State v. Wiggins

• Decision Date: 16 October 2002
• Citation: 56 P.3d 436,184 Or.App. 333
• Parties: STATE of Oregon, Respondent, v. Charles Robert WIGGINS, Appellant.
• Court: Oregon Court of Appeals

56 P.3d 436

184 Or.App. 333

STATE of Oregon, Respondent, v. Charles Robert WIGGINS, Appellant.

99CR0716FE; A108121.

Court of Appeals of Oregon.

Argued and Submitted October 31, 2001.

Decided October 16, 2002.

Meredith Allen, Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, State Public Defender.

Ryan Kahn, 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 HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.

LINDER, J.

Defendant appeals his conviction of possession of a controlled substance (PCS), assigning error to the trial court's denial of his motion to suppress. Defendant argues that reasonable suspicion did not support the investigating officer's decision to pat him down and that the officer lacked reasonable suspicion to believe that a lump in defendant's pocket contained a weapon. Although we reject defendant's challenge to the patdown, we agree that the officer did not have reasonable suspicion to believe that the lump in defendant's pocket contained a weapon. We therefore reverse and remand.

The material facts are undisputed. A confidential reliable informant (CRI) told Officer Berry that Mike Wiggins, defendant's brother, had a substantial amount of methamphetamine in his van, along with packaging materials and scales. The CRI described the van as being a motor home-type vehicle, its color, and the last three digits of the license plate. At approximately 6:30 p.m., the officer saw a van matching the CRI's description. The officer stopped the van because the license plate light was not working; Mike Wiggins was driving. After talking to Wiggins about the light, the officer let him go.

At approximately 9:00 p.m., the officer saw the van a second time and stopped it for driving over the fog line. Wiggins immediately got out of the van and met the officer between their vehicles. The officer asked Wiggins who owned the van. Wiggins responded that it was his, that he had just purchased it, and that he was using it as his primary residence. The officer then explained to Wiggins that he stopped him because Wiggins had driven over the fog line and that the officer had been informed that there was methamphetamine in the van. The officer then asked Wiggins for consent to search the van, and Wiggins refused. The officer told Wiggins he was going to search the van anyway due to the information he had received from the CRI.

Approximately five to 10 minutes after the initial stop, the officer asked Wiggins to remain near the officer's vehicle with Sergeant Green, a backup officer from the Reedsport Police Department who had just arrived on the scene. The officer then walked up to the passenger side of the van and contacted the two passengers who were still seated inside. The officer asked the two passengers, defendant and Fowler, to step out of the van. At that point, the officer knew that Wiggins had owned upwards of 100 or more firearms and knew, in his training and experience, that people who use and sell methamphetamine tend to carry firearms to protect themselves and their drugs. The officer also knew that defendant was an experienced hunter.

For his safety, the officer patted both men down for weapons. The officer did not find any weapons or contraband on Fowler. When the officer attempted to pat defendant down, defendant protested and produced a "rights card" that his attorney had given him on a prior occasion. The officer patted defendant down anyway. When he did so, the officer felt a "lump" in the right rear pocket of defendant's jeans. He did not know what the lump was and testified that it could have been large enough to contain some of the firearms he had seen in the past.

The officer removed the lump from defendant's pocket and saw that it was a crumpled up cigarette package. The officer knew that a very common place to store baggies of methamphetamine is between the cellophane wrapper and the cigarette package itself. The officer turned the crumpled up package around in his hand and saw a small plastic baggie of a white, crystal powder between the cigarette package and the cellophane wrapper. Based on the officer's training and experience, he believed that the powder was methamphetamine.¹

The officer then arrested defendant for PCS, put him in the back of his patrol car, searched the van, and found a variety of scales, packaging materials, and a cut-down material for methamphetamine called Vitablend. The officer also found a semi-automatic pistol with ground off serial numbers, a revolver in the sleeping berth just above the driver's seat, and a .22 semi-automatic pistol in a cabinet drawer in the back of the van.

Before trial, defendant filed a motion to suppress all evidence and statements taken from him pursuant to the search of his person, arguing that the search and seizure violated his rights under the Fourth Amendment to the United States Constitution and Article I, section 9, of the Oregon Constitution. The trial court denied defendant's motion and found defendant guilty of PCS after a trial on stipulated facts. In ruling on defendant's motion to suppress, the trial court stated that

"whether or not there was sufficient probable cause for the pat down of the defendant who was a passenger in this motor home or van, the Court finds that based on the officer's original probable cause that there were drugs in the van and that based on his own experience and training that he had a basis to pat down the defendant and the Court finds that the crumpled pack could contain a weapon based on the circumstances presented. You can hide all sorts of little things that are weapons. When he pulled out the package and saw the bindle of methamphetamine in plain view and had probable cause to believe it was methamphetamine, the Court finds that was sufficient and so the Court will deny the motion to suppress * * *."

On appeal, defendant argues that the trial court erred in denying his motion to suppress. Specifically, defendant challenges the patdown search and the removal of the "lump" from his rear pocket during that search.

We first consider whether the officer's decision to pat defendant down is supported by reasonable suspicion. Defendant contends it was not. The state responds that the patdown was justified by officer safety concerns. We agree with the state.

The officer safety principle at work in this case is straightforward. An officer is permitted to take

"reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops 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."

State v. Bates, 304 Or. 519, 524, 747 P.2d 991 (1987). Reasonable suspicion has both a subjective and an objective component. Consequently, we must consider whether the officer subjectively believed that defendant posed a threat of harm and whether that belief was objectively reasonable under the circumstances as they appeared to the officer at the time. Bates, 304 Or. at 525, 747 P.2d 991; see also ORS 131.605(5) ("Reasonably suspects" means "that a peace officer holds a belief that is reasonable under the totality of the circumstances existing at the time and place the peace officer acts.").

The facts, as known or reasonably suspected by the officer when he performed the patdown, are equally straightforward. The officer stopped the van—which had been converted to a motor home type of vehicle—at approximately 9:00 p.m. It was dark. The officer had reliable information that the driver of the motor home, Mike Wiggins, was using and selling methamphetamine and was conducting his methamphetamine operation from the motor home. The information included the facts that, within 24 hours of the stop, the motor home had been observed to contain a substantial amount of methamphetamine (approximately 12 to 15 times the amount of a typical street sales transaction), along with packaging materials and electronic scales (located in the back of the vehicle) used for weighing the methamphetamine. The motor home, as Wiggins acknowledged to the officer at the time of the stop, served as Wiggins's primary residence. In effect, then, the vehicle was the equivalent of a personal residence (albeit a small and mobile one) that the officer reasonably suspected was the base for a methamphetamine operation.

Wiggins, on being stopped, immediately got out of the motor home and met the officer partway between it and the officer's patrol car. The officer was not immediately aware that anyone else was in the motor home at that time.² The officer talked to Wiggins for approximately five to 10 minutes,...