State v. Wrenn

ROSSMAN, J.,

dissenting.

In State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987), the Supreme Court noted that, when it comes to the threat of serious physical injury to an officer, “it is not our function to uncharitably second-guess an officer’s judgment.” Because I believe that the majority has engaged in second-guessing here, I dissent.

Contrary to the majority’s assertion, Bates does not support the conclusion that Larson lacked a reasonable basis for believing that the officers were in immediate danger. In Bates, an officer testified that he had instructed the defendant to slide a bag out from under his car seat because he feared for his safety. The only facts that the officer articulated to support that fear were the defendant’s appearance, the presence *642of a television and videocassette recorder in the car’s back seat, out-of-state license plates and being in a high crime area. The court pointed out that “[n]either officer testified that he thought the object might be a weapon, or a case designed to hold a weapon.” 304 Or at 526. It determined that, without trial court findings on the issue, that evidence did not demonstrate that the officers had a reasonable suspicion that the defendant posed an immediate danger to their safety. 304 Or at 527.

Unlike in Bates, Larson was reasonable in fearing for his safety. He knew that the pickup that he had stopped was associated with methamphetamine houses; in fact, he had seen it at two such houses earlier the same day.1 In explaining why he searched the pickup’s cab, he testified that he was “searching for guns and weapons,” because

“from my experience when I worked with methamphetamine addicts for a long time, I know that they carry guns. I was not real interested in having [the driver] have access to any weapons at that point.”

Larson knew that he would be releasing the driver to return to the pickup. Furthermore, the trial court specifically found that Larson searched the truck because of safety concerns. That finding is supported by the record, and we are bound by it. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968); State v. Wales, 91 Or App 10, 18, 755 P2d 704 (1988).

In short, this is a case in which an officer testified that he conducted a search because he feared for the safety of himself or others, the trial court agreed and there is evidence to support that finding. We should come down on the side of the officer. The trial court should be affirmed.

I acknowledge that the record does not support a finding that defendant or the driver were drug addicts. However, the gist of Larson’s testimony was that methamphetamine and guns go together. Given the vehicle’s association with methamphetamine houses, whether defendant and the driver were addicts is not dispositive of whether it was reasonable to believe that the driver posed a danger to the officers.