State v. BaldwinState v. Baldwin
- Reporters:
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- Before:
- Gillette
Lead Opinion
Plaintiff appeals his conviction for carrying a concealed weapon,
Officer Igo, who was in plain clothes, saw defendant sitting in a downtown Portland bus shelter with a girlfriend. Defendant took a brass pipe with a red stem from one pocket of his jacket and a small match box from another. He thеn took some leafy material from the match box and put it into the pipe. At that point, because he believed that defendant was about to smoke marijuana, Igo approached him and showed him his badge. Defendant handed Igo the pipe. Igo then started patting defendant down and, at the same timе, asked him if he was carrying any weapons. Defendant took a hunting knife, which was in its scabbard, from inside his jacket and
We first examine whether Igo properly searched defendant incident to an arrest. Igo unquestionably had the authority to stop him and to cite him for possession of less than an ounce of marijuana.
The state’s primary arguments in support of the search are that it was a legal statutory frisk for weapons under
The state argues, however, that there exists a general authority for officers to conduct the kind of pat-down search that occurred here. No statute so provides but, even if such authority existed, the state claims no more for it than the authority conferred by
If Igo did not have — or, at least, did not articulate — a reasonable suspicion that defendant specifically was armed and presently dangerous, he hаd no authority for the frisk under the statute, and he therefore had no authority for it on any basis. Here, there is nothing about defendant’s conduct that could have led Igo to fear for his safety or for that of others. Defendant was polite and cooperative throughout the encounter, the offense for which Igo stopped him had no overtones of violence and the incident took place in the early evening in an area where other people were present. The only basis for Igo’s action was his stated knowledge of a correlation between being on the mall, being armed and possessing lеss than one ounce of marijuana.6 That correlation may be statistically or historically correct, but defendant is an individual, not a statistic. An officer
People are entitled to be evaluated on their individual bеhavior, not that of groups to which they may belong. See Reid v. Georgia, 448 US 438, 100 S Ct 2752, 65 L Ed 2d 890 (1980) (that a person fits a “drug courier profile” does not create reasonable suspicion justifying a stop in the absence of particular suspicious conduct by the person); Ybarra v. Illinois, 444 US 85, 100 S Ct 338, 62 L Ed 2d 238 (1979) (that a person was in a bar when police entered to search fоr contraband pursuant to a warrant provided neither probable cause to search the person nor reasonable suspicion that he may be armed and dangerous).7 There may be situations in which the nature of a person’s offense can play a legitimate role in determining whether that pеrson may reasonably be thought likely to be armed and dangerous, such as an armed robbery, when the possibility of violence is inherent in the offense. In the present case, however, the fact of the offense is inadequate, without some additional information specifically related to the person invоlved, to justify a frisk. See State v. Valdez, supra, 277 Or at 628.
Reversed and remanded for a new trial.
Notes
“(1) When a person has committed a violation as defined inORS 161.565 in the presence of a peace officer, the officer may issue and serve a citation to the person as provided inORS 133.055 and 133.065.
“(2) The peace officer may stop and detain a person for a violation offense for the purposes of investigation reasonably relаted to the violation offense, identification of the person and issuance of a citation to the person.
“(3) A peace officer may detain a person pursuant to this section only for such time as is reasonably necessary to investigate and verify the person’s identity.”
“A peace officer may arrest a person without a warrant if the officer has probable cause to believe that the person has committed:
“(a) A felony, a Class A misdemeanor or an unclassified offense for which the maximum penalty allowed by law is equal to or greater than the maximum penalty allowed for a Clаss A misdemeanor, or a major traffic offense as defined inORS 484.010(5) ; or
“(b) Any other offense in the officer’s presence except traffic infractions as defined inORS 153.505 and violations as defined inORS 161.565. ”
Although defendant handed the knife to Igo in response to Igo’s question, the trial court found that he did not consent to the frisk but acquiesced in a show of authority. Igо therefore discovered the knife as a result of his seizure and search of defendant’s person.
The trial court stated, in its conclusions of law, that “[i]t is not at all clear that what the officer saw was only a violation as defined by
The statute requires that the officer suspect that the person is both armed and presently dangerous. Abstractly, we suppose, one could argue that, although a person may be armed, he may not be dangerous. Not surprisingly, however, there is little case law applying this distinction. See 3 LaFave, Search and Seizure § 9.4, 114 n 17; see also Commentary, Oregon Criminal Procedure Code 28, § 32 (1972) (“the officer must have a reason for being in fear for his safety”).
The trial court’s specific finding was: “The reason for the frisk was that the officer was aware from prior experience and training that the downtown bus mall has a reputation for weapons-carrying narcotics offenders. In other words, people who possess marijuana in the bus mall area commonly carry weapons.” The first sentence is supported by substantial evidence in the record. However, the second sentence misreads the evidence to the extent that it implies a special correlation between possessing marijuana and carrying weapons. In fact, the officer stated that being on the mall was the crucial variable, not carrying weapons or possessing narcotics. Not only did the officer articulate no facts specifically relating to defendant, he also did not testify that carrying drugs created an increased likelihood that a person would be armed. The relevant testimony, following the officеr’s first statement that he searched defendant for drugs and weapons, is as follows:
“Q. [Prosecutor] And why for weapons?
“A. Well, it’s been my experience as a police officer that many people are armed, especially in the downtown area.
“Q. Was the defendant antagonistic or cooperative?
“A. He was quite cooperative.
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“Q. [Defendant’s Attorney] Now also, it’s your understanding — isn’t it true that people who carry less thаn one ounce of marijuana you know for a fact do not necesssarily carry weapons?
“A. Repeat the question.
“Q. The people who carry under — to your knowledge the people who carry under an ounce of marijuana — are they known to carry weapons commonly?
“A. Some do and some don’t.
“Q. Do most —
“A. Shit — how can you make a generаlization one way or the other?
“Q. Well, the generalization is, do people carry — to your knowledge, do people who carry under an ounce of marijuana in their possession, are they commonly known to carry weapons?
“A. The people who hang out in the mall —
“Q. I am not talking — I am talking about people who carry less than an ounce of marijuana — are they commonly known to carry weapons?
“A. And I will state again the people downtown on the mall do —
“Q. No — I don’t want to know about the people downtown, I am asking you a question.
“[The Court] Mr. Joondeph, he can qualify his answer.
“Q. [Defendant’s Attorney] OK.
“A. As I have stated before, the people in the mall area downtown commonly do carry weapons and commonly do have under an ounce of marijuana on their person. Persons in the geographical area in the city —
“Q. So you are stating that persons who are down — people who are downtown, did you say, commonly carry marijuana and commonly carry weapons?
“A. That’s correct, in the mall area.”
We cite the federal cases as helpful in analyzing this issue, but we decide this case under Article I, section 9, of the Oregon Constitution, and they are not controlling.
Dissenting Opinion
dissenting.
I would sustain the trial court’s ruling on the motion to suppress and affirm defendant’s conviction for carrying a concealed weapon. Therefore, I resрectfully dissent.
Defendant concedes that he was lawfully stopped.
Igo observed defendant in possession оf marijuana. That gave him reason to believe that defendant had committed an offense. He testified that he knew from experience that people who possess narcotics in the downtown bus mall area often carry weapons. The trial court concluded that that knowledge gave Igo a reasonable basis to suspect that defendant was armed and presently dangerous. See
In State v. Tourtillot, 289 Or 845, 618 P2d 423 (1980), cert den 451 US 972 (1981), the Supreme Court reviewed the legislative history of Oregon’s stop-and-frisk statutes and explained:
“[T]he significance of this legislative history is that the [Criminal Law Revision] Commission knowingly and explicitly rejected proposed provisions that the Code was intended to completely define the scope of permissible search and seizure.” 289 Or at 852 (footnote omitted.)
I conclude that, in enacting
Both Article I, section 9, of the Oregon Constitution and the Fourth Amendment impose limits on search and seizure in order to prevent arbitrary and oppressive governmental invasion of a сitizen’s privacy and personal security. State v. Tourtillot, supra; Delaware v. Prouse, 440 US 648, 653-54, 99 S Ct 1391, 59 L Ed 2d 660 (1979); Pennsylvania v. Mimms, supra, 434 US at 108-109. The question here is whether the frisk for weapons, made when defendant was lawfully detained, was reasonable. Igo knew from experience that persons possessing narcotics in the downtown bus mall area often carry weapons. Thus, the justification for a frisk, Igo’s sаfety, was both legitimate and weighty. See Pennsylvania v. Mimms, supra, 434 US at 110; Terry v. Ohio, 392 US 1, 23, 88 S Ct 1868, 20 L Ed 2d 889 (1968); State v. Riley, 240 Or 521, 515, 402 P2d 741 (1965). We should weigh any intrusion into defendant’s privacy occasioned by the frisk against that justification. The intrusion here was slight; it involved asking defendant if he had a weapon, whereupon defendant, not Igo, reached into the jacket and produced a knife.4 Balanced against Igo’s legitimate concerns for his safety, that limited intrusion was reasonablе.
“(1) A peace officer who reasonably suspects that a person has committed a crime may stop the person and, after informing the person that he is a peace officer, make a reasonable inquiry.
“(2) The detention and inquiry shall be conducted in the vicinity of the stop and for no longеr than a reasonable time.
“(3) The inquiry shall be considered reasonable only if limited to the immediate circumstances that aroused the officer’s suspicion.”
“(1) A peace officer may frisk a stopped person for dangerous or deadly weapons if the officer reasonably suspects that the person is armed and presently dangerous to the officer or other person present.
“(2) If, in the course of the frisk, the peace officer feels an object which he reasonably suspects is a dangerous or deadly weapon, he may take such action as is reasonably necessary to take possession of the weapon.”
I read the majority opinion to say that the real problem with the frisk in this case is that the prosecutor failed to elicit any explicit testimony from Igo that he believed defendant was “armed and presently dangerous.” 76 Or App at 726-27.
Defendant also argues in this court that the frisk was too intrusive, because Igo unzipped some of defendant’s jacket pockets. That argument was not raised at trial, and I would not consider it.