The issue in this case, a criminal prosecution for unlawful possession of a controlled substance and unlawful possession of a weapon, is whether the police lawfully searched defendant’s automobile after stopping him for a traffic infraction. The trial court denied defendant’s motion to suppress evidence found in that search. The Court of Appeals affirmed without opinion.
State v. Bates,
On December 17, 1984, at 4:40 a.m., Eugene City Police Officer Nauta stopped defendant for “excessive vehicle emissions,” a Class D traffic infraction. Former ORS 483.765. Defendant was driving, in an otherwise lawful manner, a 1963 Chevrolet automobile with Washington license plates. Officer Nauta later described the area of the stop as a “high crime residential” area.
After stopping defendant, Officer Nauta called Officer Stroebel, who was in the immediate area, for assistance. When he arrived, both officers approached defendant’s automobile, Officer Nauta from the driver’s side. Nаuta asked defendant for his driver’s license. Defendant produced a valid Washington license. The automobile was seen by the officers to contain, in plain view, a television and a videocassette recorder.
Officer Stroebel, who was standing on the passenger side of the vehicle, commented on an objеct on the floorboard between defendant’s feet. Nauta testified that, at that point:
“I shined my flashlight down between the Defendant’s feet and could make out just the end of what appeared to be some kind of a bag, but I couldn’t determine exactly what it was. And I asked Mr. Bates if he would reach down and very cautiously pull that item from between his feet, so I could see what it was.”
Defendant did not pull the object into view. Instead, he reached under the seat and remained in that position while Nauta “repeatedly asked him to take ahold of what I couldn’t see, what I couldn’t make out, and to pull it out in plain view so I could see it.” After approximately 10 seconds, Nauta drew his service revolver and ordered defendant out of the automobile. Nauta retrieved the closed black bag from under the *522 front seat. He felt something hard inside the bag and, opening it, found that it contained several rounds of live ammunition, drugs, and drug paraphernalia. Nauta then searched the automobile and discovered a loaded handgun under the front seat.
Defendant does not challenge the validity of the original stop, nor does he contend that the officer’s use of a flashlight was a search.
See State v. Jackson,
As previously noted, defendant was stopped for a traffic infraction. Former ORS 484.353(2) (b), in effect at the time of this stop, provided:
“(2) A police officer:
U* * * * *
“(b) May stop and detain a person for a traffic infraction for the purposes of investigation reasonably related to the traffic infraction, identification and issuance of citation.” (Emphasis supplied.) 1
Nauta’s investigation of the object on the floorboard was not reasonably related to the excessive emissions violation for which defendant was stopped and, therefore, was not authorized by former ORS 484.353(2)(b). In instructing defendant to move the object, Officer Nauta exceeded the permissible scоpe of his authority to conduct a traffic infraction stop.
The state does not contend otherwise. Rather, it argues that, once defendant was validly stopped, Nauta reasonably suspected that defendant was armed and dangerous and, therefore, Nauta was entitled to take reasonable steps to protect himself and Stroebel. The state relies on
Michigan v. Long,
The United States Supreme Court, interpreting the Fourth Amendment, held:
“Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.”
In view of the late hour, rural area, the defendant’s manner оf driving and apparent intoxication, and the discovery of the knife in plain view, the Court concluded that the police were “clearly justified” in their belief that the defendant “posed a danger if he were permitted to reenter his vehicle.” Id. at 1050.
This court also has recognized that police officers are entitled to take steps reasonably necessary to their safety. In
State v. Riley,
This court held that the seizure of the gun was lawful because, based on the defendant’s efforts to conceal the gun, the police had probable cause to believe that he was carrying the gun without a permit.
“The officers were justified in seizing the gun upon the further grоund that it was reasonably necessary to their safety. Defendant was still near the car when Todd seized the weapon. There was no indication that defendant was about to make an effort to get the gun. When officer Todd was asked on direct examination if he was ‘in fear of any assault by a weapon,’ he respondеd, ‘No, no more than you normally would be.’ To justify the seizure of a weapon which could be used against the arresting officer we shall not draw a fine line measuring the possible risk to the officer’s safety. The officer should be permitted to take every reasonable precaution to safeguard his life in the process of making the arrest.” Id. at 524-25.
Although
Riley
was decided as a matter of constitutional law, it did not refer specifically to either the state or federal constitution. Upon consideration, we hold that Article I, section 9, of the Oregon Constitution, does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a 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. As we noted in
Riley, supra,
Nauta testified that he was concerned for his safety because of the following facts:
“* * * The vehicle has out-of-state plates. Time of day; high crime area; like it or not, the way [defendant] looks; and the fact that there is a VCR and television set in the back seat of the vehicle.”
Nauta also testified that he was concerned because defendant did not comply with his instruction to move the bag and, instеad, appeared to be reaching for some unseen object. We turn to a consideration of the legal significance of these facts. Our consideration requires that they be addressed individually, but the underlying question will be this: Did any of the circumstances confronted by the officer either individually or collectively justify a reasonable suspicion that the defendant posed an immediate threat to Nauta, Stroebel, or both?
Nauta did not explain his comment about defendant’s appearance. Defendant described himself as an “Indian” with long hair and a beard, and stated that he was wearing a black leather jacket when he was stopped. Nothing in that description supports a reasonable belief that defendant was dangerous. This concern is entitled to no weight, whether viewed by itself or added to other factors.
Cf. State v. Valdez,
Neither did anything in defendant’s manner suggest that he was dangerous. Defendant had been driving in a reasonable manner and did not appear to be intoxicated. He cooperated with Nauta’s request that he produce his driver’s license and that he keep his hands in view at all times. Nauta testified that defendant had not disрlayed any aggressive or hostile behavior. Therefore, nothing in defendant’s behavior weighs in favor of the officer’s actions.
Other facts relied on as supporting the officers’ actions include the late hour, the high crime rate in the area, *526 the out-of-state license plates on defendant’s automobile, and the рresence of the videocassette recorder and television. Those facts apparently suggested to Nauta that defendant may have committed burglary or theft and, therefore, had a motive physically to resist any inquiry by the police.
Nauta’s suspicions in this regard may have been an excellent guess—the kind resulting from a sixth sense that many officers develop over the years. But, again, there is no objective quality to them that entitles them to any weight, either individually or collectively, in the constitutional calculus. Neither the hour nor the “high crime” nature of the area tells us whether this defendant is likely to be a criminal, unless there is some reasоn to think that everyone driving in that particular area at that time of night is up to no good (or is a policeman). There is no testimony to that effect in this record.
Similarly, the out-of-state license plates add nothing. Defendant had a valid out-of-state driver’s license to go with them. Finally, nothing can be made—on this record—of the presence of the television and videocassette recorder. Certainly, such items are commonly stolen in burglaries. But neither Nauta nor Stroebel had any information that a burglary had been committed recently in the area and there was nothing about the items themselves to suggest they did not belong to defendant.
In summary, none of the foregoing circumstances either individually or collectively justified a suspicion on Nauta’s part that this defendant posed an immediate threat. Nauta’s suspicions, if justified, must rise or fall entirely on the bag under the driver’s seat. We turn now to a consideration of that factor.
There was no sign of a weapon in the car. Nаuta and Stroebel testified only that they saw what appeared to be a bag. Neither officer testified that he thought the object might be a weapon, or a case designed to hold a weapon.
Compare Michigan v. Long, supra
(knife in plain view);
State v. Riley, supra
(gun protruding from under seat);
State v. McGregor,
Without more facts than those adduced at the hearing, we think the answer under the Oregon Constitution, Article I, section 9, must be “no.” Although the police аre entitled to some leeway in taking protective measures, we must draw the line at some point. The facts articulated by Nauta in this case fall short of creating a reasonable belief that this defendant posed an immediate threat. In light of defendant’s cooperative attitude, his lack of aggressive or threatening behavior and the absence of any apparent weapon, the mere possibility that he might have committed a crime and the presence of what appeared to be a bag are not sufficient. The officers violated defendant’s constitutional rights when they instructed him to slide the bag into view. Accordingly, thе evidence obtained as a result of that instruction, i.e., the weapon and drugs found in defendant’s car, were obtained in violation of defendant’s constitutional rights and his motion to suppress them should have been allowed.
Cases of this kind are not unusual.
2
They are also frustrating, for two reasons. The first is that, if there was something more in this case than Nauta testified to— sоmething more that might have justified Nauta’s actions— it was not brought out. We cannot presume the existence of other favorable facts; we must confine our review to the record made. That record is insufficient. Our second frustration is with the failure of the trial court to make findings, either oral or written, on the issue that is dispositive todаy. The day may
*528
be fast approaching when we shall require such findings.
See State v. Dimeo,
The decision of the Court of Appeals is reversed. The judgment of the trial court is reversed, and the case is remanded for a new trial.
Notes
Former ORS 484.353(2) (b) was repealed by Oregon Laws 1983, chapter 338, section 978. In its place, the legislature enacted ORS 810.410(3) (b), which contains identical language.
See, e.g., State v. Valdez,