State v. BowcuttState v. Bowcutt
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Defendant was charged with unlawful possession of a weapon in violation of
The undisputed facts are derived from testimony given at the hearing on defendant’s motion by Lt. Dan Lambert and Sgt. Robert Walliker of the Multnomah County Sheriffs Department. The officers responded to a call for assistance from Officer Morrow, who was at the scene of a domestic disturbance. The cause of the disturbance apparently was Robert Goffs efforts to remove his property from the house of Sheryl Bowcutt, defendant’s daughter. Bowcutt had become “hysterical and wild” and had been placed under arrest by Morrow for harrassment. Neighbors of Bowcutt were on the premises, and Lambert described the scene as “chaotic.” Soon after Lambert arrived, Goff said that he had just spoken to defendant over the phone, that defendant was angry at him, that defendant was coming to his daughter’s house with a gun that he always carries with him and that he believed defendant would shoot him.
Three to five minutes later, a large van came to a skidding stop on the gravel shoulder of the road in front of the residence, nearly running over Lambert. Defendant alighted rapidly from the passenger side door, looking angry, red-faced and aggressive. After defendant had taken two steps from the van, Morrow grabbed him by the arm. He patted down defendant’s outer clothing while Lambert and Walliker stood nearby. Three other officers were also on the scene. Morrow felt a bulge in defendant’s clothing and asked him if he had a gun. Defendant replied “no,” but that he had a gun in the van. He turned toward the van, which was about five feet away from him. Lambert reached into the van and removed a pistol from underneath a cushion on the dashboard. Defendant was then placed under arrest.
Defendant was charged with unlawful possession of a weapon under
The trial court granted defendant’s motion to suppress, holding the seizure of the pistol unlawful and defendant’s statements inadmissible on the grounds that the officers’ stop of defendant violated
“A peace officer who reasonably suspects that a person has committed a crime may stop the person * * *.”
“To justify a stop under the statute there must be specific articulable facts on which to base a reasonable suspicion that the subject has committed a crime. * * * The determination of reasonableness is based on an objective test. * * *” (Citations omitted.)
The trial court emphasized that Goff did not inform the officers of the type of gun defendant carried and that, if the gun was a rifle, defendant would not have violated
Our decision here is supported by
State v. Lawson,
37 Or App 739, 588 P2d 110 (1978). In
Lawson,
the defendant was convicted of carrying a concealed weapon, in violation of
«* * * Qn ^he basis of these facts it would be illogical for the officers to conclude that Smith had returned without the gun. The officers therefore had probable cause to believe that either Smith or his companion had the weapon.” (Emphasis in original.) 37 Or App at 742.
The facts here are analogous to the Lawson facts, and the standard for stopping an individual is less than probable cause, State v. Valdez, 277 Or 621, 628, 561 P2d 1006 (1977). The officers here clearly had a basis for a reasonable suspicion that defendant had a concealed weapon on his person.
The trial court relied on State v. Henry, 55 Or App 503, 638 P2d 1167 (1981), rev den 292 Or 863 (1982), for the proposition that, at the suppression hearing, the officers were required to articulate their precise subjective motive for the stop. The trial court said:
“[The officers] weren’t specifically asked the reason for the stop. I mean, ‘what was in your mind when you stopped him; what did you think?’ That has to be in the record.”
The trial court read Henry too narrowly. In Henry, police officers indicated at a suppression hearing that they *596 stopped the defendant because they believed he had committed burglary or had stripped a vehicle. They did not indicate that they had stopped the defendant because of a traffic violation they had observed. We rejected the state’s argument that the traffic violation justified the stop.
“The ‘objective test’ applies to the facts actually relied upon by the officer making the stop. The test is not applied to the entirety of facts that the officer could have or should have observed and chose not or failed to rely upon. * * * The trial court properly disregarded the possible traffic infraction as the justification for the stop; the officer himself did not rely on it.” 55 Or App at 507.
We did not hold that an officer must testify to his precise motive for a stop. Here, the officers testified to specific, objective facts that make it clear that they stopped defendant because of their reasonable suspicion that he had a gun concealed on his person. That is all the law requires.
Defendant argues that, even if the stop and frisk of his person was lawful, the officers’ search of the van exceeded the scope of a “frisk,” permitted by
Terry v. Ohio,
392 US 1, 88 S Ct 1868, 20 L Ed 2d 899 (1968), and
“ ‘If the reasonable needs of protection require the officer to enter constitutionally protected areas, such as a vehicle, the inquiry is the reasonableness under all the circumstances of the intrusion.’ ” 57 Or App at 82 (quoting State v. Miller, 45 Or App 407, 411, 608 P2d 595, rev den 289 Or 275 (1980)).
We held that, because the officers had reason to believe that the defendant had a gun in the car, and because of the defendant’s proximity to the car, the officers’ search under the seats was reasonable for their protection.
The facts here are at least as compelling as those in McGregor. Defendant was stopped five feet from his van *597 and was hostile. The officer who frisked him felt a bulge under his outer clothing. He asked defendant if he had a gun. Defendant replied that his gun was in the van on the dashboard. He turned toward the van to point out or retrieve the gun. Although three officers were surrounding defendant at the time, he was acting in a hostile manner and was only a step or two away from the open door of the van that the officers then knew contained the gun. Under these circumstances, Lambert’s act of reaching into the van to get the gun was a reasonable intrusion to protect the officers and bystanders.
Finally, defendant contends that the evidence must be suppressed because the officers’ acts of physically detaining and frisking him constituted an arrest without probable cause. We disagree for the same reasons we rejected an identical argument in State v. Miller, 54 Or App 323, 327-28, 634 P2d 1361 (1981), rev den 292 Or 450 (1982):
“* * * [The officers’] original contact with defendant constituted a stop.ORS 131.605(5) . Because of the nature of the crime of which defendant was suspected, [they were] entitled at that point to frisk defendant for weapons.ORS 131.625(1) . Unlike the situation in State v. Groda, 285 Or 321, 591 P2d 1354 (1979), cited by defendant, [he officers] had not searched defendant’s person. In Groda the court determined that an arrest had occurred precisely because a search of defendant had been conducted which could only be justified as a search incident to arrest. 285 Or at 325-26. * *
As we have said, what was done here was permissible, because the officers had a well-warranted suspicion that defendant was violating
Reversed and remanded for trial.