State v. Marston

Court of Appeals of Oregon

State v. Marston

57 P.3d 210, 184 Or. App. 749, 2002 Ore. App. LEXIS 1737

CourtCourt of Appeals of Oregon

DecidedNovember 6, 2002

Docket00C46963; A113037

StatusPublished

This text of 57 P.3d 210 (State v. Marston) 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. Marston, 57 P.3d 210, 184 Or. App. 749, 2002 Ore. App. LEXIS 1737 (Or. Ct. App. 2002).

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Opinion

PER CURIAM

Defendant appeals from her judgment of convictions for delivery and possession of a controlled substance. ORS 475.992. She assigns error to the trial court’s denial of her motion to suppress evidence obtained pursuant to a warrant-less search of defendant following a traffic stop of the vehicle in which defendant was a passenger. At the suppression hearing, the police officer testified that, based on defendant’s behavior, he did not have any concern regarding his safety but nonetheless conducted a patdown for weapons. During that search the officer discovered the controlled substance.

On appeal defendant contends that the trial court erred in ruling that the officer was justified in searching defendant for officer-safety reasons and that the officer had subjective probable cause to believe that defendant committed a crime. The state concedes that the patdown search was not justified for officer safety reasons because the officer did not know specific facts creating a reasonable suspicion of an immediate threat of serious physical injury. State v. Walker, 181 Or App 548, 553, 47 P3d 65 (2002). The state also concedes that the officer’s testimony did not support a finding that the officer subjectively believed that defendant committed a crime. State v. Getzelman, 178 Or App 591, 595-97, 39 P3d 195, rev den, 334 Or 289 (2002).

We accept the state’s concessions. The trial court erred in denying the motion to suppress; we reverse the judgment and remand this case to the trial court for further proceedings.

Motion granted; reversed and remanded for further proceedings.

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PER CURIAM

Defendant appeals from her judgment of convictions for delivery and possession of a controlled substance. ORS 475.992. She assigns error to the trial court’s denial of her motion to suppress evidence obtained pursuant to a warrant-less search of defendant following a traffic stop of the vehicle in which defendant was a passenger. At the suppression hearing, the police officer testified that, based on defendant’s behavior, he did not have any concern regarding his safety but nonetheless conducted a patdown for weapons. During that search the officer discovered the controlled substance.

On appeal defendant contends that the trial court erred in ruling that the officer was justified in searching defendant for officer-safety reasons and that the officer had subjective probable cause to believe that defendant committed a crime. The state concedes that the patdown search was not justified for officer safety reasons because the officer did not know specific facts creating a reasonable suspicion of an immediate threat of serious physical injury. State v. Walker, 181 Or App 548, 553, 47 P3d 65 (2002). The state also concedes that the officer’s testimony did not support a finding that the officer subjectively believed that defendant committed a crime. State v. Getzelman, 178 Or App 591, 595-97, 39 P3d 195, rev den, 334 Or 289 (2002).

We accept the state’s concessions. The trial court erred in denying the motion to suppress; we reverse the judgment and remand this case to the trial court for further proceedings.

Motion granted; reversed and remanded for further proceedings.

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Bluebook (online)

57 P.3d 210, 184 Or. App. 749, 2002 Ore. App. LEXIS 1737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-marston-orctapp-2002.

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