State v. Fairley

576 P.2d 38, 33 Or. App. 271, 1978 Ore. App. LEXIS 3280
CourtCourt of Appeals of Oregon
DecidedMarch 20, 1978
DocketNo. C 77-02-02660, CA 8857
StatusPublished
Cited by4 cases

This text of 576 P.2d 38 (State v. Fairley) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Fairley, 576 P.2d 38, 33 Or. App. 271, 1978 Ore. App. LEXIS 3280 (Or. Ct. App. 1978).

Opinion

JOSEPH, J.

Defendant was convicted after trial to the court on a charge of criminal activity in drugs. ORS 167.207. He appeals, assigning as error the denial of his motion to suppress evidence seized from his person.

Two Portland police officers seeking a man who had earlier committed an armed robbery were parked along N. E. Killingsworth and observed an unoccupied car which had been identified by other police as one used on occasion by the suspected robber. They had been furnished a description and a photograph of the suspect. The officers saw the defendant walk down the driveway of a house in front of which the car was parked. One officer testified the defendant resembled the robbery suspect in height, weight and facial features. The other officer said he assumed defendant was the man they wanted because he was coming from the house where the car was parked.

As the officers started to drive toward defendant, he glanced at them. When he reached the sidewalk he turned and walked in the direction away from the police car, passing the suspect vehicle. He was starting up the steps of another house when the officers pulled up at the curb and got out of their car. One of the officers asked defendant to come back down to the sidewalk. Defendant came down and stood face to face with the officer, who testified that, after this closer look, he still resembled the robbery suspect. Defendant was asked for identification. He replied that he had none, but he did give his name. The officer then asked him to remove his hands from his jacket pockets. Defendant removed his right hand and held his arm down by his side but away from his body. He did not, however, do the same with his left arm, which he held tightly to his body, so that the officer could neither see nor readily touch the left pocket. Defendant testified that he removed his left hand slowly and held it over the pocket.

[274]*274The officer patted the outside of the right pocket and without asking defendant to move his arm quickly reached inside the left pocket. The record does not disclose precisely how the officer gained access to the pocket. He testified that

"* * * because of the arm blocking the other pocket, I felt it was safer for me to just reach around quickly and run my hand into his pocket to pat that one down for a weapon.”

When he reached into the pocket, the officer felt several plastic covered round objects which, from his experience, he concluded were "balloons” of drugs. He removed these objects, which did in fact turn out to contain drugs.

Defendant contends that the officers did not have a reasonable suspicion that he had committed a crime to justify the stop, as is required by ORS 131.615.1 He also argues that in reaching into his pocket, rather than patting it externally, the officer violated defendant’s rights under both ORS 131.6252 and the Fourth Amendment to the United States Constitution as construed in Terry v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968).

[275]*275The police officers did know that a crime had been committed and had a description and photograph of the man believed to have committed it. Defendant came from the house in front of which the car known to have been used by the sought-for person was parked. One officer testified that defendant resembled the suspect in several respects. Based upon a comparison of defendant and the suspect’s photograph, the trial court agreed that there was a reasonable similarity. There is nothing in the record other than unsubstantiated statements by defense counsel to indicate that the officer’s belief that defendant was the suspect was not reasonable. The trial court ruled correctly that the stop was proper under both the statute and the Fourth Amendment. See State v. Valdez, 277 Or 621, 561 P2d 1006 (1977).

The second argument raises a more substantial problem. In essence it comes to this: When an officer stops a person upon reasonable suspicion that he has committed a crime, and the officer has a reasonable suspicion that the person may be armed and presently dangerous, and the person acts in a manner which obstructs an external pat down, must the officer demand the suspect’s cooperation or in some other manner attempt to overcome the obstructive behavior, or can the officer immediately go beyond a pat down if he does so in good faith to prevent harm to himself or others?

In Terry v. Ohio, supra, the Supreme Court recognized that an officer who has lawfully stopped a person on the street for investigatory purposes may for his own safety conduct a limited search (denominated a "frisk”) if he reasonably suspects the person is armed and presently dangerous. Although the officer in that case limited his search to an external patting of the outer clothing until he felt weapons, the court outlined the permissible scope of a frisk in broader terms:

"* * * When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous [276]*276to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” 392 US at 24.
"* * * Thus [the frisk] must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby * * *.” 392 US at 26.

The court reiterated that "the central inquiry under the Fourth Amendment [is] the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” 392 US at 19. Therefore, an external pat down does not seem to be the constitutional limit where a greater intrusion is reasonable under the circumstances. See also State v. Ward, 16 Or App 556, 519 P2d 1269, rev den (1974).

Where a police officer has been put in a situation which requires quick action in order for the officer to protect himself or others from reasonably apprehended immediate danger, we have been careful to take into account those circumstances when reviewing his action. As we noted in a somewhat different context:

"The officers’ on-the-spot decision is of necessity a hasty judgment based upon the facts — or reasonably founded suspicion — of the moment. Severe judicial second-guessing is therefore inappropriate. The officer must be given a degree of latitude for good faith judgment as to any possible peril.” State v. Mitchell, 6 Or App 378, 386, 487 P2d 1156, 1160, rev den (1971).

See also State v. Riley, 240 Or 521, 402 P2d 741 (1965). In this case the officer had a reasonable suspicion that defendant had recently committed an armed robbery. When the officer attempted an external pat down, defendant did not cooperate, but instead obstructed access to the exterior of his left pocket, creating further suspicion that he might be armed and presently dangerous.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Davis
666 P.2d 802 (Oregon Supreme Court, 1983)
State v. Fairley
580 P.2d 179 (Oregon Supreme Court, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
576 P.2d 38, 33 Or. App. 271, 1978 Ore. App. LEXIS 3280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fairley-orctapp-1978.