State v. Roe , 1998 Ore. App. LEXIS 749 ( 1998 )

EDMONDS, J.

Defendant appeals from his conviction for unlawful possession of a firearm, ORS 166.250, arguing that the trial court erred when it denied his pretrial motion to suppress evidence of a firearm in his possession. We affirm.

A Douglas County Sheriff Deputy turned on his overhead lights to stop defendant’s vehicle after he saw that the license plate light on the vehicle was not working. Defendant did not comply with the signal immediately, passed up several opportunities to pull over, proceeded into an isolated location and then stopped. It was approximately 11:00 p.m. When the officer approached defendant’s car, he saw bows and other hunting equipment in the back seat of the car and a box of .22 caliber ammunition on the center console next to defendant. He could also smell the odor of alcohol emanating from the vehicle. The officer asked defendant if there was a gun in the vehicle, and defendant replied that he had a gun under the driver’s seat. The gun was not visible to the officer. The officer asked defendant to step out of the car and then retrieved the weapon. In his motion to suppress, defendant asserted that the “search, without consent or a warrant, or a reasonable belief that the defendant posed a threat to the safety of the officer, was an unconstitutional violation of [his] rights.” The trial court ruled that under the circumstances, “the officer developed a reasonable suspicion of an immediate threat of serious physical injury,” and “he did not have to await a hostile act from the defendant before making his inquiry [about the gun].”

Defendant does not challenge the validity of the traffic stop. On appeal, defendant assigns the trial court’s ruling as error, arguing that the “officer had no reason to fear for his safety merely based on the fact that he saw a box of ammunition.” He focuses the attack on the lawfulness of the search on the inquiry that led to the search and does not otherwise contest the right of the officer to conduct a search for the gun, once the officer learned that there was a gun in the car. The state counters that the officer’s inquiry was permissible under ORS 810.410(3)(b) and for purposes of officer safety.¹ ORS 810.410(3)(b) provides that a police officer “[m]ay stop and detain a person for a traffic infraction for the purposes of investigation reasonably related to the traffic infraction, identification and issuance of citation.” According to the state, “[ijnquiries made to ensure that the investigation proceeds safely are reasonably related to the process of issuing a traffic citation.” In State v. Senn, 145 Or App 538, 542-43, 930 P2d 874 (1996), we held that an officer’s inquiry for purposes of safety during a traffic stop does not violate ORS 810.410(3)(b) so long as the inquiry is justified by a reasonable suspicion based on specific and articulable facts that there exists an immediate threat of harm to personal safety. Otherwise, an inquiry could impermissibly broaden the scope of the traffic stop and exceed the authority of the officer granted under the statute.

In Senn, we noted that the proscription in ORS 810.410(3)(b) against the extension of traffic investigations without reasonable suspicion and the principle that officers may lawfully conduct searches and seizures for purposes of officer safety under Article I, section 9, of the Oregon Constitution, embody similar policies. As the Supreme Court said in State v. Bates, 304 Or 519, 747 P2d 991 (1987):

“[I]t is not our function to uncharitably second-guess an officer’s judgment. A police officer in the field must frequently make life-or-death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. An officer must be allowed considerable latitude to take safety precautions in such situations. Our inquiry therefore is limited to whether the precautions taken were reasonable under the circumstances as they reasonably appeared at the time the decision was made.” Id. at 524-25.

We choose not to second-guess the officer’s decision to ask about the presence of the gun. The reasonableness of the officer’s inquiry depends on the circumstances in which he found himself. Here, the officer was by himself in an isolated area at night, having stopped a vehicle that had passed up opportunities to stop after being signaled to do so and that had driven purposefully into that area. After the officer approached the vehicle, he smelled the odor of alcohol emitting from the car, and the specter of dealing with that potentially exacerbating influence added to the dangerousness of the situation. When he looked into the vehicle, he saw a box of ammunition that was on the center console within the reach of defendant. That observation gave rise to a reasonable suspicion that defendant was in possession of a lethal weapon, also within his reach. That suspicion, combined with the circumstances of the officer’s location, the fact that it was late at night and dark, the odor of alcohol from defendant’s car and defendant’s driving conduct led to a reasonable suspicion that defendant could present an immediate threat of serious physical injury. We hold that the inquiry about whether defendant was in possession of a gun was within the latitude granted to the officer to provide for his own safety under the circumstances as they reasonably appeared at the time. The trial court was correct when it rifled that the officer did not have to wait until defendant threatened or attacked him before he could ask whether defendant had a gun and when it denied defendant’s motion to suppress.²

We do not reach the issues presented by the state under Ballot Measure 40.

Affirmed.

1 ORS 810.410(3)(d), which was enacted as part of Oregon Laws 1997, chapter 866, section 4, provides that a police officer “[mlay make an inquiry to ensure the safety of the officer, the person stopped or other persons present, including an inquiry regarding the presence of weapons.” However, the statute became effective on October 4,1997. Because the judgment in this case was entered in March 1996, the statute is inapplicable to this case.

2 The dissent says, “I believe that the facts articulated by the state and found by the trial court fall far short of creating a reasonable belief that defendant posed an immediate threat to the officer.” 154 Or App at 77 (emphasis in original). In his brief, defendant says, “As soon as the officer saw the box of ammunition he had a concern for his safety.”