State v. Gaylor

404 P.3d 1140, 287 Or. App. 495, 2017 Ore. App. LEXIS 1017
CourtCourt of Appeals of Oregon
DecidedAugust 30, 2017
Docket15CR02951; A159959
StatusPublished

This text of 404 P.3d 1140 (State v. Gaylor) 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. Gaylor, 404 P.3d 1140, 287 Or. App. 495, 2017 Ore. App. LEXIS 1017 (Or. Ct. App. 2017).

Opinion

L AGE SEN, J.

Defendant conditionally pleaded guilty to one count of unlawful possession of methamphetamine, ORS 475.894, reserving the right to appeal the trial court’s denial of his motion to suppress the evidence that he possessed the drug. On appeal, defendant argues that the trial court erred when it determined that the warrantless handcuffing and search of defendant that led to the discovery of the methamphetamine were justified under the “officer safety” exception to the warrant requirement of Article I, section 9, of the Oregon Constitution and that, as a result, defendant was not entitled to suppression of the evidence. We review to determine whether the trial court’s factual findings are supported by any evidence in the record, and whether the trial court correctly applied applicable principles of law, State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993), and reverse and remand.

The pertinent facts generally are not in dispute. Sergeant Jenkins was on afternoon patrol in west Salem when he observed a car parked in the driveway of a house that Jenkins knew was abandoned. Defendant and Glazebrook were in the car. Finding that suspicious, in part because of a burglary in the area 10 days earlier, Jenkins decided to investigate and “just see what was going on.” Jenkins pulled into the next driveway up the road and parked, letting dispatch know that he was “going to be out on a suspicious vehicle.” As he did that, he noticed in his side mirror that defendant and Glazebrook had gotten out of the car, and that defendant was walking along the road toward Jenkins’s car. Jenkins turned his car around and drove back to where the car was parked in the abandoned house’s driveway, and stopped his car in the road because there was no other place to pull over. In doing so, he passed defendant, who turned around and started walking back toward Jenkins. Defendant walked in the road itself, rather than along the shoulder.

Jenkins introduced himself to defendant and Glazebrook and asked them to remove their hands from their pockets and stand in a particular place. They complied. Jenkins asked them what was going on. They told him that the car had broken down, probably because of [498]*498transmission issues. Jenkins explained that he was contacting them because of a recent burglary in the area and asked for their identification. Glazebrook stated that he would give Jenkins his identification and began to “dig inside” the car. Glazebrook was “bent over into the vehicle” and Jenkins was unable to “see his hands or his upper body, or what he’s doing.” Meanwhile, defendant, using a “sharp” tone, inquired whether he was required to provide his identification to Jenkins, asking Jenkins whether he was suspected of a crime. Jenkins viewed defendant’s questions as a challenge and called for backup. He also decided to cite defendant for the violation of “unlawful [] placement of a pedestrian in the roadway,” which he believed defendant had committed by walking in the roadway, rather than on the shoulder. Jenkins explained to defendant that he had to provide his identification because Jenkins was citing him. Once Jenkins explained that he was citing defendant, defendant provided Jenkins with his identification.

During the exchange between Jenkins and defendant, Glazebrook climbed over a fence and started jogging away. Jenkins shouted “Hey,” Glazebrook responded “I’ll be right back,” and kept on jogging, disappearing from view. Jenkins did not think that Glazebrook would ever come back, but, because Jenkins did not know what Glazebrook’s intentions were in running away, he feared that Glazebrook might pose a risk to his safety.1

As soon as Glazebrook ran away, Jenkins decided to detain defendant. He did so because of defendant’s initial conduct of walking away from the car and then returning to it, because of defendant’s “challenging demeanor” in asking about whether he had to provide his identification and whether he was suspected of a crime, and because of Glazebrook’s flight. Jenkins was concerned that, if he simply cited defendant for the pedestrian violation that he had observed, defendant would leave the scene, meet up with Glazebrook, and come back and pose a threat to Jenkins. He directed defendant to put his hands behind his back. Defendant complied and Jenkins handcuffed him and conducted a patdown. During the patdown, Jenkins felt a long [499]*499cylinder in defendant’s left front pocket. Concerned that the cylinder “was a screwdriver or shank, some type of stabbing instrument,” Jenkins reached into defendant’s pocket to remove it because he thought it could be a risk to personal safety. That cylinder, as Jenkins discovered, was not a screwdriver or a shank, but a methamphetamine pipe. Defendant’s possession of that pipe, and the methamphetamine residue on it, led to the charge against him.

As noted, defendant moved to suppress the evidence of the methamphetamine pipe, arguing that it was the product of an unconstitutional warrantless seizure (the handcuffing) and two unconstitutional warrantless searches (the patdown and subsequent inspection of the contents of defendant’s pocket). The state asserted, and the trial court agreed, that the seizure and searches were justified by the officer safety exception to the warrant requirement. Defendant challenges that determination on appeal.

The officer safety exception to the warrant requirement of Article I, section 9, permits an officer to seize or search a person without a warrant if the officer subjectively believes that the person poses “an immediate threat of serious physical injury” to the officer or others present and that subjective belief is objectively reasonable under the totality of the circumstances known to the officer. State v. Kennedy, 284 Or App 268, 272-73, 392 P3d 382 (2017). “To be objectively reasonable, the officer’s safety concerns must be based on facts specific to the particular person searched [or seized], not on intuition or a generalized fear that the person may pose a threat to the officer’s safety.” State v. Smith, 277 Or App 298, 303, 373 P3d 1089, rev den, 360 Or 401 (2016) (internal quotation marks omitted).

Here, even if Jenkins had the requisite subjective belief that defendant posed an immediate threat of serious physical injury to Jenkins,2 that belief was not objectively reasonable. None of defendant’s conduct tended to suggest [500]*500that he posed a threat of harm to Jenkins. On the contrary, even though defendant used a “sharp” voice when asking whether he was required to provide his identification to Jenkins and whether he was suspected of a crime, defendant answered Jenkins’s questions and complied with all of Jenkins’s directives, and there is no other indication that Jenkins had any particularized reason to think that defendant posed an immediate risk of serious physical harm to Jenkins by the time he conducted the challenged seizure and searches, at which point Jenkins was aware that defendant had been cooperative with him.

Although each officer safety case necessarily must turn on its own facts, the circumstances in this case greatly resemble those in Kennedy, as defendant points out.

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Related

State v. Pope
946 P.2d 1157 (Court of Appeals of Oregon, 1998)
State v. Ehly
854 P.2d 421 (Oregon Supreme Court, 1993)
State v. Smith
373 P.3d 1089 (Court of Appeals of Oregon, 2016)
State v. Madden
390 P.3d 1087 (Court of Appeals of Oregon, 2017)
State v. Kennedy
392 P.3d 382 (Court of Appeals of Oregon, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
404 P.3d 1140, 287 Or. App. 495, 2017 Ore. App. LEXIS 1017, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gaylor-orctapp-2017.