State v. Bailey ( 2020 )

782
Argued and submitted December 6, 2018, reversed and remanded
December 9, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
XAVIER LEE BAILEY,
Defendant-Appellant.
Marion County Circuit Court
16CR74813; A164732
479 P3d 304
Defendant, who entered a conditional guilty plea for unlawful possession of
a firearm, ORS 166.250, appeals the trial court’s denial of his motion to suppress
evidence discovered in the course of an officer-safety search. On appeal, defen-
dant argues that the officers who searched him did not have a valid officer-safety
justification to do so in light of his cooperative and nonthreatening behavior. The
state contends that, under the totality of the circumstances, the officers’ subjec-
tive belief that defendant posed an immediate threat to their safety was objec-
tively reasonable. Held: The trial court erred in denying defendant’s motion to
suppress. Although defendant might have had a weapon that he wanted to keep
hidden, nothing about the circumstances made it objectively reasonable for the
officers to suspect that he might use it or otherwise cause them bodily harm.
Reversed and remanded.
David E Leith, Judge.
Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
Julia Glick, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before DeHoog, Presiding Judge, and DeVore, Judge, and
Aoyagi, Judge.*
DeHOOG, P. J.
Reversed and remanded.
______________
* DeVore, J., vice Hadlock, J. pro tempore.
Cite as 307 Or App 782 (2020) 783
DeHOOG, P. J.
Defendant entered a conditional guilty plea to
unlawful possession of a firearm, ORS 166.250, reserving his
right to appeal the trial court’s denial of his motion to sup-
press evidence discovered in the course of an officer-safety
search. On appeal, defendant contends that the officers who
patted him down for weapons did not have a valid officer-
safety justification to do so. Defendant does not dispute that
the officers subjectively believed that he posed a potential
threat to their safety, but he argues that their belief was not
objectively reasonable, particularly in light of his coopera-
tive and nonthreatening behavior throughout the encounter.
Defendant further argues that, even if he initially posed a
potential threat, by the time of the search any such threat
had dissipated because, by that time, he had been placed
in handcuffs and three officers were present. Considering,
as we must, the totality of the circumstances, we conclude
that the officers’ subjective suspicion that defendant both
was armed and posed an immediate threat at the time of
the patdown search was not objectively reasonable. Thus,
the trial court erred in concluding that the search was a
reasonable officer-safety measure. We therefore reverse and
remand for further proceedings.
“We review the denial of a motion to suppress for
legal error and are bound by the trial court’s explicit and
implicit factual findings if evidence in the record supports
them.” State v. Sarmento, 296 Or App 763, 765, 439 P3d 994
(2019). We state the facts in accordance with that standard.
After midnight, Salem police officers Chrowl and
Bratley responded to a noise complaint connected with a
house party near the end of a dead-end street, Suzanne
Lea Street. The officers initially spoke with the homeowner
at the front doorway. The officers caught a brief glimpse of
the party as the homeowner stepped outside to speak with
them. They saw “a crowd of individuals inside,” but they did
not note any specific individuals. The party was “dead quiet”
while the officers spoke with the homeowner, and they “heard
the distinct sound of a firearm being chambered or racked”
somewhere inside the house. In response, the officers moved
the conversation away from the front door. However, because
784 State v. Bailey
the homeowner agreed to keep the noise down, the officers
did not enter the home or take any further action at that
time.
Later that morning, at about 5:00 a.m., Officer
Chrowl returned to the area, this time in response to a
complaint that people connected with the house were yell-
ing in the yard and street. Upon his arrival, dispatch noti-
fied Chrowl that there had also been reports of gunshots
at the end of the same street. Chrowl stepped out of his
patrol car and saw someone—later identified as defendant—
walking away from Suzanne Lea Street. By that time,
Officer Singleton had arrived. The officers did not see any-
one else on the street and began to follow defendant in an
effort to speak with him. When defendant noticed the offi-
cers, he increased his pace and distance from them. In his
report of the incident, Chrowl described defendant’s gait and
subsequent behavior as “nonchalant.” Chrowl and Singleton
caught up with defendant shortly thereafter, when defen-
dant stopped in a nearby parking lot to speak with another
individual, Flowers, who had happened to be passing by on
a bicycle.
Chrowl called out to defendant and Flowers from
a distance of about 25 feet and asked them whether they
would be willing to speak with him. Both men turned
around, walked back towards Chrowl, and responded “Yeah.”
Flowers spoke first and asked Chrowl if he had heard the
gun shots. Chrowl explained that the shots were the reason
that he wanted to speak with them, and he asked whether
defendant had been at the party on Suzanne Lea Street.
Defendant told Chrowl that he had been at the party, but,
in response to further questioning, he said that he did not
think that he had been there when Chrowl stopped by to
address the noise complaint.
While defendant and Chrowl were speaking, a third
officer, Dowd, arrived on the scene. When Chrowl began to
explain the situation to Dowd, Dowd mentioned that some-
thing “just didn’t seem right” with defendant and noted “the
way [he was] standing.” Chrowl then observed that defen-
dant’s “arms were tucked in super tight; he wasn’t really
moving his arm from the elbow up, only the elbow down,
Cite as 307 Or App 782 (2020) 785
kind of like a hinge.” Chrowl also noticed “what looked like
a line” in the “upper pectoral area” of defendant’s jacket,
which, to Chrowl, “wasn’t natural, wasn’t normal looking.”
Chrowl thought that “it appeared something was either con-
cealed or inside [defendant’s] jacket or underneath” it.
Because they “were specifically concerned about
weapons[, and] firearms in particular,” Chrowl and Dowd
approached defendant and asked whether they could pat
him down. According to Chrowl, defendant “said something
to the effect of, ‘I don’t know why you need to,’ ” and, at that
point, the officers placed defendant in handcuffs and pat-
ted him down. During the patdown, Chrowl felt “an upside-
down L-shaped object” near defendant’s chest and thought
that what he felt was the handgrip of a firearm. Based on
that belief, Chrowl unzipped defendant’s jacket and seized
what was indeed a handgun.
The state subsequently charged defendant with the
offense of unlawful possession of a firearm, ORS 166.250.
Defendant moved to suppress all evidence of his possession
of the handgun, arguing, in part, that it had been discovered
in the course of an unconstitutional, warrantless search. At
the suppression hearing, Chrowl and Dowd both testified
that they had subjected defendant to a patdown search to
ensure their safety.1 When asked further about why he had
found it necessary to search defendant for weapons, Chrowl
testified that, when he asked for defendant’s consent to pat
him down, defendant had “started kind of leaning back
[and] looking away.” Chrowl construed those as “signs [that
defendant] didn’t want to be there; he was wanting to leave
at that point, especially when we started asking for consent
to pat down.” Those circumstances caused Chrowl to ques-
tion “whether he was trying to flight or fight at that point.”
1
Chrowl’s testimony was somewhat equivocal as to whether he had also
suspected defendant of criminal activity prior to the patdown. Dowd similarly
alluded to having suspected defendant of unlawfully concealing a firearm or hav-
ing unlawfully used a firearm earlier that morning. However, although the trial
court asked questions regarding the specific crimes that Chrowl had suspected,
the court appears ultimately to have relied exclusively on the officer-safety doc-
trine in its ruling, and the state defends the court’s ruling solely on that basis;
accordingly, we consider only that potential justification for the warrantless
search that occurred.
786 State v. Bailey
Later in the hearing, in response to the trial court’s ques-
tion as to what specific crimes he had suspected, Chrowl
reiterated, “He was giving the stance that he was wanting
to flight [sic], could be concealing something dangerous or
deadly.”
Dowd’s testimony was similar to Chrowl’s, though,
as noted, he testified to having also suspected defendant of
committing the crimes of “concealing a firearm” and unlaw-
ful use of a weapon. As to his safety concerns, Dowd observed
that, upon being asked to consent to a patdown search,
defendant “turned his body away from Officer Chrowl and
started to step back, like he was trying to distance him-
self from Officer Chrowl as he was verbally objecting to a
pat down.” Dowd explained that he “didn’t want a gun to
produce itself and become a deadly force encounter with”
defendant.
At the conclusion of the suppression hearing, the
trial court denied defendant’s motion, explaining its view
that “the danger of serious physical injury was clear enough”
and that it “would be out of bounds to second guess an offi-
cer’s” judgment under the circumstances. The court then
summarized the circumstances as it saw them, beginning
with those that factored little if at all in its analysis. First,
the court noted that the fact that officers had heard a gun
being “racked and chambered” during an earlier encounter
at the same location did not weigh heavily into the analysis;
that, the court explained, was because any inference that
defendant was carrying the same gun would be a “weak
one.” Second, the court reasoned that defendant’s asser-
tion of his right to withhold consent could play no role in its
analysis. Finally, as to the perception that defendant might
have been preparing to flee, the court stated without fur-
ther elaboration that it was not a prominent factor in its
analysis.
Turning to the facts that it considered significant
to its analysis, the trial court summarized those to be “that
[defendant] was coming from the location where gunfire had
recently been heard; his stance, where he appeared to be
holding something under his upper arms, and in fact the
officers could see in the jacket the outline of something
Cite as 307 Or App 782 (2020) 787
consistent with a weapon.”2 In light of those facts, the trial
court concluded that
“[t]he officers reasonabl[y] suspected that they needed to
take some action to protect their safety, and also out of sus-
picion that that was, in fact, a concealed weapon. So there
was a reasonable suspicion to support the brief stop and
pat down to determine whether there was a weapon in that
location, and it turned out there was.”
On appeal, the parties agree that the only issue
before us is whether the officer-safety doctrine justified the
warrantless search. That is, defendant does not challenge the
lawfulness of the officers’ conduct leading up to the search,
and, although Dowd testified that he suspected defendant of
various weapons-related offenses, the state does not reprise
the argument it made to the trial court that defendant had
been lawfully detained based on reasonable suspicion of a
crime.3 As to the officer-safety justification for the patdown
search, defendant argues that the requirements of that
exception to the warrant requirement, as articulated by the
Supreme Court in State v. Bates 304 Or 519, 524, 747 P2d
991 (1987), were not satisfied here. Specifically, defendant
argues that, under the Bates standard, the officers’ subjec-
tive belief that he posed a threat of serious bodily harm to
them was not objectively reasonable.
Defendant argues in the alternative that, even if
the officers’ belief was objectively reasonable at some point
earlier in the encounter, it was no longer reasonable at the
time of the patdown search, by which time defendant was
2
As outlined above, Chrowl testified that he saw an unnatural line in defen-
dant’s jacket in his upper-chest area; Chrowl also explained that the line caused
it to appear as though there was “some kind of object in there,” as the rest of
defendant’s jacket did not have such lines. Chrowl did not, however, describe
what he perceived as “consistent with a weapon.” Rather, that appears to be an
inference that the trial court drew.
3
In limiting the argument in that fashion, the parties do not discuss whether
defendant was legally stopped prior to the patdown search or whether a legal
stop must precede a warrantless search for officer-safety reasons. Accordingly,
we express no view on those issues. See State v. Bates, 304 Or 519, 524, 747 P2d
991 (1987) (explaining that the officer-safety doctrine applies when certain cir-
cumstances arise “during the course of a lawful encounter with a citizen”); but see
State v. Meeker, 293 Or App 82, 85-86, 427 P3d 1114 (2018) (declining to “resolve
the parties’ dispute regarding the applicability of the officer safety doctrine to
mere conversation encounters”).
788 State v. Bailey
in handcuffs and a total of three officers were present. See
State v. Kennedy, 284 Or App 268, 272, 392 P3d 382 (2017)
(“Determining whether an officer’s safety concern was objec-
tively reasonable requires us to consider the totality of the
circumstances as they reasonably appeared to the officer at
the time of the warrantless search.”).
Contending that an officer’s assessment of safety
risks is entitled to considerable deference, the state responds
that, under the totality of the circumstances, the officer-
safety doctrine justified a patdown; that is, the officers’ belief
that defendant posed a threat to them was objectively rea-
sonable. As to defendant’s argument regarding the officers’
belief at the specific moment of the patdown, the state con-
tends that measures taken to effectuate a lawful patdown
search—such as flanking a suspect and placing him or her
in handcuffs—play no role in our assessment of whether a
patdown was justified in the first place. And, to the extent
that defendant argues that the manner in which the officers
conducted the patdown was itself unreasonable, the state
argues that defendant did not preserve that argument. We
turn to those arguments.
We start with a review of the applicable legal stan-
dards. Article I, section 9, of the Oregon Constitution rec-
ognizes a citizen’s right “to be secure in their persons * * *
against unreasonable search, or seizure.” To that end, war-
rantless searches are presumed to be unreasonable and
must be justified by a recognized exception to the warrant
requirement. See State v. Bliss, 363 Or 426, 430, 423 P3d
53 (2018) (“[W]arrantless searches are per se unreasonable
unless they fall within one of the few specifically estab-
lished and limited exceptions to the warrant requirement.”).
In Bates, 304 Or at 524, the Supreme Court explained how
officer-safety searches such as the patdown in this case can
fall within such an exception:
“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.”
Cite as 307 Or App 782 (2020) 789
“[U]nder the officer-safety doctrine, the state bears
a two-part burden of proof and persuasion” to justify a war-
rantless search. State v. Ramirez, 305 Or App 195, 205,
468 P3d 1006 (2020). First, the state must prove that an
officer “had subjective reasonable suspicion” that the per-
son searched posed an immediate threat of serious phys-
ical injury. Id. Second, the state must prove that, “under
the totality of the circumstances, (1) the officer’s subjective
safety concerns of an immediate threat of serious physi-
cal injury were objectively reasonable, and * * * (2) the offi-
cer’s response to the safety concerns was, itself, objectively
reasonable.” Id. As the Supreme Court has explained, the
officer-safety doctrine requires the state to prove only “that
the choice of protective measures actually made [was] rea-
sonable, even if other choices also would have been reason-
able.” State v. Madden, 363 Or 703, 714, 427 P3d 157 (2018)
(internal quotation marks and brackets omitted).
The officer-safety doctrine requires a careful bal-
ance of “the individual’s constitutional right to security in
his or her person and an officer’s right to take reasonable
safety measures.” State v. Davis, 282 Or App 660, 667, 385
P3d 1253 (2016). We recognize that police officers “in the
field frequently must make life-or-death decisions in a mat-
ter of seconds,” and “[a]n officer must be allowed considerable
latitude to take safety precautions in such situations.” Bates,
304 Or at 524; see also State v. Rudder, 347 Or 14, 22, 217 P3d
1064 (2009) (“[P]olice officers must be allowed considerable
latitude to take protective measures when they reasonably
feel threatened.” (Internal quotation marks omitted.)); State
v. Wilson, 283 Or App 823, 828-29, 390 P3d 1114, rev den,
361 Or 801 (2017) (same). To that end, “ ‘it is not our function
to uncharitably second-guess an officer’s judgment.’ ” Wilson,
283 Or App at 829 (quoting Bates, 304 Or at 524 (emphasis
added)). Nonetheless, we must bear in mind that “[t]he ‘con-
cept of reasonableness in this context is not biased in favor
of the concerns of the police.’ ” Ramirez, 305 Or App at 206(quoting Rudder, 347 Or at 23). And, to maintain a proper
balance, we evaluate an officer’s expressed safety concerns
through an objective lens, requiring reasonable suspicion to
be “based on facts specific to the particular person searched,
not on intuition or a generalized fear that the person may
790 State v. Bailey
pose a threat to the officer’s safety.” Kennedy, 284 Or App
at 273 (internal quotation marks omitted). We proceed with
that balance in mind.
We address defendant’s secondary argument first
because it serves to sharpen our focus on the appropriate
time frame. As noted, defendant emphasizes that the rele-
vant time in assessing the objective reasonableness of the
officers’ safety concerns is “at the time” of the search. See,
e.g., Kennedy, 284 Or App at 272 (discussing that we consider
the circumstances “at the time of the warrantless search”);
see also State v. Jackson, 190 Or App 194, 199, 78 P3d 584
(2003), rev den, 337 Or 182 (2004) (considering the circum-
stances officers faced “at the time of the patdown”). And,
defendant argues, “at the time” that the officers searched
him, he could not reasonably have been considered a poten-
tial threat, because he was both handcuffed and outnum-
bered, with two officers flanking him and a third standing
by.
In our view, defendant’s focus on the instant that
the officers carried out the patdown is too narrow. As Bates
and subsequent decisions have held, we must assess the cir-
cumstances as they appeared to the officers at the time that
the decision was made to take safety precautions. See Bates,
304 Or at 525 (limiting reasonableness inquiry to the “cir-
cumstances as they reasonably appeared at the time that
the decision was made”); see also State v. Jimenez, 357 Or
417, 423, 353 P3d 1227 (2015) (quoting Bates); State v. Foster,
347 Or 1, 8, 217 P3d 168 (2009) (same); State v. Ehly, 317
Or 66, 82, 854 P2d 421 (1993) (same); State v. Lee, 264 Or
App 350, 354, 332 P3d 894 (2014) (same); State v. Amell, 230
Or App 336, 340, 215 P3d 910 (2009) (same). Thus, as the
state contends, safety measures taken by officers in effectu-
ating a patdown are not part of the totality of the circum-
stances for purposes of assessing the reasonableness of the
officers’ safety concerns; rather, they are part of the search
itself.
In light of that case law, we look to the totality of
the circumstances at the time that the officers decided to
search defendant. Here, because defendant does not appear
to dispute that the officers handcuffed and flanked him
Cite as 307 Or App 782 (2020) 791
after deciding to pat him down, we view those actions as pre-
cautions taken to ensure that the patdown itself proceeded
safely, and not as circumstances that could have alleviated
the need for an officer-safety search altogether.4 Thus, we
turn our focus to the subject of defendant’s primary argu-
ment, namely, whether, at the time that they decided to
conduct a patdown search, it was objectively reasonable for
the officers to suspect that defendant posed an immediate
threat of serious physical injury.
In arguing that the officers’ subjective safety con-
cerns were not objectively reasonable, defendant acknowl-
edges that we must base our assessment of an officer’s
belief on the totality of the circumstances, and not on iso-
lated factors that may be present. Nonetheless, he contends
that some factors are entitled to more weight than others,
arguing that the “most important factor in an officer-safety
determination is the defendant’s conduct.” In support of
that view, defendant observes that “Oregon appellate courts
have repeatedly repudiated officer-safety searches when
the defendant was cooperative and displayed no aggressive
or threatening behavior.” According to defendant, Oregon
courts consistently reach the same conclusion even when a
person possesses a weapon, so long as the person’s behavior
does not suggest that he or she is armed and dangerous.
To defendant, then, the behavior he exhibited during
the police encounter is necessarily dispositive. According to
defendant, he “never acted in an aggressive or threatening
manner and never displayed any signs of agitation or hos-
tility.” Rather, he was cooperative and complied with all of
the officers’ requests. Defendant adds that the officers knew
nothing about his background that might have suggested to
them that he presented a threat to their safety.5 Therefore,
4
We reject without discussion any intended argument that the search itself
was not carried out in a reasonable manner. Cf. City of Portland v. Weigel, 276 Or
App 342, 345-46, 367 P3d 541 (2016) (handcuffing the defendant was reasonable
because, in part, he had access to a firearm that was “capable of inflicting serious
bodily injury”). Accordingly, we need not belabor whether any such argument is
preserved.
5
Chrowl testified that he recognized defendant’s face after catching up with
him, but he did not purport to associate defendant with any particular history or
circumstances that might have contributed to Chrowl’s officer-safety concerns.
792 State v. Bailey
defendant concludes, any belief on the part of the officers
that he posed an immediate threat of serious injury cannot
be considered objectively reasonable.
For its part, the state does not dispute defendant’s
characterization of his own conduct as compliant and coop-
erative. The state emphasizes, however, our obligation to
consider the totality of the circumstances, and argues that
defendant’s behavior is just one factor in the analysis; here,
the state asserts, defendant’s behavior “did not dispel the
officers’ reasonable suspicion of a safety threat.”
As the Supreme Court has explained, a “defendant’s
attitude and demeanor are just two circumstances that the
officers and, ultimately, [the] court must consider in deter-
mining whether the totality of the circumstances justified
the decision to engage in a precautionary patdown.” State v.
Miglavs, 337 Or 1, 11-12, 90 P3d 607 (2004). And, as we have
observed, those two factors “are by no means dispositive.”
Kennedy, 284 Or App at 274. Thus, contrary to defendant’s
suggestion, the fact that he was not overtly threatening or
uncooperative does not control here.
Having said that, we recognize that a defendant’s
compliant behavior may play a significant role in our deter-
mination of whether officer-safety concerns justify a search.
In Kennedy, for example, where we concluded that a patdown
for officer-safety reasons was not justified, we reasoned, in
part, that the defendant’s compliant behavior and lack of
aggressive behavior were “significant factors * * *, particu-
larly given the absence of any information that defendant
had engaged in earlier acts of violence.” Id. Similarly, we
have explained that, “where a defendant cooperates with
police, in the absence of any threatening behavior by the
defendant, generalized safety concerns (in other words, facts
that are not particular to the defendant) are insufficient to
justify an officer safety search.” State v. Smith, 277 Or App
298, 305, 373 P3d 1089, rev den, 360 Or 401 (2016). However,
although such decisions recognize that a defendant’s behav-
ior may be significant to our analysis, they consistently
weigh that factor in the context of any other circumstances
present or facts that an officer may have known about the
person at the time.
Cite as 307 Or App 782 (2020) 793
Here, defendant’s compliant and nonthreatening
demeanor was only one of the particularized facts and cir-
cumstances relevant to the officers’ assessment of whether
he posed a threat. The state points to additional pertinent
facts, including that: (1) defendant was the only person seen
walking away from a location where officers had heard a
gun being “chambered or racked” in their presence earlier
that morning; (2) he was walking away from that location
moments after gunshots were reportedly heard in the area;
(3) defendant increased his pace when he noticed the offi-
cers following him; (4) defendant confirmed having been at
the house party shortly before the police encountered him;
(5) defendant stood in an unnatural way with his upper
arms held close to his sides, which, coupled with a noticeable
line in his jacket, gave the officers the impression that he
might be concealing a weapon; and (6) defendant exhibited
somewhat of a fight or flight response when he was asked
whether he would consent to a patdown search.
We largely agree with the trial court’s assessment
of those facts, but we draw from them a different conclusion.
As the trial court apparently recognized, there was little or
nothing to connect any firearm that defendant might pos-
sess with the firearm that Chrowl had heard being “racked”
in his presence hours earlier that morning; to draw from
that already tenuous link the further inference that defen-
dant might bear some degree of hostility towards the police
would be wholly speculative. Furthermore, the trial court
correctly acknowledged that defendant’s exercise of his
right to refuse consent could play no role in its assessment
whether the officers’ perception of a threat was objectively
reasonable.6
That leaves the following circumstances: Defendant
was seen leaving the general area where shots had recently
6
To the extent that defendant may have been exercising his right to deny
consent to a warrantless search, we agree that his reluctance to give that consent
could not have provided objective support for the officers’ belief that he posed
a threat to them. See State v. Banks, 364 Or 332, 337, 434 P3d 361 (2019) (dis-
cussing the “voluntary consent to search” exception to the warrant requirement
of Article I, section 9). We similarly attach no significance to any disinterest in
speaking with the police that defendant may have exhibited when he “noncha-
lant[ly]” picked up his pace upon Chrowl’s arrival.
794 State v. Bailey
been fired, he appeared as though he could be hiding a
weapon under one of his arms within his jacket,7 and,
although defendant was compliant and nonthreatening
throughout the encounter, when asked for his consent to a
search, he appeared to Chrowl to be “wanting to flight [sic],”
and, according to Dowd, had “started to step back, like he
was trying to distance himself from Officer Chrowl as he
was verbally objecting to a pat down.” We appreciate Dowd’s
rationale that he and the other officers “didn’t want a gun
to produce itself and become a deadly force encounter with”
defendant, and the trial court’s reluctance to second guess
that judgment is understandable. Our task, however, is to
determine whether the officers’ suspicion that defendant
presented that sort of threat was objectively reasonable
under the totality of the circumstances, including defen-
dant’s compliant demeanor. We conclude that it was not.
In reaching that conclusion, we assume without
deciding that it was objectively reasonable for the officers
to suspect that defendant had a weapon hidden under his
jacket. The question here, however, is whether what might
support reasonable suspicion of unlawful possession of a
weapon—which would not itself be sufficient to justify a
warrantless search—is sufficient to justify an officer-safety
search when accompanied by the other circumstances pres-
ent here. Stated slightly differently, given that the mere fact
that a person possesses a weapon does not, per se, render
officer-safety concerns objectively reasonable, do the circum-
stances under which defendant was suspected of possessing
a weapon in this case reasonably support the officers’ sus-
picion that defendant represented an immediate threat of
serious bodily injury?
Again, those circumstances are that defendant had
recently been in the general area where shots had been fired,
and, it seems, he preferred to end a voluntary conversation
7
We note that the trial court appears to have understood the officers to have
testified that they “could see in [defendant’s] jacket the outline of something con-
sistent with a weapon.” (Emphases added.) Our review of the record indicates
that, although the officers saw an unnatural “line” in defendant’s jacket that they
were concerned could be a weapon, they neither described an “outline” nor said
it was “consistent” with anything. Ultimately, however, that distinction does not
affect the outcome of this case.
Cite as 307 Or App 782 (2020) 795
with Chrowl over remaining and being subjected to a war-
rantless search. Like the firearm Chrowl heard being racked
much earlier that morning, nothing connected defendant
with the shots heard being fired, much less suggested that
he was the shooter. Moreover, because defendant was not
under arrest or any other obligation to remain with Chrowl,
there was no reason to suspect that he might resort to vio-
lence to effect a departure, especially in light of his cooper-
ative demeanor up to that point. Thus, even if the officers
correctly perceived that defendant wanted to depart, there
was no reason for the officers to suspect that his desire to
leave put them in harm’s way.8
In light of those circumstances, the officers’ sub-
jective suspicion that defendant presented an immediate
threat of serious bodily injury was not objectively reason-
able. That is, even though defendant seemed as though he
might have a weapon that he wanted to keep hidden and was
contemplating breaking off the police encounter, nothing
about the circumstances made it objectively reasonable for
Chrowl or the other officers to suspect that he might cause
them bodily harm to achieve those objectives. And, although
the fact that defendant had come from an area where gun-
shots were heard may have contributed to the officers’ sus-
picion that defendant possessed a weapon, the state has not
identified any way in which that fact would, in this case,
further support the suspicion that defendant represented a
threat to anyone. As a result, the trial court erred in deny-
ing defendant’s motion to suppress evidence resulting from
the warrantless patdown search.
Reversed and remanded.
8
Although Chrowl testified to having been uncertain whether defendant was
trying to “flight” or fight at that point, it is evident from the balance of both offi-
cers’ testimony that, despite Chrowl’s recitation of a familiar phrase, the officers
suspected that he might try to leave the area, not that he was contemplating an
imminent attack.