Defendant appeals a judgment of conviction for interfering with a peace officer. A person commits the offense of interfering with a peace officer, when, “knowing that another person is a peace officer,” he or she “[r]efuses to obey a lawful order by the peace officer ***.” ORS 162.247(l)(b). Defendant assigns error to the trial court’s denial of his motion for a judgment of acquittal. He argues that the state failed to present sufficient evidence that the deputy’s order to exit his vehicle was lawful. The state argues that the order was justified by the officer safety doctrine.
When we review the denial of a motion for a judgment of acquittal, we view the facts in the light most favorable to the state. State v. Evans,
In a bench trial, deputies Sheldon and Shelly testified about the events that led to the charge. In November 2013, they were dispatched to a house in a “fairly high crime” area in Milwaukie. Dispatch had received information from a caller about a suspected burglary. The caller was not identified at trial. The caller said that two people were using a key to gain entry to the house, that the caller was a friend of the homeowner, and that the homeowner was out of town so no one should be present at the house at that time.
It was dark outside as the deputies approached the house. Although there were street lights in the area, the overhead trees and shrubbery rendered the lights “pretty much null and void.” The only illumination was the deputies’ flashlights. In the driveway, Shelly saw what he thought was a Ford Explorer that was backed into the driveway pointed out toward the road. Based on his training and experience, Sheldon recognized “that’s a faster way to get out of a location.” A vehicle will “typically back in” if the driver is “planning to make a speedy retreat.” The headlights were turned off. Someone was inside the vehicle in the driver’s seat. Because dispatch said that two people were attempting to break into the house, Sheldon was concerned that “possibly one [person] had gotten into the house and one was sitting in the car.”
The deputies identified themselves to defendant and asked him to roll down the window. They “just wanted to talk to him, figure out *** why he was parked in that driveway, what his reason for being there was.” Defendant did not roll down the window. He became “very agitated and started digging around by the center console area and the other side of the passenger seat.” Neither deputy could see what defendant was attempting to reach, but they were nervous that he was looking for a weapon. A center console, according to Sheldon, is a “concealable spot that makes it very easy for that person to access weapons [or] any other things that they might use to hurt [the deputies].” Sheldon considered defendant’s actions to be “extremely suspicious behavior given the circumstances.” Sheldon ordered defendant to put his hands on the steering wheel, and defendant initially complied. Defendant asked why the deputies were there. Speaking loudly through the window, Sheldon explained that the deputies were investigating a potential burglary. At that point, defendant again “became agitated” and “reached down and grabbed his cell phone.” Shelly drew his gun, and Sheldon displayed his Taser, but defendant continued to refuse to roll down the window to speak with them. Defendant “just kept talking on the phone.” Sheldon ordered defendant to open the door and talk to the deputies, but defendant did neither.
While Sheldon reiterated the purpose of the investigation, defendant was “very agitated.” Defendant “kept kind of flinging his body around,” “bringing [his] phone up and down, trying to push real hard on the buttons, [and] looking all around the car.” Sheldon repeated that the deputies were investigating a burglary, that they “needed to talk to him to figure out what was going on,” and that defendant should open the door. Defendant refused. He told the deputies through the closed window that he knew the homeowner. Sheldon again instructed defendant to open the vehicle door, but defendant did not and refused to talk further. Sheldon ran the license plate number on the vehicle and learned that it was registered to an Oregon City address, not to the address of the house.
A third deputy, Peterson, arrived. Peterson advised Sheldon and Shelly, who were then at the driver’s window, that he could see a knife with a six-inch blade resting between the center console and the passenger seat—the same place that defendant previously had been “digging.” Upon hearing Peterson’s report of the knife, defendant “reached down and grabbed [the knife] and chucked it on the passenger side floorboard.” The “whole time [defendant] was panicked, fidgeting in the car.” Sheldon repeated, “Open the door, talk to us, we got to figure this out. We’re here for a burglary. You need to open the door and talk to us * * *.” Still, defendant
Asked later if they had safety concerns, Sheldon testified:
“Yes, with the weapon, the knife being down there, and it was dark at that time. So it was—only the light that was really available was the flashlight. So we wanted to get it out of the car and figure out if there [were] any additional weapons on the subject.”
Putting the situation in perspective, Sheldon explained that it is not uncommon for deputies to respond to a potential burglary call and “have it be someone that [has] a perfect good right to be there.” Sheldon said, “Most of the time people roll down the window and talk to you on their own.” In this instance, however, defendant exhibited “extremely rare behavior,” which “escalated” throughout the encounter. Sheldon opined that the deputies’ actions “were a direct reflection of [defendant’s] actions.”
The deputies told defendant that if he failed to comply, they would arrest him for the offense of interfering with a peace officer. Because defendant continued to refuse to open the door, to step out, or to respond when told he was under arrest, the deputies’ supervisor gave them permission to shatter the vehicle window. Defendant was removed from the vehicle and arrested.
The state charged defendant with a single count of interfering with a peace officer. The state did not specify in the charging instrument, nor later elect at trial, which refusal to comply with the deputies’ orders formed the basis for the count. At defendant’s bench trial, he moved for a judgment of acquittal on the basis that the deputies had not given any “lawful order” that he refused to obey, within the meaning of ORS 162.247(1)(b). The trial court denied the motion.
On appeal, defendant assigns error to the trial court’s denial of his motion for a judgment of acquittal, making two principal arguments. First, he argues that the order to exit the vehicle was a stop that was not justified by reasonable suspicion of criminal activity. Second, he argues that the order to exit the vehicle was not justified by the officer safety doctrine. He explains that his behavior “unequivocally indicated that he did not wish to engage with the deputies whatsoever,” and, therefore, he could not have caused the deputies to have reasonable suspicion that he might pose a threat to the deputies.
The state makes corresponding arguments in reverse order. The state argues that, because the order to exit the vehicle was based on officer safety concerns, it was a lawful order that defendant was required to obey, regardless of the legality of the original or underlying encounter. In the alternative, the state argues that the order was lawful because the caller’s report, the deputy’s observations, and defendant’s erratic behavior gave the deputies reasonable suspicion of a crime by the time they effected a stop of defendant.
In resolving this appeal, we need not decide whether the deputies had reasonable suspicion to stop defendant to inquire about burglary at a point in time prior to the ultimate order to exit the vehicle—the order whose lawfulness is at issue. That is so because, even if the initial seizure of defendant was unlawful as unjustified by reasonable suspicion of burglary, the ultimate order to get out of the car would be lawful if, in the totality of the circumstances, that order was justified by legally sufficient officer safety concerns. See, e.g., State v. Bistrika,
“An order is lawful’ if it is authorized by, and is not contrary to, substantive law.” State v. Navickas,
Oregon courts recognize that an officer “must be allowed considerable latitude to take safety precautions” during a stop, taking into account the circumstances “as they reasonably appeared at the time.” State v. Bates,
Under circumstances comparable to those presented here, we have consistently concluded that officer safety concerns justified similar directives. Those cases have focused on a defendant’s noncompliance with simple requests or instructions, sudden unpredictable movements in obstructed or concealed areas, and the likelihood that a weapon was within reach. See, e.g., State v. Morgan,
Of particular significance, we have noted that the “presence of a weapon” is a fact that may support a concern for officer safety. See, e.g., State v. Thomas,
In this case, the deputies responded to a report of a burglary in progress in a dark area on a November evening. This was not a daytime encounter involving jaywalking. See, e.g., Thomas,
Those circumstances were relevant insofar as they contributed to make it reasonable for the deputies to think that defendant might pose an immediate threat of serious physical harm. Potentially, a look-out man or a get-away driver could present a greater risk to an officer than a jaywalking pedestrian. See, e.g., State v. Stanley,
The deputies found a car parked, as if for an escape, with its headlights turned off. Working in the dark with flashlights, the deputies encountered defendant who refused to keep his hands on the steering wheel, who refused to roll down the vehicle’s window, who possessed a large knife, who refused to open the door, and who refused to step out of the vehicle. From the outset, defendant was agitated. He immediately “started digging around by the center console area and the other side of the passenger seat.” After placing his hands on the steering wheel, he returned to erratic behavior. At that point, defendant became “further agitated.” He was “flinging” his body about in the vehicle, raising and lowering his phone, and “looking all around the car.” Neither deputy could discern what defendant was searching for, and they were nervous that he might be trying to reach for a weapon. Defendant’s conduct was “extremely rare,” and over time it “escalated.”
Defendant argues that he mitigated any reasonable concern for safety by throwing the knife to the passenger floorboard once the knife had been spotted. We are unpersuaded that moving the knife eliminates justification for the deputy’s order—for two reasons. First, the knife remained accessible to defendant within the vehicle. Second, the presence of one weapon “may reasonably increase, rather than lessen, the officer’s suspicion that the party is holding additional weapons.” State v. Pope,
Given our standard of review of a motion for judgment of acquittal, Evans,
Affirmed.
Notes
Defendant became compliant. When Sheldon asked why defendant would not open the door to allow the deputies to identify him or talk to him, he told Sheldon that “he didn’t know why.” When Sheldon asked who defendant was trying to call, defendant said “he was trying to call a family attorney.” Because defendant “calmed down a lot” and began to talk to the deputies, he was issued a citation, rather than taken to jail.
The trial court did not initially specify an order in its ruling denying defendant’s motion. The court later specified that the ultimate order to exit the vehicle was the basis for its verdict. The parties focus on that order on appeal.
The state submits, and, on appeal, defendant does not dispute, that “[t]he deputies did not seize defendant until they ordered him to place his hands on the steering wheel.” That event occurred moments before the disputed order to get out of the vehicle. As a consequence, this case is in the same posture as Neill,
Where there are countervailing circumstances—a defendant remains cooperative “at all times” and “made no suspicious movements during his interaction with the police officers” involved in the encounter—we have reached the opposite result. State v. Amell,
Generally, that fact, by itself, of course, is insufficient. State v. Smith,
Based on Simpson, the state contends that the deputies had reasonable suspicion of a crime so as to justify the disputed order. In Simpson, reasonable suspicion of a crime was found, based on a report from an unidentified caller, the caller’s personal observations, and confirming observations of the officer.