*1 27, 1976, 15, December remanded Argued reversed November 15, 26, March January denied review denied reconsideration OREGON, Appellant, STATE OF JACKSON, Respondent. IVAN IVY 6457) (No. 76-2011, CA P2d 691 General, Thomas H. Denney, Attorney Assistant him on Salem, With the cause for argued appellant. General, and W. Johnson, Attorney the brief were Lee General, Salem. Gillette, Solicitor Michael the cause Honsowetz, argued Eugene, F William & Gardner him the brief was With on respondent. Honsowetz. *2 Tanzer, Lee and Schwab, Chief Judge,
Before Judges.
LEE, J.
LEE, J. indictment in a two-count charged
Defendant was which, and 166.240 ORS 166.270 violating with ownership possession respectively, prohibit upon concealed firearm] "[any capable felon, of a "carrying” and the convicted person” moved to Prior to trial defendant weapon. concealed charges which the the firearms suppress based, had been discovered as alleging any search "not incident result of a warrantless arrest, existence of justified by lawful and not circumstances, cause, or reason- probable any exigent stop [have able that would suspicion permitted] motion, frisk search.” In to that state response it filed a "memorandum in which opposition” were the question pro- asserted that the firearms "safety ducts of a search made for result purposes” subsequent of defendant’s actions” to hav- "suspicious ing "stop” by Eugene been to a subjected temporary officers. at which both the Following hearing *3 officer and the defendant as wit- arresting appeared nesses, the the motion to granted sup- circuit court press. 138.060(3),
The state to appeals pursuant that under the of the circum contending stances time, at the the "frisk” which led to defendant’s a "reasonable” intrusion viola arrest was tive of neither the Fourth Amendment to the United I, § Art Oregon nor 9 of the States Constitution Constitution.1 effect,
In the Mason indicates testimony of Officer the that he and a second encountered initially officer defendant and two in the course companions papers, not be violated "The and right effects, of the * * against people US unreasonable searches Const, to be Amend IV. secure in their and persons, seizures, houses, shall right people "No law shall violate in their the of the to be secure houses, persons, effects, papers, against and unreasonable * * Const, I, § seizure Or Art 9.
[881 ato call at responding Eugene from a tavern approxi- 1,1976. a.m. mately 1:30 on April Contacted inside the tavern, defendant and companions his were told that the closing establishment was and requested to finish their drinks and depart. The officers then proceeded outside they where waited defendant and companions his to depart order to insure that there would "no problems When, until left.” they thereafter, shortly defendant left companion the tavern were seen they by the second officer enter an bearing automobile expired plates. license Based plates, the expired the second whose own car was then patrol the exit of the blocking vehicle occupied by defendant companion, his the approached vehicle and the obtained driver’s license of defendant’s companion who was seated in the Having license, driver’s secured position. that the second car; returned to his patrol shortly thereafter defendant’s companion from alighted the detained vehicle and joined second officer at his so, car. doing While defendant’s left companion door on the driver’s side detained vehicle open. door, Through open Officer Mason observed the defendant on seated side of the vehicle passenger’s "* * * slightly over right bent to the front. He had his leg up against retracted the front of the seat the left ** *
leg He extended. had his left hand right inside right leg boot with the pulling pants hand of his right leg up.” observation, made
Having Officer Mason ordered defendant to take his hand his out of boot and both hands keep where could be seen. At that Mason, point, according Officer looked at him and "pulled pants leg back down over his boot began scratching leg.” Defendant was asked out A immediately step of the vehicle. *4 pat-down search exit upon conducted defendant’s from a in produced gun right boot and another in his hip pocket.
That initial detention of the vehicle which
[ ] 882 as a based it occupying passenger, defendant was as of plates, was on the absence valid license was itself lawful, is Defendant undisputed. companion, in to be due their what an presence appeared vehicle, subject motor illegally operated officers.2 temporarily investigating detained is The crucial whether Officer Mason was question authorized to conduct a "frisk” of the defendant based facts that to the upon arose detention. subsequent codify Enacted in an a attempt principle of 1, Ohio, set in v. Terry constitutional law forth 392 US 1868, Ed 2d (1968), 88 S Ct 20 L 889 and Sibron v. New York, 40, 1889, S Ed (1968),3 392 US 88 Ct 20 L 2d 917 131.625(1) ORS that: specifically provides
"A peace
stopped person
officer
frisk a
dangerous
deadly weapons
if the officer reasonably
provides:
2ORS 131.615
"(1)
peace
suspects
reasonably
person
A
officer who
that a
has
may stop
person and,
informing
person
committed a crime
after
peace
inquiry.
that he is a
make a reasonable
"(2)
inquiry
vicinity
The
detention
shall be conducted in the
stop
longer
and for
a
than
reasonable time.
"(3)
only
inquiry
The
shall be
if
considered reasonable
limited
suspicion.”
the immediate circumstances that aroused the officer’s
131.605(4)
(5)
ORS
define two of the relevant terms:
"(4) 'Reasonably suspects’
peace
officer
means
holds belief
that is reasonable under the
the time and
circumstances
at
place
he acts as authorized ORS 131.605
to 131.625.
"(5)
'stop’
temporary
person’sliberty by peace
A
is a
restraint of a
any place.”
present
1,
Terry Ohio,
1868,
(1968);
See
Ed 2d 889
v.
suspects that person presently the is armed and danger the present.”4 ous to officer or other person A "frisk” therefore, may, accompany an investiga tory stop based on a reasonable suspicion that car or occupants its with activity have a connection criminal believes, when the detaining reasonably "under (ORS 131.605(4)) the of the circumstances” at the he time makes the limited that the him is "armed suspect confronting and presently The dangerous.”5 court below concluded apparently that under the circumstances to the leading up "frisk” case, in Mason, this as related Officer a reasonably prudent man would not have been warranted in the belief that the defendant was armed and thus consti tuted a danger to the of those in safety involved lawful "stop.”6 We cannot agree. 131.605(2) person’s patting ORS a "frisk” of a defines as "an external clothing.”
outer prudent man in the circumstances would be warranted in the supra, whether the officer acted arrest 'hunch,’ draw from the certain that the individual is where dangerous must be reasonable search for his safety "* he * * but to the given, has reason or that individual individual, [T]here US at 27. facts not of specific must others was in in weapons (Emphasis regardless his inchoate and believe that light reasonably be a a crime. reasonable inferences which he is entitled to armed; of narrowly for the his of whether he has supplied.) The officer need not be danger. in such experience. he is the issue is protection unparticularized suspicion drawn dealing * * * circumstances, authority * * *” whether And in of the with an armed and probable Terry Ohio, police determining due reasonably absolutely belief permit cause to v. weight that or specifically 6The court circuit held * * "* the evidence we have is that Officers for some reason they companions] [tavern went to found where his * * * apparently companions give the defendant and his them no * * * conduct, difficulty disorderly there’s as far as Officers * * * far know so as the evidence the case is concerned these are * * * law-abiding they’re citizens come out and the vehicle * * * interrogates in is blocked. One of the Officers driver this down, reaching is in defendant doing he’s he could have been things scratching all number foot or of his decided take his off, pull pant leg shoes he could have decided to out from boot put pant leg in—but there in the evidence no that the reason dangerous, think Officers a criminal record or that this individual is one that’s that he has engaging illegal he there. If conduct
[884] 131.625(1) sets forth a standard of "reason able” conduct commensurate with the constitu Terry supra, tional standard Ohio, enunciated in specifically provides only and "reasonably suspect” that an officer need
that a detained citizen dangerous proceeding is armed and before to under precaution conducting pat-down take the a limited weapons. search for The officer need not wait until he absolutely danger becomes certain that a to his own safety, safety presently others, and the exists before taking that action. *6 "stop”
In case, the instant where the was made during the hours of darkness after defendant had been departing nearby seen tavern, from a the nature of his by act while i.e., observed Officer Mason — reaching place weapon might boot, into his where a conceivably give be hidden —was sufficient to rise to a suspicion” "reasonable that he was armed. Officer proceed was, Mason protect therefore, entitled to present by subjecting himself and the other officer weapons "frisk”; to a discovered were therefore obtained and are admissible as evidence.
Reversed and remanded. dissenting.
SCHWAB, J., C. I have little doubt but if the state had made an adequate presentation apparently of the evidence that presentation available, was would have demons- police justified trated that the in the "frisk.” The presented. fact remains that such evidence was not On inadequate agree make, record the state chose to I reaching gives grounds requiring into his boot for him to submit to a Terry-type anything search most he could have done of that inside including pocket cigarette automobile reach in the for a or reach in the pocket gum adjust for a glove or reach to his belt or reach into the compartment justify if Terry-type any this would justify action he have taken would one and I don’t think that’s the law.” ]885 judge’s reasoning with the trial and result as set forth majority opinion. in footnote 6 of the I dissent. concurring.
TANZER, J., regarding The record the events at the tavern is provides support deficient and for the detention and justification frisk. I Therefore would limit the for the parking expired search to the events on the lot. The plate license is itself an infraction and also indicates possibility of a stolen car. For either reason or police may reasonably inquire. both, the The hand-in- ambiguous, may justify police incident, boot while appropriate. wariness and the frisk was therefore judge my colleague The trial astute consider the hand-in-boot transaction to insufficient to cause safety. to have concern their Acts which appear e.g., innocent, would other situations reach- ing pocket might into court, one’s as noted the trial special nevertheless cause reasonable officer to take precaution making inquiry people, while two in a parking night. lot, tavern late at In situation, such a I give great prudence. tend to latitude for Therefore, I concur.
[886]