State v. Bese, 433 P.3d 766

Background

Officer Blair (uniformed) responded to a call reporting a person "tweaking" walking on Highway 47 and found defendant walking near Carlton. Blair approached on foot without lights, identified himself, and asked to speak.
Blair observed dilated, bloodshot pupils and asked if defendant had used or possessed drugs; defendant denied use or possession.
Blair asked defendant to lift his sweatshirt to check his waistband; defendant complied and Blair saw a large sheathed knife on the belt.
With defendant's consent, Blair removed the sheathed knife and placed it on the patrol car ~15 feet away, then continued to ask whether defendant had any drugs; defendant then produced a switchblade from his pocket and gave it to Blair.
Dispatch later informed Blair that defendant was on felony probation; defendant was arrested and charged with carrying a concealed weapon and felon in possession of a restricted weapon. Defendant moved to suppress; the trial court denied the motion. Defendant pleaded guilty conditionally and appealed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument	Held
Whether Blair's removal and retention of the sheathed knife transformed a consensual encounter into a seizure/stop	Not a stop until Blair asked defendant to sit on the curb after the switchblade was produced; retaining the sheathed knife was like briefly retaining ID and was justified to ensure officer safety	The moment Blair removed and kept the sheathed knife while continuing drug-related questioning, the encounter became a stop lacking reasonable suspicion	The court held the encounter became a stop when Blair removed and retained the sheathed knife and continued questioning; that conduct conveyed the officer's authority and restrained liberty
Whether the stop was supported by reasonable suspicion of possession of controlled substances	Blair had reasonable suspicion based on the caller report of "tweaking," defendant's dilated/bloodshot eyes, and officer training that drug users may carry weapons	Observations of intoxication alone, and generalized training that drug users sometimes carry weapons, do not supply specific and articulable facts supporting reasonable suspicion of possession	The court held the stop was not supported by reasonable suspicion; intoxication plus a sheathed knife and generalized training did not justify an investigative stop for possession
Whether precedent distinguishing retention of ID applies	Retaining items briefly to verify ID is not a stop; cited cases support brief, limited retention	Retaining a weapon is materially different from retaining ID and is more coercive	The court distinguished ID-retention cases (Beasley, Highley, Backstrand) and found them inapplicable because retaining a weapon is not analogous to brief ID checks
Remedy given defendant’s conditional plea	State urged denial of suppression and affirmation; court needed to address suppression ruling	Defendant reserved the right to appeal under ORS 135.335(3)	Court reversed the conviction and remanded so defendant may withdraw his plea if he chooses

Key Cases Cited

State v. Maciel-Figueroa, 361 Or. 163 (discussion of suppression review standard and reasonable suspicion)
State v. Miller, 363 Or. 374 (three categories of officer-citizen encounters and stop standard)
State v. Ashbaugh, 349 Or. 297 (seizure test: imposition of restraint by force or show of authority)
State v. Backstrand, 354 Or. 392 (objective test for seizure; retaining ID may still be a seizure depending on context)
State v. Beasley, 263 Or. App. 29 (retention of identification and brief verification analysis)
State v. Highley, 354 Or. 459 (brief retention of license for verification)
State v. Daniels, 234 Or. App. 533 (limits on relying on officer training/experience without factual nexus)
State v. Farrar, 252 Or. App. 256 (intoxication alone insufficient for reasonable suspicion of possession)
State v. Morton, 151 Or. App. 734 (observations of intoxication insufficient to infer possession)
State v. Jones, 245 Or. App. 186 (insufficient support for reasonable suspicion based on generalized officer experience)