277 P.3d 581
Or. Ct. App.2012Background
- Officer Humphreys lawfully stopped Lamb for smoking in a TriMet kiosk, a TriMet code violation.
- Humphreys observed Lamb appeared nervous and restless; Lamb provided name and birth date, but had no ID.
- Humphreys asked Lamb if he had any weapons; Lamb stated he had a syringe and attempted to reach his pocket.
- Humphreys restrained Lamb’s reaching, then asked about drugs; Lamb indicated two baggies containing methamphetamine in a wallet.
- Dauchy retrieved the wallet; baggies were seized; Lamb was arrested and later charged with drug possession and multiple counts of encouraging child abuse; a subsequent search revealed child pornography.
- Defendant moved to suppress, arguing the weapon inquiry constituted an unlawful seizure; trial court denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the weapon inquiry was an unlawful seizure. | Amaya/Simcox control; the stop remained lawful and inquiry did not constitute a new seizure. | The weapon question caused a significant restriction not justified by reasonable suspicion or officer safety. | Not an unlawful seizure; permissible under Amaya and Simcox. |
| Whether the stop was unlawfully extended by the weapon inquiry. | N/A | The weapon inquiry extended the duration of the stop. | Not preserved for review; argument not considered on the merits. |
| Whether the officer safety inquiry and subsequent actions were properly permissible or impermissible under preservation rules. | N/A | Argues extended duration and unlawfulness under Rodgers/Kirkeby. | Not reached/adequately preserved; underlying rule controlled by Amaya/Simcox. |
Key Cases Cited
- State v. Amaya, 176 Or.App. 35, 29 P.3d 1177 (2001) (questioning during lawful stop on unrelated matter does not require independent reasonable suspicion)
- State v. Simcox, 231 Or.App. 399, 220 P.3d 98 (2009) (during lawful stop, inquiries about weapons/contraband permissible; stop not extended)
- State v. Kirkeby, 220 Or.App. 177, 185 P.3d 510 (2008) (no unlawful expansion of stop; questions permissible)
- State v. Rodgers/Kirkeby, 347 Or. 610, 227 P.3d 695 (2010) (affirmed lawful stop and permissible questions; duration not unlawfully extended)
- State v. Bates, 304 Or. 519, 524, 747 P.2d 991 (1987) (officer safety doctrine governs questioning during seizure)
- State v. Hall, 339 Or. 7, 115 P.3d 908 (2005) (preservation and factual-consistency principles for suppression issues)