State v. Lumpkin

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Respondent, v. Jamie Dale LUMPKIN, Appellant. 91CR0280ST; CA A72934. . *
• Citation: State v. Lumpkin, 880 P.2d 468, 129 Or.App. 601 (Or. App. 1994)
• Court: Oregon Court of Appeals
• Decision Date: 24 August 1994

Page 468

880 P.2d 468

129 Or.App. 601

STATE of Oregon, Respondent, v. Jamie Dale LUMPKIN, Appellant.

91CR0280ST; CA A72934.

Court of Appeals of Oregon In Banc. ^*

Argued and Submitted April 28, 1993.

Resubmitted In Banc April 6, 1994.

Decided Aug. 24, 1994.

David C. Degner, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Robert M. Atkinson, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

DEITS, Judge.

Defendant appeals his conviction, on stipulated facts, for possession of a controlled substance. ORS 475.992(4)(b). He assigns error to the trial court's denial of his motion to suppress evidence seized from his person and his vehicle. We affirm.

On the morning of April 24, 1991, Officer Ludwig responded to a report that a person matching defendant's description was attempting to break into a car parked near an elementary school. Ludwig confronted defendant, who was confused and distracted. His eyes darted from side to side as Ludwig asked him questions about why he had approached the car. He paced around and moved his hands and body in an agitated manner. When defendant was asked for identification, his answers were initially incoherent and nonresponsive; however, he eventually communicated his identity by producing a citation that he had received following a car accident several hours earlier. Because Ludwig's observations of defendant caused him to be concerned that defendant would attempt to flee or fight before the initial inquiry was completed, Ludwig asked defendant to place his upper body and hands on the trunk of the patrol car. Ludwig suspected that defendant might be under the influence of controlled substances, but he did not intend to search defendant at that time and did not place him under arrest.

While in this position, defendant continued to act "fidgety." On two occasions during the questioning, defendant stiffened his arms, arched his back, lifted his torso from the trunk, and placed his hands toward his body out of Ludwig's view, contrary to Ludwig's express instructions. Concerned that defendant might have been reaching for a weapon, Ludwig did a cursory pat of defendant's waist area and then patted the front of his jacket. He felt no bulky item but was concerned that a soft bulge that he felt in a breast pocket might contain a razor blade or a fish hook. Ludwig reached into the pocket to remove the item, which was a small orange and black nylon pouch in which he could see the edge of a clear plastic baggie. Recognizing the clear baggie as a common means of packaging controlled substances, Ludwig removed the clear baggie from the pouch and saw that it contained a white powdery residue. Ludwig arrested defendant for possession of a controlled substance and conducted a search for more controlled substances. He found $258 in defendant's wallet and another baggie with white powder residue in defendant's pants pocket.

After he was taken to the police station for booking, defendant continued to deny any attempt to steal the car. ¹ He said that he had wrecked his own car several hours earlier, while he was high, and that he had been on his way to the towing company to retrieve his car and drive home to California. Defendant then consented to Ludwig's request to search the car at the towing company. During that search, Ludwig discovered and seized more controlled substances.

Defendant filed a motion to suppress the seized evidence. The trial court granted the motion in part, suppressing statements made by the defendant after the nylon pouch was found and additional evidence seized by Ludwig at the police station. Defendant appeals that part of the order allowing the use of the evidence seized during the frisk, the search of his person and the later search of his car.

Defendant does not challenge the validity of the initial stop. ² He first argues that the officer lacked a reasonable basis for asking him to place his upper body and hands on the trunk of the police car. We are bound by the trial court's findings of fact on this issue, which are supported by evidence in the record. State v. Miller, 300 Or. 203, 227, 709 P.2d 225 (1985). The court found that

"[t]he Defendant's eyes darted around from side to side. The Defendant fidgeted his feet. He paced around and he appeared agitated. * * * The officer testified that based upon his experience these symptoms were precursors to a suspect fleeing."

Because Ludwig reasonably believed that defendant might flee during the inquiry, his request that defendant place his hands and upper body on the trunk was permissible. See State v. Hasan, 93 Or.App. 142, 760 P.2d 1377 (1988).

Defendant next argues that the frisk for weapons was not justified under ORS 131.625. ORS 131.625(1), which is part of Oregon's "stop and frisk" law, allows a peace officer to conduct an external patting of a stopped person's outer clothing "if the officer reasonably suspects that the person is armed and presently dangerous." See ORS 131.605(2). "Reasonably suspects" means that the officer "holds a belief that is reasonable under the totality of the circumstances existing at the time and place the peace officer acts." ORS 131.605(4). An officer's generalized concern for safety is not sufficient to justify a frisk. Rather, the officer must articulate particularized facts creating a reasonable suspicion that the stopped person poses an immediate threat. State v. Matthys, 106 Or.App. 276, 282, 808 P.2d 94 (1990), rev. den. 311 Or. 433, 812 P.2d 828 (1991).

At the suppression hearing, Officer Ludwig identified such particularized facts. He testified that he thought that defendant was about to run away from him or was possibly going to fight with him. ³ He stated that "there was a strong likelihood" that defendant was under the influence of controlled substances. He also testified that, despite his instructions to defendant to keep his arms spread on the trunk of the car, defendant twice pulled his arms and hands toward his midsection and out of Ludwig's view. Ludwig stated that these actions led him to believe that defendant possibly was reaching for a weapon. We conclude that Ludwig's belief that defendant was armed and posed an immediate threat to his safety was reasonable under the totality of the circumstances and that he was justified in frisking defendant. The trial court did not err in finding that the frisk was authorized.

Defendant next argues that even if the frisk was justified, the officer exceeded the permissible scope of the frisk. The pertinent statute is ORS 131.625(2), which provides:

"If, in the course of the frisk, the peace officer feels an object which the peace officer reasonably suspects is a dangerous or deadly weapon, the peace officer may take such action as is reasonably necessary to take possession of the weapon."

Defendant contends that the statute did not authorize Ludwig to take possession of the object that he felt in defendant's pocket because Ludwig did not testify that he reasonably suspected that what he felt, a "soft bulge," was itself a weapon. The state, on the other hand, argues that the statute should be read to allow the removal of an item felt during an authorized frisk if an officer reasonably suspects, based on specific and articulable facts, that the object contains a dangerous or deadly weapon.

When interpreting a statute, we first look to its text and context. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-11, 859 P.2d 1143 (1993). Because either reading of the statute is plausible here, we look to the legislative history to inform our inquiry of the legislative intent. PGE v. Bureau of Labor and Industries, supra, 317 Or. at 611-12, 859 P.2d 1143. The legislative purpose in enacting the stop and frisk statutes was to codify some of the principles set out by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). State v. Davis, 295 Or. 227, 240 n. 17, 666 P.2d 802 (1983); see also State v. Valdez, 277 Or. 621, 625, 561 P.2d 1006 (1977). The Court in Terry held that an officer who reasonably believes that a lawfully stopped person is armed and dangerous may frisk the person to the extent necessary to discover weapons. The Court emphasized that "reasonableness in all circumstances" is the central inquiry when evaluating the constitutionality of a search. Terry v. Ohio, supra, 392 U.S. at 26, 88 S.Ct. at 1882. In view of the legislative purpose to codify, at least in part, the principles of Terry, we conclude that if an officer has a reasonable suspicion, based on specific and articulable facts, that an object felt during a frisk contains a dangerous or deadly weapon, the statute allows the officer to take reasonable steps necessary to take possession of the object. ⁴

Further, although not directly applicable, our reading of the statute is consistent with decisions regarding permissible police action under analogous circumstances. In State v. Bates, 304 Or. 519, 524, 747 P.2d 991 (1987), the Supreme Court analyzed the issue of officer safety under the Oregon Constitution and concluded 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." (Emphasis supplied.)

Accordingly, if an officer is engaged in a lawful encounter with a citizen and develops a reasonable suspicion that the person is potentially dangerous, our review of the officer's actions focuses on whether the safety precautions taken were "reasonable under the circumstances as they reasonably...