State v. Smith

• Decision Date: 06 April 2016
• Docket Number: A153778.,121337
• Citation: 277 Or.App. 298,373 P.3d 1089
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Phillip Dewey SMITH, Jr., Defendant–Appellant.
• Court: Oregon Court of Appeals

277 Or.App. 298

373 P.3d 1089

STATE of Oregon, Plaintiff–Respondent

v.Phillip Dewey SMITH, Jr., Defendant–Appellant.

121337

A153778.

Court of Appeals of Oregon, In Banc.

Argued and Submitted March 30, 2015.

Resubmitted en banc Jan. 7, 2016.

Decided April 6, 2016.

Emily P. Seltzer, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jamie K. Contreras, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General.

Before HADLOCK, Chief Judge, and ARMSTRONG, ORTEGA, SERCOMBE, DUNCAN, EGAN, DeVORE, TOOKEY, GARRETT, FLYNN, DeHOOG, and SHORR, Judges.

SERCOMBE, J.

Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894. He 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 patdown of his clothing. Defendant contends that the court erred when it determined that the patdown search was justified by the officer safety exception to the warrant requirement under Article I, section 9, of the Oregon Constitution.¹ On review for errors of law, State v. Ehly, 317 Or. 66, 74–75, 854 P.2d 421 (1993), we conclude that the trial court erred in determining that the search was justified by the officer's reasonable suspicion, based on specific and articulable facts, that defendant might pose an immediate threat of serious physical injury to the officer. Accordingly, we reverse and remand.

In its memorandum opinion and order denying defendant's motion to suppress, the trial court set forth its factual findings:

“Officer Derrick [Scott] testified that on May 5, 2012, he was on routine patrol on U.S. Forest Service Road 1726 when he came upon a group of five males shooting guns at targets on live trees. This remote area had been known for people using trees for target practice and several trees had been shot down due to repeated gunshot fire. It was also known for people leaving garbage strewn about the area. Officer * * * [Scott] testified that he was going to issue citations for the federal violation of damaging trees.

“He had the individuals secure their weapons in their vehicles and then did an officer safety pat-down search of each of the individuals for weapons. When he patted down Defendant, he felt a pipe in his pocket. He asked the group if any of them had marijuana on them and they responded in the negative. He then asked Defendant what the pipe was for and Defendant responded, ‘Meth.’ He then placed * * * Defendant in handcuffs and retrieved the pipe, which was a glass pipe with residue that looked like methamphetamine. Defendant was arrested and charged with Unlawful Possession of Methamphetamine.”

Defendant filed a pretrial motion to suppress the evidence obtained as a result of Scott's warrantless patdown of his clothing, asserting that the patdown violated Article I, section 9. In support of his motion to suppress, defendant contended that the officer's warrantless patdown was not justified by officer safety concerns, and, thus, all evidence derived from the unlawful search should be suppressed.

At the hearing on the motion to suppress, Scott acknowledged that, when he approached the group, defendant and his companions complied with his request to secure their weapons and were not difficult or threatening. More specifically, Scott testified that (1) he had no difficulty in getting the members of the target-shooting group who were armed to put their rifles in a secure location; (2) when he first encountered defendant, defendant was not committing a crime—Scott suspected that defendant had violated a Forest Service regulation that proscribed damaging trees; (3) there was nothing about defendant's “demeanor or how he handled himself” that was concerning—defendant was, in fact, “compliant” and “positive” and was not “combative in any way”; (4) defendant did not do anything “towards” him that gave Scott any concern for his safety; (5) other than some members of the group being armed when Scott approached the group, there was nothing that “anybody did at that scene, themselves, that caused [him] concern for [his] safety”; and (6) at the time of the patdown searches, Scott did not see any evidence that “anybody had any handguns or knives, anything like that.”

Nevertheless, Scott testified that he conducted the patdown search for the following reasons: (1) he was alone; (2) he was in a remote area known for people illegally shooting at live trees and leaving trash; (3) his backup was one and a half to two hours away; (4) he initially approached a group of five unknown individuals with firearms in their possession; (5) the first thing he said to the group was that he is an officer with the Forest Service and that he was making contact with them about violations relating to their use of firearms to illegally damage forest property and leaving trash behind; (6) he planned to issue them citations for those violations; and (7) he did not know if any individuals in the group had any concealed weapons after he had them secure their visible firearms a couple feet away from where he spoke to the group during the encounter. That said, Scott summed up his reason for conducting the patdown search: “[T]hey had guns, that's enough.”²

In light of that evidence, the state argued that Scott's patdown search of defendant was “completely reasonable under the circumstances” due to officer safety concerns. The court agreed and denied defendant's motion to suppress.

As noted, on appeal, defendant contends that the trial court erred in denying his motion to suppress evidence obtained as a result of the warrantless patdown. In his view, the officer safety exception to the warrant requirement does not apply because, to the extent Scott believed that defendant posed an immediate threat, that belief was not reasonable. According to defendant, there must be specific, articulable facts to justify an officer's conclusion that a person presents an immediate threat of harm. He asserts that, in this case, once he and his friends had secured their firearms and he was otherwise cooperative, Scott could not have reasonably believed that defendant posed an immediate threat. In defendant's view, Scott's decision to conduct a patdown at that point was unnecessarily intrusive and disproportionate to any perceived threat. The state, for its part, contends that the officer reasonably feared for his safety under the circumstances and, therefore, the search was justified under the officer safety exception.

“Normally, in order for a search to be constitutionally permissible, the police must have a search warrant.” State v. Paulson, 313 Or. 346, 351, 833 P.2d 1278 (1992). The Supreme Court has stated that “[e]vidence is not suppressed unless the search was ‘unreasonable’ under Article I, section 9, of the Oregon Constitution.” Id. “A warrantless search by the police is ‘reasonable’ under Article I, section 9, when the search falls into one or another of the recognized exceptions to the warrant requirement.” Id. One such exception is the “officer safety” doctrine articulated by the Supreme Court in State v. Bates, 304 Or. 519, 524, 747 P.2d 991 (1987) :

“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.”

Under the officer safety exception to the warrant requirement, the state must establish that “the officer subjectively believed that the defendant posed a threat” and “that the officer's belief was objectively reasonable.” State v. Rodriguez–Perez, 262 Or.App. 206, 213, 325 P.3d 39 (2014). “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. (quoting State v. Jackson, 190 Or.App. 194, 198, 78 P.3d 584 (2003), rev. den., 337 Or. 182, 94 P.3d 877 (2004) ); see also State v. Miglavs, 337 Or. 1, 12, 90 P.3d 607 (2004) (pertinent facts to justify an officer safety search must be “sufficiently particularized to defendant as required under Article I, section 9 ”). “In determining whether an officer's concern for safety was objectively reasonable, we consider ‘the totality of the circumstances as they reasonably appeared to the officer at the time.’ ” Rodriguez–Perez, 262 Or.App. at 213, 325 P.3d 39 (quoting Jackson, 190 Or.App. at 199, 78 P.3d 584 (brackets and ellipses omitted)).

Thus, the issue on appeal is whether Scott's safety concern was objectively reasonable at the time of the search. That is, the issue is whether the concern was “based on facts specific to [defendant], not on intuition or a generalized fear that [defendant might] pose a threat to [Scott's] safety.” Id. at 213, 325 P.3d 39 (internal quotation marks omitted). Accordingly, we must determine whether there was sufficient evidence about defendant's demeanor, conduct, or status that suggested that defendant posed an immediate threat of serious injury to Scott. We conclude that there was not.

Bates supplies the core of the applicable analysis. There, police officers stopped an automobile driven by the defendant in the early morning hours in a high-crime area. 304 Or. at 521, 747 P.2d 991. A television and videocassette recorder in the automobile were in plain view of the officers. Id. The defendant failed to pull a bag that was partially under the front seat of the automobile into view as directed. Id. The officers then searched the bag and the...