State v. South ( 2019 )

183
Argued and submitted February 21, 2018, affirmed October 16, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
JASON M. SOUTH,
aka Jason Michael South,
Defendant-Appellant.
Multnomah County Circuit Court
16CR30364; A163153
453 P3d 592
Defendant appeals from a judgment of conviction for unlawful possession of
methamphetamine, ORS 475.894(1). He assigns error to the trial court’s denial of
his motion to suppress and argues that the stopping deputy unlawfully extended
the traffic stop by (1) inquiring into the presence of weapons and (2) requesting
consent to search defendant’s vehicle. The state argues that the deputy’s ques-
tions were justified by officer safety concerns. Held: The trial court did not err.
The deputy articulated “circumstance-specific” concerns for his safety and his
decisions to inquire into the presence of weapons and request consent to search
were “objectively reasonable.” Therefore, because both inquiries were justified by
officer-safety concerns, the deputy did not unlawfully extend the stop.
Affirmed.
Henry Kantor, Judge.
Stacy M. Du Clos, 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.
Jamie K. Contreras, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
General.
Before Powers, Presiding Judge, and Ortega, Judge, and
Mooney, Judge.*
POWERS, P. J.
Affirmed.
______________
* Ortega, J., vice Lagesen, J.; Mooney, J., vice Garrett, J. pro tempore.
184 State v. South
POWERS, P. J.
In this criminal case, defendant appeals from a
judgment of conviction for unlawful possession of metham-
phetamine, ORS 475.894(1), and assigns error to the trial
court’s denial of his motion to suppress.1 The issue before us
is whether the arresting deputy’s inquiry into the presence
of weapons and subsequent request for consent to search
defendant’s vehicle unlawfully extended the traffic stop in
violation of defendant’s state constitutional rights. We hold
that the trial court did not err in concluding that the dep-
uty’s inquiries were permissible for officer safety concerns
and, therefore, we affirm.
We review the denial of a motion to suppress for
legal error and, in so doing, “we are bound by the trial
court’s factual findings if there is any constitutionally suffi-
cient evidence in the record to support them.” State v. Maciel-
Figueroa, 361 Or 163, 165-66, 389 P3d 1121 (2017). To the
extent that the trial court did not make express findings
regarding disputed facts, we will presume that the court
found the facts in a manner consistent with its ultimate
conclusion, provided that the evidence would support such
findings. Id. at 166. We summarize the facts consistent with
those standards.
Just after midnight, Deputy Jewell was monitoring
traffic in the Linnton area of Portland and pulled over a
suspicious dark green Jeep Grand Cherokee with an expired
registration tag. According to Jewell, the Jeep was suspi-
cious because, while the deputy was parked on the side of
the road, the Jeep had driven past him twice within a short
period of time. Jewell noticed the expired registration tag
on the third time that the Jeep passed. Jewell turned on his
patrol lights, but defendant did not immediately pull over
and continued driving before turning into a parking lot.
When he approached defendant to ask for his driver’s
license, registration, and insurance, Jewell observed that
defendant was “fidgeting around in his seat, moving very
quickly, looking around the vehicle, [and] shifting his weight.”
1
ORS 475.894 has been amended since defendant committed his crime; how-
ever, because that amendment does not affect our analysis, we refer to the cur-
rent version of the statute in this opinion.
Cite as 300 Or App 183 (2019) 185
Jewell described this as unusual behavior for a traffic stop.
Jewell requested defendant’s driver’s license, registration,
and insurance, which defendant provided. Defendant then
volunteered that his driver’s license was invalid. In looking
at the driver’s license, Jewell verified that it was, in fact,
expired, and also saw that the insurance card was photo-
copied and “appeared altered” because “[t]here were mark-
ings over the letters and numbers.”
Based on defendant’s unusual behavior, Jewell asked
defendant why he was nervous, and defendant responded
that he was stopped for the “same violations” and arrested
for carrying a concealed handgun “several days ago.” Jewell
became concerned that defendant might be currently carry-
ing a concealed handgun or that there might be weapons in
the vehicle and decided to ask him as much. Jewell asked
defendant if there were weapons inside his Jeep, and defen-
dant replied, “[N]o, there’s no guns.” Jewell said that that
was not his question and again asked if there were weapons
in the Jeep. Defendant again replied, “[T]here’s no guns.”
Jewell returned to his patrol car to request addi-
tional officers to respond as cover units, conduct a records
check, and begin writing a traffic citation. However, he did
not complete the citation and instead re-approached defen-
dant and requested defendant’s consent to search the Jeep
for weapons. Defendant consented. Once back-up arrived,
Jewell searched the Jeep and found a pistol magazine and
two “revolver speed loaders,” all loaded with ammunition,
as well as a “fixed blade, double-edged dagger.” In the glove
compartment, he found a glass pipe and a plastic baggie con-
taining a crystalline substance, which was later determined
to be methamphetamine.
Defendant was arrested and charged with, inter
alia, unlawful possession of methamphetamine. He moved
to suppress all evidence gathered from the stop, arguing that
Jewell unlawfully extended the stop when he inquired about
the presence of weapons and requested consent to search.
The state responded by arguing that any extension of the
stop was justified by officer safety concerns. At the sup-
pression hearing, Jewell testified during cross-examination
about why he felt unsafe:
186 State v. South
“[Jewell]: * * * I felt uncomfortable sitting back at my
car writing a ticket or even standing outside of my car, you
know, staring into a traffic code book as well as a citation
without at least keeping the majority of my view on the
vehicle and [defendant].
“Q: And why was that?
“[Jewell]: My attention is taken away. * * * [A] lot of
divided attention and constantly having to watch people’s
actions, * * * what they’re doing inside of a vehicle, in addi-
tion to sitting in back there and having my face buried in a
citation book, plus listening to my gut that said that ‘this is
very uncomfortable and don’t do this.’ ”
Jewell described three specific reasons for his safety concerns:
(1) defendant’s failure to immediately pull over; (2) defen-
dant’s unusual behavior; and (3) defendant’s admission that
recently he was arrested for carrying a concealed handgun.
He later elaborated on his misgivings:
“[A] lot of this is gut and a lot of it is training and expe-
rience. * * *
“But the more I can directly observe somebody’s behav-
ior, the less likely * * * [it is] going to result in some type of
use of force against them or against myself. But when I’m
away from them, I can’t directly observe that or direct that
behavior if it becomes more than just suspicious, becomes
more of a safety issue if hands are out of my sight, espe-
cially when I’m by myself at a distance of maybe a car or
two length, a car behind the vehicle as I was in this partic-
ular case.
“And again, my focus is looking into a ticket book and
writing down information from a computer screen into the
book, back to a code book, et cetera. And in those instances,
there’s plenty of time for somebody to get out of the car,
produce a weapon, produce a handgun, and close that dis-
tance in a certain amount of time, considering that action
is faster than reaction, than I can get out of my car and pro-
duce a force greater than that to protect myself or overcome
that threat.”
The trial court denied the motion to suppress “by
a hair.” The court noted that, although none of the circum-
stances present in this stop would ordinarily be enough
to justify a traffic-stop extension based on officer safety,
Cite as 300 Or App 183 (2019) 187
defendant’s admission of his recent arrest for handgun pos-
session was “like a plus one thing.” Defendant waived his
right to a jury trial, and the trial court convicted him after
a trial to the court.
Article I, section 9, of the Oregon Constitution pro-
tects against unlawful searches and seizures.2 With respect
to seizures, the Supreme Court has discerned three catego-
ries for citizen encounters with law enforcement: (1) “mere
conversation,” a noncoercive encounter that does not amount
to a constitutional seizure; (2) a “stop,” which is a tempo-
rary restraint on a person’s liberty that is justified by the
needs of an ongoing emergency or reasonable suspicion that
a person is involved in criminal activity; and (3) “arrests,”
which are restraints on a person’s liberty with the goal of
charging that person with a crime and is justified by proba-
ble cause that the arrested individual committed the crime.
State v. Ashbaugh, 349 Or 297, 308-09, 244 P3d 360 (2010).
“The thing that distinguishes ‘seizures’—that is, ‘stops’
and ‘arrests’—from encounters that are ‘mere conversation’
is the imposition, either by physical force or through some
‘show of authority,’ of some restraint on the individual’s lib-
erty.” Id. at 309 (quoting State v. Rodgers/Kirkeby 347 Or
610, 622, 227 P3d 695 (2010)).
During a traffic stop, police inquiries do not ordi-
narily run afoul of the constitution because they are nei-
ther searches nor seizures. Rodgers/Kirkeby, 347 Or at 624.
“However, police inquiries unrelated to a traffic violation,
when combined with physical restraint or a police show of
authority, may result in a restriction of personal freedom
that violates Article I, section 9.” Id. Law enforcement may
constitutionally extend a traffic stop as long as the offi-
cer’s inquiries are “reasonably related” to the traffic stop.
State v. Aguirre-Lopez, 291 Or App 78, 84-85, 419 P3d 751
(2018).
2
Article I, section 9, of the Oregon Constitution provides:
“No law shall violate the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable search, or seizure; and no
warrant shall issue but upon probable cause, supported by oath, or affirma-
tion, and particularly describing the place to be searched, and the person or
thing to be seized.”
188 State v. South
In State v. Jimenez, 357 Or 417, 430, 353 P3d 1227
(2015), the Supreme Court held that in order to
“demonstrate that an officer’s weapons inquiry is reason-
ably related to a traffic investigation and reasonably neces-
sary to effectuate it, the state must present evidence that
(1) the officer perceived a circumstance-specific danger and
decided that an inquiry about weapons was necessary to
address that danger; and (2) the officer’s perception and
decision to act were objectively reasonable. To determine
whether that standard is met, a court must consider not
only the factual circumstances that existed when the offi-
cer acted, but also the officer’s articulation of the danger
that the officer perceived and the reason for the officer’s
inquiry.”
“[T]he officer’s safety concerns need not arise from facts particu-
lar to the detained individual; they can arise from the total-
ity of the circumstances that the officer faces.” Id. at 429.
During the pendency of this appeal, the Supreme
Court decided State v. Miller, 363 Or 374, 422 P3d 240, adh’d
to as modified on recons, 363 Or 742, 428 P3d 899 (2018),
which elaborated on the standards set forth in Jimenez.
Miller addressed two issues: “(1) whether an officer’s
circumstance-specific perception of danger can be based
entirely on circumstances that are not particular to the
detained person; and (2) what a reviewing court considers
to determine whether the state has proved that the officer’s
perception and decision were objectively reasonable.” Miller,
363 Or at 383.
Concerning the first part of the Jimenez test, the
court held that the state may prove “circumstance-specific”
safety concerns “even if the circumstances that the officer
identifies could be expected to exist for most individuals
detained under similar circumstances.” Id. Thus, an offi-
cer’s circumstance-specific safety concerns may arise from
general or common factors in a stop as long as the officer
articulates those factors.
Regarding the second part of the Jimenez test—
which requires the state to establish that the officer’s per-
ception and decision to inquire about weapons were objec-
tively reasonable—the court explained that a reviewing
Cite as 300 Or App 183 (2019) 189
court must assess the reasonableness independently of the
first part. Id. at 386 (“[O]bjective reasonableness is an
independent component of the state’s burden of proof, and
it presents a question of law that requires an independent
assessment by the court.”). Assessing the “reasonableness”
of the officer’s circumstance-specific perceptions is not as
exacting as the examination for reasonable suspicion to exe-
cute a weapons search. Id. at 388; see also State v. Pichardo,
360 Or 754, 762, 388 P3d 320 (2017) (noting that the test for
determining reasonableness is “not a demanding one”).
On appeal, defendant does not challenge the consti-
tutionality of the underlying traffic stop; rather, our narrow
task is to determine whether Jewell unlawfully extended the
stop. Defendant contends that Jewell unlawfully extended
the stop when: (1) he asked defendant if there were weap-
ons in the Jeep, and (2) he requested defendant’s consent
to search the Jeep for weapons. As explained below, we
conclude that Jewell’s officer safety concerns justified both
inquiries.
First, Jewell articulated “circumstance-specific”
safety concerns that justified his question about weapons
in the Jeep. Defendant did not immediately pull over; he
exhibited unusual behavior including fidgeting in his seat,
moving very quickly, and shifting his weight; and he volun-
teered that he had been arrested for carrying a concealed
handgun several days earlier. Those concerns contributed to
Jewell’s perception of danger and prompted him to address
that danger by asking defendant if there were weapons in
the Jeep.
Further, we readily conclude that Jewell’s question
to defendant about weapons in the Jeep was objectively rea-
sonable. Defendant’s acknowledgment that he was recently
arrested for carrying a concealed weapon, coupled with his
unusual, nervous behavior created a reasonable and logical
foundation for Jewell to inquire about weapons. Indeed, it
would be anomalous if Jewell could not follow up and ask
about weapons given defendant’s nervous behavior and
recent arrest.
Second, we similarly conclude that Jewell articulated
“circumstance-specific” safety concerns that prompted his
190 State v. South
request for defendant’s consent to search the Jeep for weap-
ons. In addition to the concerns described above, Jewell also
explained that he was uncomfortable because he would be
distracted by writing a citation and unable to watch defen-
dant’s movements during that time. Moreover, defendant
gave evasive answers to Jewell’s initial questions about the
presence of weapons in the Jeep, which reasonably height-
ened safety concerns. Given the totality of the circumstances,
we conclude that Jewell articulated sufficient officer-safety
concerns to justify a request to search the Jeep.
We further conclude that Jewell’s request for con-
sent to search was objectively reasonable. First, Jewell’s
training and experience informed his understanding of the
potential dangers that might arise during a traffic stop,
which should be considered when evaluating whether he
reasonably perceived a danger. See Miller, 363 Or at 388
(“[I]f an officer credibly testifies about an assessment of
risk that is based on training and experience, it is appro-
priate for the court to consider that assessment.”). Jewell
testified, based on his training and experience, about the
risks inherent in writing a traffic citation when there is a
concern that weapons might be present. The record in this
case, just as in Miller, contains “no evidence * * * [that] calls
into question the officer’s description of the risk to which
[the officer] would be exposed,” which, in this case, would
have involved Jewel taking his focus off defendant to write
the traffic citation. Id. Second, defendant’s evasive answers
to Jewell’s questions about weapons support a determina-
tion that Jewell’s perception of danger and request to search
the Jeep was objectively reasonable. Defendant’s responses
about “no guns” injected uncertainty about the presence of
weapons, and Jewell’s request to search the Jeep to reduce
that uncertainty is an objectively reasonable response
given the totality of the circumstances. Finally, a request
to search is less intrusive and qualitatively different from a
search. See Jimenez, 357 Or at 434 (Kistler, J., concurring)
(“A question is not a search. To require the same justifica-
tion for both * * * fails to recognize the difference.”). In short,
we conclude that Jewell’s request for consent to search was
a measured and reasonable response to his perceived threat
Cite as 300 Or App 183 (2019) 191
of harm, and the trial court therefore did not err in denying
defendant’s motion to suppress.
Affirmed.