct the patdown that he did."

Defendant was convicted on all charges. On appeal, in a single assignment of error, he challenges the trial court's denial of his motion to suppress. Defendant does not contend that Dunbar lacked reasonable suspicion to stop him; he does challenge, however, the legality of the warrantless patdown. We review for legal error and are bound by the trial court's factual findings if they are supported by evidence in the record. State v. Ehly , 317 Or. 66, 74-75, 854 P.2d 421 (1993).

Under Article I, section 9, of the Oregon Constitution,¹ Dunbar's warrantless patdown of defendant was unlawful unless it fell within a recognized exception to the warrant requirement. See State v. Rudder , 347 Or. 14, 21, 217 P.3d 1064 (2009) ("It is well settled * * * that a warrant normally is a prerequisite to any search and that, as a general rule, warrantless searches are per se unreasonable unless they fall within one or another of the established exceptions to the warrant requirement."). The state relies on the well-established "officer safety" exception, which allows 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."

State v. Bates , 304 Or. 519, 524, 747 P.2d 991 (1987). The state bears the burden of proving that an officer's search is justified by the officer-safety exception. State v. Thomas , 276 Or.App. 334, 337, 367 P.3d 537 (2016). Satisfying that burden requires the state to prove both that the officer subjectively believed that the defendant posed an immediate threat of serious physical injury and that the officer's belief was objectively reasonable. Id. In this case, defendant does not appear to challenge the trial court's finding that Dunbar was subjectively concerned for his safety; rather, defendant argues that Dunbar's concern was not objectively reasonable.

Determining whether an officer's safety concern was objectively reasonable requires us to consider the totality of the circumstances as they reasonably appeared to the officer at the time of the warrantless search. State v. Jackson , 190 Or.App. 194, 199, 78 P.3d 584 (2003), rev. den. , 337 Or. 182, 94 P.3d 877 (2004) ; see also Bates , 304 Or. at 525, 747 P.2d 991 (explaining that the underlying question is whether "any of the circumstances confronted by the officer either individually or collectively justify a reasonable suspicion that the defendant posed an immediate threat"). "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." State v. Smith , 277 Or.App. 298, 303, 373 P.3d 1089, rev. den. , 360 Or. 401, 381 P.3d 844 (2016) (internal quotation marks omitted).

According to the state, Dunbar's testimony at the suppression hearing establishes objectively reasonable grounds for his subjective belief that defendant posed a safety threat. Dunbar testified that (1) he suspected defendant of being a car thief; (2) he knew from training and experience that...