State v. Redmond

• Jurisdiction: Oregon
• Decision Date: 08 July 1992
• Citation: State v. Redmond, 834 P.2d 516, 114 Or.App. 197 (Or. App. 1992)
• Parties: STATE of Oregon, Respondent, v. David Lee REDMOND, Appellant. 90-0811; CA A69318.
• Court: Oregon Court of Appeals

Page 516

834 P.2d 516

114 Or.App. 197

STATE of Oregon, Respondent, v. David Lee REDMOND, Appellant.

90-0811; CA A69318.

Court of Appeals of Oregon.

Argued and Submitted Dec. 30, 1991.

Decided July 8, 1992.

James F. Callahan, Tigard, argued the cause and filed the brief for appellant.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before BUTTLER, P.J., and ROSSMAN and DE MUNIZ, JJ.

DE MUNIZ, Judge.

Defendant appeals his convictions for unlawful possession of a firearm, ORS 166.250, and possession of a controlled substance. ORS 475.992. He contends that the trial court erred in denying his motion to suppress evidence seized as a result of a frisk and subsequent search of his person during a traffic stop for several minor equipment violations. We affirm the conviction for unlawful possession of a firearm and reverse and remand on the conviction for possession of a controlled substance.

On March 25, 1990, at 1:23 a.m., Deputy Green observed three motorcycles and a Cadillac traveling south on McLoughlin Boulevard. Green and his partner, Deputy Shumway, followed the vehicles. The motorcyclists were all wearing black leather jackets and denim vests. The vests displayed the insignia of the "Brother Speed" motorcycle club. ¹ Defendant's motorcycle had excessively high handle bars, ORS 814.300(1); a "blue-dot" tail light, ORS 816.080(2); no turn signals, ORS 816.320(1)(e); and a license mounted so that it was not easily visible. ORS 803.550(2). Green notified the dispatcher that he was about "to stop a possible motorcycle gang" and requested assistance. He then turned on his overhead lights and tried to stop the group. The driver of the Cadillac pulled to within half a car length of the motorcycles "in an apparent attempt to prevent [Green] from getting behind [the motorcycles]." Green forced his way between the car and the motorcycles, and the riders pulled over to the curb. Green then stopped his patrol car and approached defendant.

Defendant had a patch on the back of his vest that identified him as the "Sergeant-at-Arms" of the Portland chapter of the Brother Speed club. While defendant was removing his helmet and goggles, Green saw a sheathed knife, which he immediately seized. He then frisked defendant and felt a number of "extremely hard, bulky items." Green began removing the items, more or less in the order in which he had felt them, to determine what they were. In defendant's inside vest pocket, he found a gun. After notifying the other officers present that he had found a gun, Green handcuffed defendant and proceeded to search him more thoroughly.

In the course of that search, Green found a small blue box and a brass and plastic pipe that contained marijuana residue. ² He then asked defendant's consent to open the blue box. Defendant refused. Thinking that the box might contain a weapon, Green opened it and found a small bindle of "a white, chunky powdery substance" that he believed to be methamphetamine. He arrested defendant for unlawful possession of a firearm and possession of a controlled substance. He also seized defendant's motorcycle and his wallet for forfeiture pursuant to a county ordinance. Defendant was then transported to the county jail.

While defendant was being "booked," Green opened the wallet to seize the money that he had seen in it earlier. When he removed the money, another small bindle of "white, chunky powdery substance" fell from the wallet. Green asked defendant what the bindle contained. Defendant replied, "I don't know." Laboratory analysis later revealed that the substance in both bindles was methamphetamine.

Defendant moved to suppress all the items seized. He argued that the seizures resulted from an illegal frisk. The court concluded that the frisk was lawful, because Green reasonably suspected that defendant might pose an immediate risk of serious physical injury. The court also concluded that the warrantless search of the blue box was unlawful and suppressed the methamphetamine found in it. However, the court concluded that the bindle of methamphetamine that had been in defendant's wallet would inevitably have been discovered as a result of jail inventory procedures and did not suppress it.

Defendant concedes that he was lawfully stopped. ³ He contends, however, that the frisk was unlawful because, once the knife had been seized, Green could not have reasonably suspected that defendant was presently armed and dangerous. We must determine whether the circumstances confronting Green supported a reasonable suspicion, based on particularized facts, that defendant might pose an immediate threat of serious physical injury to him. State v. Bates, 304 Or. 519, 524, 747 P.2d 991 (1987).

When Green encountered defendant and the other riders, it was one o'clock in the morning. His efforts to stop defendant had been obstructed by a car associated with defendant and the other riders. Green's training had made him aware that motorcycle club members "are known to carry various items of harm to [police officers] or the general public." In addition, he believed that the patch on defendant's jacket that identified him as the "Sergeant-at-Arms" of the club meant that defendant was an "enforcer" for the club and that he was likely to be armed. However, Green's perceptions of the stereotypical practices of motorcycle club members is the kind of generalized suspicion that seldom will constitute a reasonable suspicion based on particularized facts. See State v. Baldwin, 76 Or.App. 723, 729, 712 P.2d 120 (1985), rev. den., 301 Or. 193, 719 P.2d 1304 (1986).

In this instance, Green's generalized understanding of the practices of motorcycle club members became a specific and particularized reality when he saw that defendant was armed with a knife. The fact that he seized that most immediate and obvious threat, before undertaking a complete frisk, does not diminish the reasonableness of Green's belief that defendant might be armed with additional weapons and was presently dangerous. The frisk was...