357 P.3d 514
Or. Ct. App.2015Background
- At ~2:00 a.m. officer stopped defendant for an obstructed registration sticker; officer observed signs of drug impairment.
- Officer ran records, called for backup, Mirandized defendant after informing him he had probable cause for DUII; defendant agreed to submit to field sobriety tests.
- Defendant disclosed a “BB gun pistol” in the vehicle; officer asked defendant to exit the vehicle; defendant complied and was patted down—no weapons found.
- During the patdown the officer felt a hard, cylindrical object in defendant’s sweatshirt pocket that he described as resembling a bullet; defendant refused permission to remove it, so the officer removed it anyway.
- The object proved to be a container holding bindles that tested positive for methamphetamine; defendant moved to suppress contending the removal violated Article I, § 9 of the Oregon Constitution.
- Trial court denied suppression; appellate court reversed, holding the seizure was not justified by the officer-safety exception and the subsequent consent/evidence was tainted by the illegal removal.
Issues
| Issue | State's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was removal of the object from defendant’s pocket justified by the officer-safety exception to the warrant requirement? | Officer-safety justified removal because object felt like a cartridge and officer reasonably feared defendant could access a weapon and load it. | Officer’s safety concern was speculative—no weapon seen, defendant was cooperative, patdown found no weapon, and risk of accessing vehicle or loading a weapon was remote. | No. Removal exceeded what officer-safety permits; concern was speculative and not based on specific, articulable facts. |
| Did the officer’s subjective fear suffice, or must it be objectively reasonable? | Officer’s subjective fear of being outmatched and injured supported the seizure. | Must be objectively reasonable based on totality of circumstances; subjective fear alone insufficient. | Objective reasonableness required; here it was lacking. |
| Did a patdown permit removal of items from pockets without additional suspicion? | Removal was a reasonable officer-safety measure beyond a patdown. | Patdown is normally sufficient; removing items requires further specific suspicion that the item presents an immediate threat. | Patdown alone did not justify removal; further intrusion requires more specific suspicion. |
| Should evidence and consent to open the container be suppressed as fruit of the illegal seizure? | If seizure was lawful, consent and evidence are valid. | Consent was the product of exploitation of the illegal seizure and must be suppressed. | Suppression required: state did not prove consent was not the product of exploitation, so evidence derived from the unlawful removal must be excluded. |
Key Cases Cited
- State v. Bates, 304 Or. 519, 747 P.2d 991 (1987) (articulates officer-safety exception test and requirement of reasonable suspicion based on specific, articulable facts)
- State v. Rudder, 347 Or. 14, 217 P.3d 1064 (2009) (patdown permissible for officer safety; further intrusion requires something more than a belief a weapon may be present)
- State v. Knox, 134 Or. App. 154, 894 P.2d 1185 (1995) (refuses speculative expansion of officer-safety to search areas the defendant could hypothetically access)
- State v. Musser, 356 Or. 148, 335 P.3d 814 (2014) (police exploitation doctrine: consent obtained after illegal police conduct may be product of exploitation and thus invalid)