State v. Lumpkin

880 P.2d 468, 129 Or. App. 601, 1994 Ore. App. LEXIS 1308

• Court: Court of Appeals of Oregon
• Decided: August 24, 1994
• Docket: 91CR0280ST; CA A72934
• Status: Published

Opinions

DEITS, J.

Defendant appeals his conviction, on stipulated facts, for possession of a controlled substance. ORS 475.992-(4)(b). He assigns error to the trial court’s denial of his motion to suppress evidence seized from his person and his vehicle. We affirm.

On the morning of April 24, 1991, Officer Ludwig responded to a report that a person matching defendant’s description was attempting to break into a car parked near an elementary school. Ludwig confronted defendant, who was confused and distracted. His eyes darted from side to side as Ludwig asked him questions about why he had approached the car. He paced around and moved his hands and body in an agitated manner. When defendant was asked for identification, his answers were initially incoherent and nonrespon-sive; however, he eventually communicated his identity by producing a citation that he had received following a car accident several hours earlier. Because Ludwig’s observations of defendant caused him to be concerned that defendant would attempt to flee or fight before the initial inquiry was completed, Ludwig asked defendant to place his upper body and hands on the trunk of the patrol car. Ludwig suspected that defendant might be under the influence of controlled substances, but he did not intend to search defendant at that time and did not place him under arrest.

While in this position, defendant continued to act “fidgety.” On two occasions during the questioning, defendant stiffened his arms, arched his back, lifted his torso from the trunk, and placed his hands toward his body out of Ludwig’s view, contrary to Ludwig’s express instructions. Concerned that defendant might have been reaching for a weapon, Ludwig did a cursory pat of defendant’s waist area and then patted the front of his jacket. He felt no bulky item but was concerned that a soft bulge that he felt in a breast pocket might contain a razor blade or a fish hook. Ludwig reached into the pocket to remove the item, which was a small orange and black nylon pouch in which he could see the edge of a clear plastic baggie. Recognizing the clear baggie as a common means of packaging controlled substances, Ludwig removed the clear baggie from the pouch and saw that it contained a white powdery residue. Ludwig arrested defendant for possession of a controlled substance and conducted a search for more controlled substances. He found $258 in defendant’s wallet and another baggie with white powder residue in defendant’s pants pocket.

After he was taken to the police station for booking, defendant continued to deny any attempt to steal the car.¹ He said that he had wrecked his own car several hours earlier, while he was high, and that he had been on his way to the towing company to retrieve his car and drive home to California. Defendant then consented to Ludwig’s request to search the car at the towing company. During that search, Ludwig discovered and seized more controlled substances.

Defendant filed a motion to suppress the seized evidence. The trial court granted the motion in part, suppressing statements made by the defendant after the nylon pouch was found and additional evidence seized by Ludwig at the police station. Defendant appeals that part of the order allowing the use of the evidence seized during the frisk, the search of his person and the later search of his car.

1. Defendant does not challenge the validity of the initial stop.² He first argues that the officer lacked a reasonable basis for asking him to place his upper body and hands on the trunk of the police car. We are bound by the trial court’s findings of fact on this issue, which are supported by evidence in the record. State v. Miller, 300 Or 203, 227, 709 P2d 225 (1985). The court found that

“[t]he Defendant’s eyes darted around from side to side. The Defendant fidgeted his feet. He paced around and he appeared agitated. * * * The officer testified that based upon his experience these symptoms were precursors to a suspect fleeing.”

Because Ludwig reasonably believed that defendant might flee during the inquiry, his request that defendant place his hands and upper body on the trunk was permissible. See State v. Hasan, 93 Or App 142, 760 P2d 1377 (1988).

Defendant next argues that the frisk for weapons was not justified under ORS 131.625. ORS 131.625(1), which is part of Oregon’s ‘ ‘stop and frisk’ ’ law, allows a peace officer to conduct an external patting of a stopped person’s outer clothing “if the officer reasonably suspects that the person is armed and presently dangerous.” See ORS 131.605(2). “Reasonably suspects” means that the officer “holds a belief that is reasonable under the totality of the circumstances existing at the time and place the peace officer acts.” ORS 131.605(4). An officer’s generalized concern for safety is not sufficient to justify a frisk. Rather, the officer must articulate particularized facts creating a reasonable suspicion that the stopped person poses an immediate threat. State v. Matthys, 106 Or App 276, 282, 808 P2d 94 (1990), rev den 311 Or 433 (1991).

At the suppression hearing, Officer Ludwig identified such particularized facts. He testified that he thought that defendant was about to run away from him or was possibly going to fight with him.³ He stated that “there was a strong likelihood” that defendant was under the influence of controlled substances. He also testified that, despite his instructions to defendant to keep his arms spread on the trunk of the car, defendant twice pulled his arms and hands toward his midsection and out of Ludwig’s view. Ludwig stated that these actions led him to believe that defendant possibly was reaching for a weapon. We conclude that Ludwig’s belief that defendant was armed and posed an immediate threat to his safety was reasonable under the totality of the circumstances and that he was justified in frisking defendant. The trial court did not err in finding that the frisk was authorized.

Defendant next argues that even if the frisk was justified, the officer exceeded the permissible scope of the frisk. The pertinent statute is ORS 131.625(2), which provides:

“If, in the course of the frisk, the peace officer feels an object which the peace officer reasonably suspects is a dangerous or deadly weapon, the peace officer may take such action as is reasonably necessary to take possession of the weapon.”

Defendant contends that the statute did not authorize Ludwig to take possession of the object that he felt in defendant’s pocket because Ludwig did not testify that he reasonably suspected that what he felt, a “soft bulge,” was itself a weapon. The state, on the other hand, argues that the statute should be read to allow the removal of an item felt during an authorized frisk if an officer reasonably suspects, based on specific and articulable facts, that the object contains a dangerous or deadly weapon.

When interpreting a statute, we first look to its text and context. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993). Because either reading of the statute is plausible here, we look to the legislative history to inform our inquiry of the legislative intent. PGE v. Bureau of Labor and Industries, supra, 317 Or at 611-12. The legislative purpose in enacting the stop and frisk statutes was to codify some of the principles set out by the United States Supreme Court in Terry v. Ohio, 393 US 1, 88 S Ct 1868,20 L Ed 2d 889 (1968). State v. Davis, 295 Or 227, 240 n 17, 666 P2d 802 (1983); see also State v. Valdez, 277 Or 621, 625, 561 P2d 1006 (1977). The Court in Terry held that an officer who reasonably believes that a lawfully stopped person is armed and dangerous may frisk the person to the extent necessary to discover weapons. The Court emphasized that “reasonableness in all circumstances” is the central inquiry when evaluating the constitutionality of a search. Terry v. Ohio, supra, 392 US at 26. In view of the legislative purpose to codify, at least in part, the principles of Terry, we conclude that if an officer has a reasonable suspicion, based on specific and articulable facts, that an object felt during a frisk contains a dangerous or deadly weapon, the statute allows the officer to take reasonable steps necessary to take possession of the object.⁴

Further, although not directly applicable, our reading of the statute is consistent with decisions regarding permissible police action under analogous circumstances. In State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987), the Supreme Court analyzed the issue of officer safety under the Oregon Constitution and concluded that

“Article I, section 9, of the Oregon Constitution does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present.” (Emphasis supplied.)

Accordingly, if an officer is engaged in a lawful encounter with a citizen and develops a reasonable suspicion that the person is potentially dangerous, our review of the officer’s actions focuses on whether the safety precautions taken were “reasonable under the circumstances as they reasonably appeared at the time.” State v. Bates, supra, 304 Or at 525. We see no reason why the same analysis should not be applied when an officer is engaged in a lawful stop of a citizen under ORS 131.615(2).

Similarly, in reviewing the propriety of a search incident to arrest conducted for the arresting officer’s safety, we focus on the reasonableness of the officer’s actions in the light of the circumstances. In State v. Baker, 100 Or App 31, 34, 784 P2d 446 (1989), a search of the defendant’s pocket for the purpose of ensuring officer safety was held to be unreasonable because the circumstances did not suggest that the defendant might be carrying a dangerous weapon that the officer could not detect by a patdown. The arresting officer knew that the defendant had several recent citations and arrests, none of which involved violence, and the defendant cooperated with the officer throughout the arrest and search. We concluded that the trial court erred in failing to suppress the contents of the defendant’s pocket. In State v. Boyd, 101 Or App 649, 653, 792 P2d 462 (1990), we applied a similar analysis and concluded that where the arresting officer was not concerned for her safety and did not feel threatened when she felt what she believed to be a metal snuff box in the defendant’s pocket, she had no legitimate reason to reach into or remove anything from the pocket. Our reading of the frisk statute comports with this analysis of officer conduct.⁵

Under defendant’s reading of the statute, even if an officer reasonably suspects that a stopped person is armed with a dangerous or deadly weapon and reasonably suspects that an object felt during a frisk contains a dangerous or deadly weapon, the officer may take no action for self-protection. If we were to read ORS 131.625(2) in the restrictive manner urged by defendant, police officers would be allowed to take reasonable steps to protect themselves in the course of any lawful encounter with a citizen except when that encounter was a stop under ORS 131.615(1). We do not believe that the language of the statute requires such a result or that the legislature intended such a result.⁶

The critical questions here, then, are whether Ludwig had a reasonable suspicion that the object that he felt contained a dangerous or deadly weapon and, if so, whether the steps taken were reasonably necessary to take possession of the object. As noted above, a reasonable suspicion is a belief “that is reasonable under the totality of the circumstances existing at the time and place the peace officer acts.” ORS 131.605(4). Ludwig testified that, based on his training and experience, persons encountered in police stops use small items, such as fish hooks or razor blades, as weapons. He further testified that, in previous pat-down searches, he had found items in “soft pack type containers” that could be used as weapons. He stated that after he instructed defendant to keep his upper body and hands on the trunk of the police car, defendant twice pulled his hands in toward his midsection, where the pocket in which Ludwig felt the soft bulge was located. Finally, he testified that when he felt the container in defendant’s pocket, he was concerned that it contained a weapon.⁷

Under the totality of the circumstances, including defendant’s specific actions and Ludwig’s subjective belief and specific concerns based on his tr¿ining and experience, Ludwig reasonably suspected that the object that he felt during the frisk contained a weapon, and that his removal of the pouch from defendant’s pocket was reasonably necessary. The subsequent searches of defendant’s person and vehicle thus were valid, and the trial court did not err in denying part of defendant’s motion to suppress.

Affirmed.

1 The record is not clear as to when defendant was charged with attempted unauthorized use of a vehicle. ORS 164.135. That charge was later dismissed.

2 ORS 131.615(1) provides:

“A peace officer who reasonably suspects that a person has committed a crime may stop the person and, after informing the person that he is a peace officer, make a reasonable inquiry.”

3 Officer Ludwig testified:

“It’s hard for me to tell whether those motions he was making were actually precursors to someone fleeing or fighting. So I made no distinction. Either one would be bad for me in this case.”

4 Defendant does not argue on appeal that Ludwig lacked authority to open the nylon pouch after removing it from the pocket.

5 The dissent criticizes us for failing to cite or distinguish State v. RogueEscamilla, 106 Or App 270,806 P2d 1173 (1991), in which this court suppressed the contents of a wallet removed from the defendant’s pocket after a pat-down for weapons. That case, however, has no relevance to the present one. The defendant there did not question the arresting officer’s authority to seize the wallet from the pocket. As the dissent correctly explains, we held only that, absent some reasonable basis to believe that the wallet contained a weapon, the officer had no justification to search it. 106 Or App at 275. The question of whether Ludwig was justified in opening the pouch once he removed it from defendant’s pocket is not before us.

6 The dissent asserts that we are ignoring the plain language of ORS 131.625(2). However, interestingly, the dissent also finds it necessary to construe the statute’s language and depart from the exact language of the statute. The dissent begins by saying that the statutory language authorizing an officer to remove an object that he or she reasonably suspects “is” a dangerous or deadly weapon also authorizes the officer to remove containers that ordinarily carry such weapons and that are not empty. The dissent then goes a step further to say that the statute might justify a seizure of a “nondescript pouch, bottle or can that an officer feels during a frisk.” 129 Or App at 618. The dissent thus appears to find less fault with our analysis of the law than with our application of the law to the particular facts.

7 Ludwig testified as follows:

“[Prosecutor] Did you feel any bulky items [when you conducted the pat-down of defendant]?

“[Ludwig] No, I didn’t; other than ahaggie or some sort of a container in his coat pocket.

“Q Did you have any concerns that that may contain some weapon?

“A I did.”