State v. Sheely , 217 Or. App. 152 ( 2007 )

174 P.3d 1076 (2007) 217 Or. App. 152

STATE of Oregon, Plaintiff-Respondent,
v.
Brian Ray SHEELY, Defendant-Appellant.

D053273M; A131060.

Court of Appeals of Oregon.

Submitted on Record and Briefs November 2, 2007. Filed December 19, 2007.

Garrett A. Richardson filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jamie K. Contreras, Assistant Attorney General, filed the brief for respondent.

Before EDMONDS, Presiding Judge, and WOLLHEIM and SERCOMBE, Judges.

PER CURIAM.

Defendant appeals a judgment of conviction for felon in possession of a restricted weapon, ORS 166.270(2), and assigns error to the trial court's denial of his motion to suppress evidence discovered during a warrantless search of his folding pocketknife. The state concedes that, under State v. Dickerson, 135 Or.App. 192, 195-96, 898 P.2d 193 (1995), the opening of a closed pocketknife constitutes a search under Article I, section 9, of the Oregon Constitution, where nothing about the exterior of the knife indicates that the knife is not of a type that can be legally possessed. The state further concedes that the trial court erred in denying the motion to suppress because the record contains no evidence that the officer had probable cause to believe that defendant possessed a restricted weapon when the officer seized defendant's knife from the outside of his pants pocket and opened it. We agree with the state and accept its concessions.

Reversed and remanded.