- Court: Oregon Court of Appeals
- Area(s) of Law: Criminal Procedure
- Date Filed: 12-07-2016
- Case #: A158034
- Judge(s)/Court Below: Shorr, J. for the Court; Armstrong, P.J.; & Tookey, J.
- Full Text Opinion
Defendant appealed a judgment of conviction for unlawful delivery of methamphetamine, ORS 475.890, assigning error to the denial of his motion to suppress evidence that the police discovered following a traffic stop. On appeal, Defendant argued the officer’s pat down search of Defendant was not justified by a reasonable concern for officer safety. For the officer-safety exception to apply “(1) the officer’s actions must have occurred during a lawful encounter; (2) the officer must have had a reasonable suspicion that the individual posed an immediate threat of serious physical injury; and (3) the steps the officer took to protect the officer or others must have been reasonable.” To be objectively reasonable, the officer’s safety concerns must be based on facts specific to the particular person searched, not on intuition or a generalized fear that the person may pose a threat to the officer’s safety. In this case, the officer’s concerns arose primarily from Defendant’s initial furtive movement, his demeanor, the bulges in his pockets, his statement that he did not know what was in his pockets, and the situational concern arising from the officers’ decision to walk the drug detection dog around Defendant’s truck. However, the Court held that “in light of defendant’s cooperative and compliant attitude throughout the encounter, none of those factors— individually or in totality—objectively suggests that defendant posed an ‘immediate threat of serious physical injury.’” Reversed and remanded.