State v. Hannaford

ARMSTRONG, J.,

dissenting.

The majority concludes that Plummer reasonably suspected that defendant might pose an immediate threat to Plummer’s safety. It therefore concludes that Plummer acted lawfully when he conducted a warrantless search of a box in *463defendant’s car to determine if it contained a weapon. I disagree with those conclusions and, as a consequence, dissent from the majority’s decision to uphold the search.

To justify a warrantless search of a person or his property under the officer-safety exception to the warrant requirement, an officer must have a reasonable suspicion, “based upon specific and articulable facts, that the [person] might pose an immediate threat of serious physical injury to the officer or to others then present.” State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987) (emphasis added). Although fact matching in this area of law can be a fool’s errand, I nevertheless believe that the cases that have applied the officer-safety exception provide perspective on whether defendant’s conduct caused Plummer reasonably to believe that defendant posed an immediate threat to him.

In State v. Knox, 134 Or App 154, 894 P2d 1185 (1995), vac’d on other grounds 327 Or 97, a police officer stopped the defendant for a minor traffic infraction. Before the officer signalled the defendant to pull over, the defendant reached toward the passenger seat with his right hand. The officer, Sharpton, believed that that movement might indicate an attempt by the defendant to conceal something. After the defendant stopped his pickup, he got out of it and met Sharpton near the back of it. Sharpton recognized the defendant and remembered that the defendant had been a suspect in several crimes, including a homicide, and had a reputation for carrying weapons. The defendant had also been carrying weapons the last two times Sharpton had stopped him. After other officers arrived, Sharpton searched the defendant’s pickup because he was “worried that defendant might have access to weapons in the interior [of the pickup] by reaching through the window.” Knox, 134 Or App at 157. We held that the search did not come within the officer-safety exception because neither the defendant’s past involvement in criminal investigations nor his reputation for carrying weapons created a reasonable suspicion that he might pose an immediate threat to Sharpton. Id. at 159-60.

Here, the state argues that the circumstances of the stop led Plummer reasonably to believe that defendant might *464pose an immediate threat to him. However, I am not persuaded that the facts that Plummer articulated created a reasonable suspicion that defendant might have posed such a threat.

First, the circumstances surrounding the stop provide little evidence to support a concern for officer safety. Defendant was on probation for unauthorized entry and attempted unauthorized use of a motor vehicle. Although Plummer may have suspected that the car in which defendant was riding was stolen, Plummer had not received a report about the status of the car when he questioned defendant about the insurance for it. Moreover, there is nothing inherently threatening about defendant’s status as a person on probation for nonviolent crimes. In Knox, we rejected an officer-safety search despite the fact that the defendant had been a suspect in several crimes, including a homicide, and the officer’s first-hand knowledge that the defendant oftentimes carried weapons. Knox, 134 Or App at 159-60. It is unreasonable to assume that someone is dangerous simply because he or she is on probation for a nonviolent crime and is suspected of having committed a similar, nonviolent crime. Consequently, unlike the majority, I am not persuaded that the circumstances surrounding the stop support a finding that Plummer’s safety might have been in immediate jeopardy.

Defendant’s conduct further rebuts the state’s contention that Plummer had a reasonable belief that defendant might pose an immediate threat to him. Plummer testified that both defendant and the driver were cooperative at all times. There was no evidence that defendant ever threatened or acted aggressively toward Plummer. The only furtive movements by defendant occurred while he was searching for his insurance information. Defendant immediately stopped that conduct, however, when Plummer told him that his actions were making Plummer nervous. Additionally, defendant’s actions were not objectively threatening. Plummer testified that defendant was not attempting to retrieve something but, rather, to push it away: “Whatever it was, he was trying to get it away from him.”

*465The majority sees the situation differently. In its view, defendant’s actions regarding the box could be interpreted to represent either an attempt to push the box away or an inept effort to open the box to retrieve a weapon to use against Plummer and the other officers. 178 Or App at 462. The problem with the latter interpretation is that it cannot be reconciled with Plummer’s testimony about what he observed. The officer-safety exception requires us to focus on the specific facts that Plummer articulated that caused him to be concerned for his safety. Plummer consistently testified that he perceived defendant to be trying to push something away from himself. In addition to the statement quoted above, in which Plummer testified that “[w]hatever it was, [defendant] was trying to get it away from him,” Plummer also said that defendant

“wasn’t reaching under the seat like he was grabbing something. He was reaching under the seat like he was pushing something because every time he would thrust with his hand he would go deeper and deeper under the seat.”

The majority ignores that testimony to create a concern that Plummer did not articulate or have, that is, that defendant was reaching under the seat to grab a weapon. The officer-safety exception does not work that way.

The majority also fails to keep defendant’s nervousness in context and thereby makes it appear to be more a cause for concern than it was. Defendant became nervous only after Plummer asked him if “he had any drugs in the vehicle that he might be trying to hide.” Significantly, defendant did not appear to be nervous while pushing at the box under the seat, retrieving the insurance information, or responding to a question about whether he had a weapon under the seat. Plummer testified:

“A. I asked him if he had any weapons under the seat he was sitting on. He told me he didn’t. I asked him if he had any drugs in the vehicle that he might be trying to hide from me. At that time [defendant] became visibly nervous. His hands were trembling. His voice became shaky. His words were choppy and incomplete. I could see the pulse in his carotid artery along the right side of his neck pulsing. I could see that. * * *.
*466“Q. Let me stop you there. Prior to that time, had he been that nervous?
“A. No.
“Q. Was there a marked change in the degree of his nervousness when you asked about the drugs?
“A. Yes, there was.”

When viewed in context and as described by Plummer, defendant’s actions were not the type of furtive actions that could give rise to a reasonable belief that defendant might pose an immediate threat of serious physical injury to Plummer and the other officers.

A comparison of this case with Bates confirms that conclusion. In Bates, an officer ordered the defendant to pull a paper bag out from under a car seat. Instead of doing that, the defendant reached under the seat and kept his hands in that position despite repeated commands by the officer to pull the bag out. Despite the fact that a handgun was found underneath the seat, the Supreme Court concluded that,

“[a]lthough the police are entitled to some leeway in taking protective measures, we must draw the line at some point. The facts articulated by [the officer] in this case fall short of creating a reasonable belief that this defendant posed an immediate threat. In light of defendant’s cooperative attitude, his lack of aggressive or threatening behavior and the absence of any apparent weapon, the mere possibility that he might have committed a crime and the presence of what appeared to be a bag are not sufficient.” Bates, 304 Or at 527.

Here, defendant was cooperative and did not engage in any aggressive or threatening behavior. No weapons were apparent, and the mere possibility that defendant might have stolen the car and that he sought to push a box farther under his seat did not create a reasonable belief that he might pose an immediate threat to Plummer. If anything, the facts in Bates provided more support for the existence of a threat to the officer’s safety than do the facts in this case. There, the defendant reached under a seat and left his hands in that position despite repeated commands by the officer to do otherwise. Here, defendant turned his back and began *467pushing something away from himself, and, when the officer told defendant that his actions were making him nervous, defendant immediately stopped the objectionable conduct.1 It seems clear that the actions of the defendant in Bates were more furtive and more likely to create a reasonable belief that he posed an immediate threat to the officer than were the actions of defendant in this case.

Because the warrantless search by Plummer does not come within the officer-safety exception to the warrant requirement or any other exception to that requirement, I respectfully dissent from the majority’s decision to uphold the search.2

In fact, defendant’s actions could reasonably appear to be only what they were: an effort to hide a box that contained drugs. That conclusion is bolstered by the fact that Plummer began his search by lifting the armrest in the car to look for drugs before he retrieved and opened the box.

The state argues that the search of the box was authorized under both the automobile and the search-incident-to-arrest exceptions to the warrant requirement. However, each exception requires the existence of probable cause to conduct a search. Here, Plummer found a plastic bag that contained less than an ounce of marijuana. A person cannot be arrested for possession of that amount of marijuana. See State v. Tallman, 76 Or App 715, 712 P2d 116 (1985). Although Plummer’s discovery of methamphetamine did create probable cause to arrest defendant, Plummer discovered the methamphetamine by conducting an unlawful search. Plummer had authority to retrieve the small bag of marijuana, but he did not need to lift the armrest to do that. Hence, Plummer exceeded his authority when he lifted the armrest and found the methamphetamine. In light of what Plummer lawfully knew, he lacked probable cause to search the car or the box for evidence of a crime.