State v. Wales

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: JOSEPH; DEITS; DEITS
• Citation: State v. Wales, 755 P.2d 704, 91 Or.App. 10 (Or. App. 1988)
• Decision Date: 11 May 1988
• Parties: STATE of Oregon, Appellant, v. Frank Gilbert WALES, Respondent. C85-08-33285; CA A37897.

Page 704

755 P.2d 704

91 Or.App. 10

STATE of Oregon, Appellant, v. Frank Gilbert WALES, Respondent.

C85-08-33285; CA A37897.

Court of Appeals of Oregon In Banc.

Argued and Submitted July 28, 1986.

Resubmitted In Banc Sept. 9, 1987.

Decided May 11, 1988.

Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause, for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Sally L. Avera, Salem, argued the cause, for respondent. With her on the brief was Gary D. Babcock, Public Defender, Salem.

JOSEPH, Chief Judge.

In this prosecution for possession of controlled substances, ORS 475.992, the state appeals from an order suppressing evidence obtained when defendant was searched. The state raises two issues: (1) whether the stop and the search were supported by a reasonable suspicion that defendant was armed and dangerous; and (2) whether the opening of a small metal box that was seized from defendant's pocket was lawful. We affirm.

Officer Larson stopped defendant's car, because it had a defective brake light. As he approached the car, he recognized defendant. He had previously dealt with him and believed him to be a "methamphetamine dealer." ¹ He also said that he knew that the police had found a large cache of weapons at defendant's residence a few months earlier. He testified that, as he approached the driver's window, he was "a little more nervous than he was at the beginning of the stop," because he believed that "methamphetamine people" ² tend to be "paranoid" and that they frequently possess "guns and knives."

Larson requested defendant's driver's license. When defendant replied that he had neither a license nor any identification, Larson asked that he get out of the car. When asked if he had any weapons, apparently after he was out of the car or while he was getting out of the car, defendant replied that, as the officer put it, he had "some knives on him."

Larson then patted him down and removed from his right front pants pocket a knife and a flat gold-colored box. He placed them on the trunk lid. He then removed two knives ³ and a bag, which turned out to contain less than one ounce of marijuana, from defendant's left-front pocket and also placed them on the trunk lid. He opened the box and found codeine and a small bag containing a white powder. Larson testified that he opened the box because "[t]here may have been some more marijuana in that little box or more drugs of some kind or evidence of possession * * *." He then put defendant in the back of the patrol car, advised him of his rights and obtained his consent to have the powder tested; it proved to be methamphetamine. He cited defendant for possession of less than one ounce of marijuana, driving with a defective brake light and operating with an expired operator's permit, gave him back the knives and released him.

The initial stop of defendant's vehicle was lawful, because Larson had observed that it had a defective brake light. When he discovered that defendant was driving without a permit, he had reason to believe that defendant had committed the Class C misdemeanor of failing to carry or present a license to a police officer. ORS 807.570; ORS 161.515; ORS 131.605(1). The state argues that ORS 131.615 ⁴ then became applicable and furnishes the statutory basis for all that followed, including, of course, the search, purportedly pursuant to ORS 131.625. ⁵

There are a number of difficulties with the state's argument. In the first place, if it is the state's position that the relevant stop occurred at the outset in respect to the defective brake light, then very plainly an inquiry about whether defendant possessed a weapon exceeded the permissible scope of the inquiry allowed under ORS 131.615(3). If the state relies on the direction by Larson that defendant get out of his car as being the relevant stop, then it would be necessary to determine what was the "crime" that Larson reasonably suspected that defendant had committed, aside from the one for which the vehicle was stopped or which defendant had committed by not having or displaying an operator's permit. The state does not argue that the possession of the knives gave rise to a reasonable suspicion that defendant had committed or was committing a crime.

The record concerning the circumstances at the time and place shows that defendant was ordered out of the car because he did not have a driver's license or other identification. ^{6 6} That had supposedly added to Larson's existing nervousness about defendant, but he admitted on cross- that his "fear," such as it was, was based entirely on who he knew that defendant was, not on anything defendant did or said. ⁷ The state argues that the circumstances were such as to permit Larson to act under ORS 131.625, which permits the frisking of "a stopped person for dangerous or deadly weapons if the officer reasonably suspects that the person is armed and presently dangerous to the officer or other person present."

iState v. Bates, 304 Or. 519, 747 P.2d 991 (1987), was decided while this case was pending in this court. In that case, the state relied on former ORS 484.353(2)(b), which was in effect at the time of the stop:

"(2) A police officer:

" * * * * *

"(b) May stop and detain a person for a traffic infraction for the purposes of investigation reasonably related to the traffic infraction, identification and issuance of citation."

The Supreme Court noted that the activity which followed the traffic infraction stop there was not authorized by that statute. The state did not contend otherwise, unlike in this case. Bates turned on whether the officer reasonably suspected that the defendant was armed and dangerous and was, therefore, entitled to take reasonable steps to protect himself and a fellow officer.

After briefly discussing Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), and State v. Riley, 240 Or. 521, 402 P.2d 741 (1965), the court held

"that Article I, section 9, * * * 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. * * * [I]t is not our function to uncharitably [sic] second-guess an officer's judgment. * * * An officer must be allowed considerable latitude to take safety precautions in such situations. Our inquiry therefore is limited to whether the precautions taken were reasonable under the circumstances as they reasonably appeared at the time that the decision was made." 304 Or. at 524, 747 P.2d 991.

The court went on to examine the facts under which the defendant was subjected to the search. The "underlying question" was: "Did any of the circumstances confronted by the officer either individually or collectively justify a reasonable suspicion that the defendant posed an immediate threat to [either of the officers] or both?" 304 Or. at 525, 747 P.2d 991. (Emphasis supplied.) The court concluded:

"In summary, none of the * * * circumstances either individually or collectively justified a suspicion on [the officer's] part that this defendant posed an immediate threat. * * *

" * * * * *

" * * * Although the police are entitled to some leeway in taking protective measures, we must draw the line at some point. The facts articulated * * * in this case fall short of creating a reasonable belief that this defendant posed an immediate threat. In [the] light of defendant's cooperative attitude, his lack of aggressive or threatening behavior and the absence of any apparent weapon, the mere possibility that he might have committed a crime and the presence of what appeared to be a bag are not sufficient. The officers violated defendant's constitutional rights when they instructed him to slide the bag into view. * * * " 304 Or. at 526, 747 P.2d 991.

Unlike in State v. Bates, supra, 304 Or. at 528, 747 P.2d 991, the trial judge here did demonstrate on the record "what the judge perceived to be the crucial facts and decisive rationale":

"THE COURT: [Officer Larson] [s]topped this man, found he didn't have a license, going to hand him a citation. At that point in time is that officer in any way threatened that he had to be concerned about his own well-being?

"[PROSECUTOR]: That's certainly the ultimate question, and I think this officer's testimony that he had reasonable fear based on his experience and based on what he knew of common experiences of law enforcement officers across the nation, certainly have a reasonable fear that a person who is armed and presently dangerous.

" * * *.

"THE COURT: Don't misunderstand[.] I know the police officers are in the open [and that] that represents some hazard, so do you, so do I. We don't frisk everybody we come in contact with. We don't have everybody arrested.

"The question seems inescapable[.] [T]he officer indicated that he would have patted me down if I had been the person in this car. I have seen too many people stopped, been stopped myself and I know this doesn't occur. Except I think he perceived Mr. Wales may have had some drugs on him because he knew him to be a person who dealt in methamphetamines. I think that is the reason we have the search. I don't think a reasonable search.

" * * *.

"[PROSECUTOR]: Is the Court's finding that the affirmative answer [to the question about weapons] was not sufficient to rise to the level of reasonable fear that [the] person was armed and dangerous?

"THE COURT: I think that patting this man down to search him under the circumstances of this, even recognizing it was four o'clock in the morning was not reasonable." (Emphasis supplied.)

In short, the trial court found as a fact that the reason for the pat down and search was not that Larson feared for his...