State v. Sopiwnik

• Court: Oregon Court of Appeals
• Writing for the Court: BREWER, J.
• Citation: State v. Sopiwnik, 176 Or App 127, 30 P3d 430 (Or. App. 2001)
• Decision Date: 15 August 2001
• Parties: STATE of Oregon, Respondent, v. Joe Warren SOPIWNIK, Appellant.

30 P.3d 430

176 Or. App. 127

STATE of Oregon, Respondent, v. Joe Warren SOPIWNIK, Appellant.

C983712CR; A106504

Court of Appeals of Oregon.

Argued and Submitted May 31, 2001.

Decided August 15, 2001.

Monica L. Finch, Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, State Public Defender.

David J. Amesbury, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and BREWER, Judge, and CENICEROS, Senior Judge.

BREWER, J.

In this appeal from convictions for delivery of a controlled substance, ORS 475.992(1), and possession of a controlled substance, ORS 475.992(4), defendant argues that the trial court erred when it denied his motion to suppress evidence of methamphetamine discovered inside his jacket pocket by the arresting officer. The state contends that the officer's search of the pocket was a valid search incident to arrest. We review the trial court's legal conclusions for errors of law, and we are bound by its factual findings if there is sufficient evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). We affirm.

The following facts are undisputed. On October 18, 1998, defendant committed two traffic infractions while driving a car at a high rate of speed. Deputy Schuster initiated a traffic stop as defendant pulled into a convenience store parking lot. Upon parking, defendant rapidly got out of his vehicle. He also appeared to be nervous. Schuster got out of his patrol car and quickly approached defendant. Defendant was wearing a denim jacket with two breast pockets and two hip pockets. Defendant told Schuster his name, his date of birth, and that he did not have a driver's license. Defendant fidgeted, moved his hands, and did not make eye contact with Schuster.

Schuster contacted his dispatcher, who informed him that defendant's driver's license was suspended and that defendant was on probation for theft. The dispatcher also advised Schuster that defendant had been convicted of unauthorized use of a motor vehicle.

Schuster testified that he becomes concerned for his safety when "somebody bails out of the car," because such behavior indicates that the person intends to fight or flee. Schuster also testified that he believes that a person is a flight risk, or may become confrontational, when the person is fidgety and does not make eye contact and that, in his experience, people involved with theft crimes—as was defendant—ordinarily also are involved with drugs and often have weapons. He was particularly concerned about the possibility that defendant might have small weapons such as razor pblades, needles, or knives, or that he might have a handcuff key or some other small tool that could be used to pick the handcuff lock. Based on those concerns, Schuster called for assistance, and Deputy Berquist responded to the scene.

After calling for backup, Schuster arrested defendant for driving while revoked.¹ Schuster handcuffed defendant, spread defendant's legs, and asked him if he had any weapons, drugs, or large sums of money. Defendant responded that he did not. Defendant's hands were sweaty during the arrest, and Schuster testified that defendant would not stand still.

Schuster then began a "search incident to arrest." He explained the procedure as follows:

"[W]hat I do is I go through the pockets. I check—I pat the outside, and then I go actually into the pockets because I don't want to miss anything. I don't want to bring a weapon into the jail. I don't want to have him have access to a weapon while he is in the back seat of my patrol car, that is going to hurt me."

Schuster testified that he follows this procedure every time he makes an arrest. Schuster did not detect anything in defendant's pockets during the pat-down of the exterior of defendant's clothing, but, as he was going through defendant's jacket pockets, Schuster discovered a clear, plastic bag containing 1.3 grams of a substance later identified as methamphetarnine.² Because the jacket was denim, Schuster testified that he would not have discovered small objects in its pockets using only an external pat-down.

Before trial, defendant moved to suppress the methamphetarnine discovered in his jacket. He asserted that the search of the interior of his pockets violated his rights under Article I, section 9, of the Oregon Constitution.³ He argued that the deputy lacked reasonable suspicion to reach inside his pockets after an external pat-down of his clothing did not reveal anything inside the pockets. The state responded that the search was conducted incident to arrest and to protect the safety of the officer and, thus, no warrant was required.

The trial court denied defendant's motion: "Certainly there is no problem with the pat-down. The question becomes that when the pat-down shows nothing * * *, `Does [the officer] get to look in [defendant's pocket?]' I think under the cases, * * * he does, where an officer can articulate facts from which a reasonable police officer would infer that escape and/or violence * * * is a concern[. A] search designed to find those things that would be helpful in an escape within reasonable ends or means * * * doesn't become unreasonable * * *.

" * * * [H]ere we are talking about a jacket pocket, and it is a jacket pocket where small items such as a key or a paper clip * * * or a razorblade or similar small object could well be in that pocket and not be felt. * * *

"I am going to hold under the facts the officer testified to here * * *. Under these circumstances, I think this officer was, in fact, allowed by the Constitutions of the United States and the State of Oregon to search with his hand inside the pocket * * *. Hence, I will deny the motion to suppress."

Defendant was convicted after a jury trial.

On appeal, defendant argues that the trial court erred in denying his motion to suppress the methamphetamine evidence. He argues that a search incident to arrest is reasonable only if it is based on specific and articulable facts demonstrating that the arrestee poses a serious threat of harm or escape and that a search would decrease the threat. Defendant contends that Schuster could not have relied upon specific and articulable facts because he testified that he searches all suspects similarly; therefore, he could not have held a subjective belief that defendant posed a threat of harm or escape. Finally, defendant argues that the facts known to the officer did not provide an objective basis for reasonable suspicion. The state responds that the warrantless search of defendant's pockets was reasonable as a search incident

to arrest. The state asserts that, regardless of his regular practices, Schuster reasonably believed that defendant was a threat to his safety or to escape.

A warrantless search or seizure is presumptively unreasonable unless it satisfies at least one of the recognized exceptions to the warrant requirement. State v. Nagel, 320 Or. 24, 31, 880 P.2d 451 (1994). Under the Oregon Constitution, a valid custodial arrest does not by itself authorize a search. State v. Caraher, 293 Or. 741, 757-60, 653 P.2d 942 (1982). A warrantless search must be justified by the circumstances surrounding the arrest. Id. "Under Article I, section 9, there are three valid justifications for a search incident to lawful arrest: to protect the officer's safety, to prevent the destruction of evidence, and to discover evidence relevant to the crime for which the defendant was arrested."⁴ State v. Hoskinson, 320 Or. 83, 86, 879 P.2d 180 (1994). Reasonable steps taken to prevent a detainee from escaping or from harming others in the area may fall within the officer-safety justification. See State v. Owens. 302 Or. 196, 200, 729 P.2d 524 (1986) (including prevention of escape within the officer-safety justification); State v. Bates, 304 Or. 519, 524, 747 P.2d 991 (1987) (including the protection of "others then present" within the officer-safety justification). An initial pat-down of the exterior of the clothing of a person in custody is always justified to protect the officer's safety. Owens, 302 Or. at 200, 729 P.2d 524. However, beyond that limited pat-down,

"a further search incident to arrest conducted to protect officer safety or to prevent escape must be reasonable, taking into account all the facts surrounding the airest. Thus, an officer may conduct a further protective search if he or she develops a reasonable suspicion, based on specific and articulable facts, that the person in custody poses a serious threat of harm or escape and that a search would lessen or eliminate that threat." Hoskinson, 320 Or. at 87,879 P.2d 180 (citation omitted). See also State ex rel Juv. Dept. v. Singh, 151 Or.App. 223, 228, 949 P.2d 303 (1997) ("[T]he initial Owens pat-down does not extend to a search of the interior of an arrestee's pockets, unless that search can be justified as an expanded search incident to arrest.").

In Hoskinson, the officer conducted a valid pat-down search after arresting the defendant for driving while suspended. 320 Or. at 85, 879 P.2d 180. During the search, the officer removed a wallet from the defendant's back pocket. Id. The officer...