State v. Weber, C82-05-35223

• Decision Date: 31 August 1983
• Docket Number: No. C82-05-35223,C82-05-35223
• Citation: 668 P.2d 475,64 Or.App. 459
• Parties: STATE of Oregon, Respondent, v. Bruce Francis WEBER, Appellant. ; CA A26397.
• Court: Oregon Court of Appeals

Page 475

668 P.2d 475

64 Or.App. 459

STATE of Oregon, Respondent, v. Bruce Francis WEBER, Appellant.

No. C82-05-35223; CA A26397.

Court of Appeals of Oregon.

Argued and Submitted May 16, 1983.

Decided Aug. 31, 1983.

Lawrence Baron, Asst. Public Defender, Portland, argued the cause and filed the brief for appellant.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.

GILLETTE, Presiding Judge.

In this criminal case, defendant seeks reversal of a trial court order denying his motion to suppress evidence that the police obtained as a result of a pat-down search for weapons. We reverse and remand, because the facts apparent to the police at the time of the search were insufficient to support a reasonable suspicion that defendant was armed and dangerous.

On May 11, 1982, a number of Portland police officers ¹ executed a search warrant for an apartment in northwest Portland. Officer Bolger was among the first to enter the dwelling. As he moved toward the rear of the apartment, he encountered defendant and proceeded to pat him down "for weapons." During the pat-down, Bolger felt a soft object in one of defendant's pockets. He then reached into the pocket and retrieved a baggie containing marijuana. Some time later, after defendant had been arrested, Bolger again searched his pockets and discovered two Valium tablets. Defendant moved to suppress both the marijuana and the Valium. The trial court denied the motion ² after concluding that the marijuana discovery resulted from a lawful pat-down for weapons and that the Valium was discovered in a search incident to a valid arrest. The court then tried defendant on stipulated facts and found him guilty on two counts of possession of a controlled substance.

Defendant's primary contention is that the pat-down search was unlawful, because it was not based on a reasonable belief that defendant was armed and dangerous. We agree.

In Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), the Supreme Court considered the validity of a pat-down search for weapons that the police had performed on a customer of a tavern that the police were searching pursuant to a warrant. The court invalidated the search, stating:

"* * * The initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a patdown for weapons. Adams v. Williams, 407 US 143, 146, 32 L.Ed.2d 612, 92 S.Ct. 1921; Terry v. Ohio, [392 US 1], 21-24, 27, 20 L Ed 2d 889, 88 S Ct 1868 [1879-1881, 1883] * * *." 444 U.S. at 92-93, 100 S.Ct. at 342-343. (Emphasis supplied.)

As the court's citations indicate, its holding resulted from the application of Terry v. Ohio, supra, to the Ybarra facts. In Terry, the court concluded that the police have a "narrowly drawn" authority to conduct a

"* * * reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual * * *." 392 U.S. at 27, 88 S.Ct. at 1883.

Such a search is justified only if

"[a] reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." 392 U.S. at 27, 88 S.Ct. at 1883. ³ (Citations omitted.)

Our initial inquiry, then, is whether the circumstances surrounding Bolger's encounter with defendant were such that the officer could reasonably have believed that he was armed and dangerous.

At the hearing on the motion to suppress, Bolger testified that he found defendant in the hallway of the apartment, that defendant was a stranger to him at that time and that he could not remember whether defendant was walking or simply standing in the hallway. Bolger also gave an account of defendant's behavior:

"[He was behaving] not in a normal manner.

" * * *

"He did not gain eye contact with me when I first approached him, which I thought was rather strange. His--because of not gaining eye contact and appeared to be not really paying attention to what was going on at the time, or even to be surprised that someone was coming through the house yelling police. * * *

" * * *

"So, normally in a situation like that I imagine somebody would at least look at you. I thought it odd that he did not gain any eye contact with me.

" * * * "

Those are the only facts ⁴ the state relies on to justify the pat-down, and they fall far short of the articulation of specific facts necessary to justify a suspicion that a person is armed and dangerous. See Ybarra v. Illinois, supra, 444 U.S. at 93, 100 S.Ct. at 343; State v. Valdez, 277 Or. 621, 561 P.2d 1006 (1977) (police officers' "reasonable suspicions" must be based on "observable facts" that can be objectively evaluated by courts reviewing the legality of police conduct). The officer's observations that defendant was "not really paying attention" and that his behavior was "not normal" and "strange" indicate, at most, that defendant was disoriented and had not yet, grasped the significance of the events.

The state seeks to justify the pat-down on several other grounds. First, it attempts to distinguish the present case from Ybarra by pointing out factual differences between the two cases; e.g., that "the building in Ybarra was a tavern open to the public, whereas here there was a small apartment with three occupants." We see no reason why the principles announced in Terry and Ybarra should not apply equally to pat-down searches conducted on private property and on property open to the public. See State v. Myers, 55 Or.App. 370, 637 P.2d 1360 (1981). None of the factual distinctions lend support to Bolger's professed belief that the pat-down was a necessary safety precaution.

Second, the state contends that two Oregon cases, State v. Garza, 32 Or.App. 643, 574 P.2d 1151, rev.den., 283 Or. 1, 580 P.2d 1030, cert. den. 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663 (1978), and State v. Taylor, 62 Or.App. 586, 661 P.2d 569 (1983), support its contention that the...