*1 Argued April 15, petition and submitted affirmed October for review denied (326 234) 16, 1997 December Or STATE OF OREGON, Respondent, v.
GORDON PHILIP RICKARD,
Appellant.
A91303)
(95-03-32288; CA
Timothy General, Assistant A. Hardy respondent. argued On the brief were the cause for Virginia Attorney Myers, Linder, Solicitor General, L. Attorney Wallace, E. Assistant and Eleanor General, General. Judge, Haselton, De Muniz and Deits,
Before Chief Judges. MUNIZ, J.
DE dissenting.
Haselton, J., MUNIZ,
DE J. Defendant from a conviction for appeals possession of a controlled substance. ORS 475.992. He argues trial court erred in certain evidence that failing suppress he contends was obtained to an search. pursuant illegal We affirm.
On the 26, 1995, of March evening Portland Police Officer Johnson was on routine patrol driving north on 82nd Avenue in Portland. She at a stopped red behind two light cars, other a Datsun that was immediately in front of her and truck that was in front pickup of the Datsun. The occupants of the jumped out of that vehicle pickup and started yelling excitedly Johnson, toward “He’s got gun, gun, gun,” the Datsun. pointing Johnson radioed assistance, turned on her overhead lights, drew her gun and aimed it at of the Datsun, occupants and ordered the pickup park around the pickup corner, out of the line of any possible gunfire. driver of the pickup obeyed offi- order, cer’s and Johnson remained positioned with her gun aimed at the Datsun until her backup arrived.
Several cars police arrived, and the officers initiated a Officer “high-risk” stop. Coorpender, who was in the second arrive, car to testified as to the of a sequence high-risk stop:
“Q [By prosecutor:] Take us a little bit more specifi- cally through this high risk and removing the occu- pants from the you vehicle. Did your have weapons drawn? Yes,
“A we did.
“Q they And were ordered out one at a time? Yes, they
“A were. —
“Q Okay. Take through us —
“A sequence Yeah. It’s a
“Q stop. —the
“A —for officer safety. The people the car—and the suspects’ safety, safety. and public And since poten- there’s tially weapon involved, a going we’re to assume that there’s weapon in there and it potentially could against be used someone. everyone we at keep gun point, give very explicit
“So we instructions, out taking people of the car one at a time. We usually they tell them if do not they follow our instructions may shot, just to be communicate to the seriousness of the situation. * * * very high
“This is risk situation. There is a res- immediately People kept taurant behind where we were. * * * coming very busy out to look it. This at street. So * * blocking But, still, we traffic impossible had cars *. it’s to move—remove citizens from potential gunfire in this situation. out, always
“So we take each person bringing them out on a side where we have the visibility. maximum The two always stay car, lead cars on the with their guns pointed the car. And even got when we think we’ve all the out people of the car —because we don’t know somebody might not can’t leaning be down where we see them.
“And then we get enough have —we wait until we offi- cers there that we have what’s called a custody team and as system, they is directed out of the car the PA point custody reach a certain and the team begins issuing commands, out, taking them, them handcuffing checking they weapon, them to see if have the and then secure them police in a car.
" * * * * *
“Q why you that, And doing sir? safety.
“A Just for officer primary Because the focus of going the officers at the scene was to be on the car once we got the handcuffed. people they We want to make sure any didn’t have weapons escape articles of because be, less, they’re going to more or behind us the rest during high-risk stop. though they’re this Even handcuffed (inaudible) car, they’re police still which makes us con- cerned. So we want to take items out of their get away them from them. *4 typical situation,
“And as is in that kind of we’re not paying coming just taking attention to what’s out. We’re out of so that we nothing items know that there’s there, or we don’t anything believe there’s in there that can harm us or allow them to escape.” However,
The officers did not find one of the gun. a admitted he a wrench and occupants Datsun’s had used it such way reasonably held a could believe was a At some gun. point during stop, wrench left, without their names. pickup giving
When concluded that there was no police gun, removed the handcuffs from and moved the they everyone occupants and the Datsun to school lot so that high parking could return all of the they they items that had taken from each person’s pockets. Coorpender placed the items on the hood of one of the and police began cars the items. returning the items taken were a small Among baggie marijuana1 a marijuana items, and to those pipe. Referring Coorpender asked, ‘Whose this?” Defendant answered that the items were his. Coorpender remaining continued return the items to the four occupants eventually came to a cloth When drawstring bag. Coorpender asked who claimed the bag, defendant it replied Coorpender was his. then asked defendant what was inside the bag, and defendant that it contained replied “more baggies.” bag Because not shut, tied completely Coorpender into it and peered saw bill rolled into what he from recognized prior his training as a “snort tube” experience used for ingesting controlled sub- stances one’s nasal through passages. He opened bag more and found small baggies powder white resi- containing due, which he believed be the residue of an con- illegal trolled substance. Defendant was placed under arrest and was eventually charged with possession methampheta- 475.992(4). mine. ORS
Defendant moved to the evidence found in suppress bag. his He drawstring argued officers exceeded the them, authority given under ORS 131.615 and ORS 131.625, to and frisk a weapon, they him for and that stop I, violated his under Article section rights 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution they when him and searched his stopped The trial court concluded that the was based on pockets. baggie marijuana Coorpender appeared testified that the to contain less ounce, Although Coorpender an than and therefore no crime had been committed. violation, defendant to do could have cited he chose not so. *5 that of and the search suspicion subsequent
reasonable I, reasonable under both Article sec- defendant’s was the Fourth Amendment. It therefore denied the tion and tried on to Defendant thereafter suppress. stipu- motion and lated facts convicted. to the rul- assigns
On defendant error court’s appeal, to and that the offi- again his motion ing suppress argues on 131.625, 131.615 ORS as actions violated ORS well cers’ I, 9, and the as his under Article section Fourth rights We with defendant’s threshold argument Amendment. begin the Datsun was unlawful. Defendant stop argues the the statements and actions of the pickup’s occupants sufficient Johnson with reasonable sus- were not to provide a gun to believe there was in the Datsun. Defen- picion if moreover, that even Johnson sus- reasonably dant argues, “a in an that someone had a automobile gun, weapon pected conduct.” necessarily is not criminal ORS 131.615 provides:
“(1) reasonably suspects A who that a peace officer person and, crime the may stop has committed a person is a informing peace peace officer person after officer, inquiry. make reasonable “(2) inquiry The detention and shall be conducted in vicinity longer and for no than a reasonable time.
“(3) only be considered reasonable if inquiry shall circumstances that aroused the limited to immediate suspicion.” officer’s 131.605(4) provides:
ORS
“ officer ‘Reasonably peace means that a holds suspects’ totality is under of the circum- reasonable a belief peace time and existing place at the stances acts[.]” in the
In this Johnson believed that someone case, at the gun pickup’s Datsun had brandished least one of the Datsun’s occupants believed that at further 163.190(1) (“A See person to a threat. ORS present continued crime of if or conduct the menacing per- commits the word another in fear intentionally place son attempts imminent serious That belief was based on physical injury.”). actions, and demeanor of unidentified cit- words, several izen informants. In whether determining informants’ reliable to sufficiently give statements rise to reason- able we consider three factors: suspicion, exposed possible
“One is whether the informant is crimi- prosecution report nal and civil if the is false. That factor is informant if the his her gives satisfied name to law enforcement authorities or if the informant delivers the person. information The second factor is report personal whether based on the observations may the informant. An officer infer that the information is *6 the personal based on informant’s if infor- observation the mation contains sufficient detail that
“ apparent ‘it that the is informant had not been fabri * * * [the] out cating report of whole cloth [and] the report [is] of the sort which in experience may common recognized having be as been obtained in a way reliable * * States, Spinelli 410, 417-18, 89 *.’ v. United 393 US S (1969). Ct 21 L Ed 2d “The final factor is whether the officer’s own observations corroborated the informant’s may information. The officer by the tip observing illegal activity corroborate either the or by finding the the person, vehicle and substantially location by as described the informant.” State Villegas-Varela, v. (1994) (citations 112, 115, 887 132 Or App omitted; P2d 809 original). in brackets test, that, that we conclude in
Applying the totality circumstances, the the informants’ statements, with coupled observations, Johnson’s rise to a gave reasonable suspicion in the that someone Datsun had a displayed gun. First, the occupants pickup themselves to crim exposed possible inal and civil prosecution by information to conveying person. Johnson in Although eventually left scene, they there is no indication that left because they their names or that unwilling give had they any Moreover, motive to lie. the occupants’ apparently spontane ous and actions and demeanor were consistent agitated fully just seen a firearm brandished on a street. having busy Johnson’s observations that personal regard materially corroborated informants’ statements. Thus, Johnson had not in the Datsun someone suspicion only a reasonable way also that it shown in such a as had a but had been gun, The 163.190. circumstances con- presented to violate ORS Johnson to other and pedes- threat motorists tinuing aat intersection. busy trians that, next of whether argues regardless
Defendant that there in the reasonably suspected gun the officers Datsun, their search of defendant was unreasonable under He should argues the circumstances. officers have to a of each outer pat limited their search down occupant’s instead of a full search of each clothing occupant’s pockets. state counters officers’ conduct was warranted concerns, Johnson’s reasonable belief given aimed, in the Datsun was given poten- that someone circumstances, busy at a tially e.g., night volatile Thus, by Coorpender, as described officers intersection. all from the removing pock- justified objects occupants’ felt of whether those could be ets, objects regardless possibly the “high-risk” because of situation. weapons, Defendant contends that conduct was unlawful it the scope in that exceeded of ORS 131.625. That statute provides:
“(1) may stopped for dan- peace person A frisk deadly weapons reasonably suspects if the officer gerous armed to the dangerous and presently *7 present. or person officer other
“(2) frisk, peace feels If, in the course of the officer is a object peace reasonably suspects an officer which deadly may take dangerous weapon, peace or officer reasonably necessary to of possession such action as is take weapon.” 131.605(2) of defines a as “an external a ORS “frisk” patting an officer sus- clothing.” Thus, reasonably outer once person’s the statute dangerous, per- that a is armed and pects an officer to external initially person’s mits pat-down and, if, for in the course of that pat-down a clothing weapon, he is reasonably what or she suspects the officer finds weapon. out the may pull weapon,
525 conduct with defendant the officers’ agree We 131.605(2). exceeded that described in ORS Rather than taking and then engaging preliminary pat-down posses detected, so objects immediately pulled every sion they other Datsun thing out of defendant’s and the occupants’ pockets.
The fact that the
did not
officers
follow
statutory
not, however,
is
conclusive. We have never held
procedure
procedures
frisk
of ORS 131.625 define the outer
limits of
safety
measures
the context of
permissible
Indeed,
we have
stop.
implicitly
See,
concluded otherwise.
Austin,
217, 223-26,
State v.
145 Or
929
1022
e.g.,
App
P2d
(1997) (where
(1996), rev den
In the court I, held that Article section forbid “does not an officer to steps pro- take reasonable if, tect during himself others the course of a lawful citizen, develops encounter suspicion, the officer a reasonable specific facts, based upon articulable might the citizen ical an pose phys- immediate threat of serious injury the officer or to others then Or at present.” 304 524.
The court further an officer “must allowed explained be considerable latitude to take in such situ- precautions “Bates, not, however, Austin, ations.” Id. a carte blanche.” at 224. The must be reasonable App precautions “under circumstances as at the they reasonably appeared *8 526 Bates, Thus, 525. the decision was made.” at
time that under Bates consider- necessarily requires “reasonableness” of nature and extent of the perceived danger ation the both restraint from the the of intrusion or degree resulting and of that are “unchar- conduct, mind we not to keeping officer’s of officers split-second the decisions itably second-guess” deadly, circumstances. dangerous, potentially under working Id. at 524.
The officers’ shows that the circumstances testimony crowded, at a intersection of an busy here —a night-time stop with several who were possibly automobile just deadly such presented dangerous, potentially armed — the that call for considerable latitude in offi circumstances however, the dissent, The concludes that offi cers’ response. the with removing pockets from everything occupants’ cers’ because, unreasonable although out frisk was engaging * * * the very great was time indis danger by the “initial occurred, danger of that had pockets criminate emptying of mul substantially by presence virtue of mitigated been and the 150 weapons handcuffing.” with drawn tiple officers at 528-29. Or App instance, assuming pres-
In the first even danger ence officers weapon-displaying mitigates of claims, does not explain the dissent the dissent the extent risk danger of a meets con- why mitigation” a “substantial that, of no authority suggests cerns for We know safety. is officers are “substantially mitigated,” if a risk of danger from eliminate risk. Addi- trying completely any precluded at by focusing the dissent arrives its conclusion on tionally, officers drawn multiple there were three factors: handcuffed before occupant that each guns, necessarily albeit not exclu- checked, and that “primary, detected firearm, which could be sive,” concern was object Or The dissent treats these 528. pat-down. App of the cir- discrete, dissolving thereby totality factors as continuing and ignoring possibility danger cumstances view dissent’s fails stop until was completed. confronted with a situa- officers were acknowledge an number of persons unknown involving weapons tion area. public in a crowded entirety,
When the is viewed in its be, as it must apparent assuming it dissent errs in that hand- *9 cuffing occupants frisking gun sufficiently and for a met all concerns for in those circumstances. When Johnson assistance, called for all she knew was that someone had yelled occupant to her that an of a mobile car in front of her pointed gun. had Neither she nor the officers who assisted gun her knew whether there inwas, fact, a or which of the occupants several in the car had it. Indeed, officers did occupants not know if there were in the car who were not visible. acknowledges,
In other words, as the dissent potential danger great. stop was The location of the exac- potential. stop night busy erbated that The occurred at at a intersection in front of a blocking restaurant. Police cars were People the intersection. came look, and the officers could danger. not occupants though remove them from the area of Even placed police would be handcuffed and car, safety concerns were not over until the car had been Coorpender searched, and testified that officers remained Handcuffing possibility concerned. did not remove all of dan- ger escape if occupants items were left in of the when the occupants circumstances included that the were a group, occupants might unknown remain in the car, and guarded there no was evidence that an officer patrol in the car. possible safety precautions short,
In the need for all paramount, surroundings and the of the demanded quick response. procedure The the officers followed mini- danger public mized the risk of to the officers and to the and quickly possible. did so as as The dissent errs' in second- guessing response the officers’ under these circumstances. discovery illegal of the narcotics did not flow from an denying and search, the trial court did not err in the motion suppress. Affirmed. dissenting.
HASELTON, J., agree every aspect majority’s analysis I of the except the emptying last: The officers’ indiscriminate and handcuffed, after he had been while
defendant’s pockets
held at
cannot be
being
gunpoint,
and other suspects
he
519, 524,
Like my colleagues, And, at least initially. highly dangerous, here were stances I am mindful of Bates’ admonition not to my colleagues, like decisions of offi- split-second “uncharitably second-guess” deadly, circum- dangerous, potentially under working cers Or at 524. I have no illusions —recent Bates, 304 stances. easier, safer, far us none —that it is events permit them on the in cases like this than to apply opinions write street, day. night constitutional there
Nevertheless, system, our exceeds those limits. When be, must limits. This case are, and circumstances, the officers’ con- in the totality viewed *10 from the here, everything occupants’ pock- in removing duct the frisk, benign in a exceeded even ets without engaging Id. latitude” that Bates allows. “considerable three derives from a combination of That conclusion began removing every- the time the officers First, by factors. several occupants’ pockets, police from the Datsun’s thing Second, drawn. each scene, guns at the all with officers were the officers checked his or was handcuffed before occupant not exclu- Third, necessarily her albeit pockets. primary, which, if firearm, concerns was a sive, safety of officer object be detected could, by pat- in a presumably, secreted pocket, a frisk would have been There is no suggestion down. or inadequate. ineffective Bates contemplates
As the majority acknowledges, of the magnitude per- of the nature and consideration both I, Article intrusion, of the of which degree ceived threat and any given of 9, ordinarily validity would preclude. section at in the of circumstances light measure must be assessed undertaken. time that measure is It was Here, very great. pre- the initial was danger in the officers’ conduct of that danger because cisely the Datsun at gunpoint out of ordering reasonable and permissible. them was handcuffing then However, the time the indiscriminate emptying pockets occurred, had been danger substantially mitigated by multiple weap- virtue officers drawn presence Moreover, noted, as there no handcuffing. ons and as to why this record would not explanation pat-down reasonably safety addressed the officer concerns as so have involuntary of intrusion —the Finally, degree mitigated. removal of all from a objects and indiscriminate physically clothing restrained person’s very great. —was that, factors, those concludes Despite majority were, nevertheless, the officers entitled to elimi- “completely any risk,” 526, nate 150 Or at and to undertake App “all pos- safety sible 150 Or at 527 precautions.” App (emphasis The majority gives no for that original). authority absolutist is never approach which, given safety certain, could — as just easily justify strip Indeed, search. such a categorical cannot be reconciled approach with the dictates of reason- ableness, which, the itself majority acknowledges, constitu- tionally circumscribe permissible measures. See App end, 525-26. In neither the state nor the can majority why a explain simple frisk would not have been reasonable and in these adequate circumstances1
It was incumbent
as the
upon
state,
proponent
the warrantless
search so effected,
why,
to demonstrate
given
safety concerns as
at the
mitigated
time of the
search,
the wholesale indiscriminate
intrusion was reason-
ably warranted. See
Bates. It
to do
generally
failed
so. Accord-
ingly,
emptying of defendant’s
constituted
anille-
I,
search under Article
section 9.
v.
gal
Johnson,
See State
(1993)
151, 158,
Or
851 P2d
rev den
Finally, suppression required the ille drawstring of the narcotics in the flowed from ery bag there search. The state was no gal suggests “exploita tion,” because the causal link between and the any illegality more than the sort of “but discovery drugs nothing 27, 854 for”-ness disavowed in State v. P2d Rodriguez, (1993). I The link between the conduct disagree. illegal and the evidence to be was direct: The sought suppressed itself evidence that defendant literally conduct revealed the motion to sought suppress. Consequently, suppress should have been granted.