State v. Smith

TOOKEY, J.,

dissenting.

The majority holds that the officer safety exception articulated by the Supreme Court in State v. Bates, 304 Or 519, 747 P2d 991 (1987), does not apply in this case, in which a lone police officer, in a remote forested area, confronted a group of five individuals with firearms to cite them for violations involving the use of their firearms. I do not agree that the trial court erred in determining that the officer safety exception applied to the encounter, because “it is not our function to uncharitably second-guess an officer’s judgment” when “the precautions taken were reasonable under the circumstances as they reasonably appeared at the time the decision was made.” Id. at 524-25. Because I believe that the majority has not faithfully applied the principles set forth in Bates, I respectfully dissent.

The majority articulates the issue on appeal as “whether there was sufficient evidence about defendant’s demeanor, conduct, or status that suggested that defendant posed an immediate threat of serious injury to Scott.” 277 Or App at 303. However, the correct inquiry is this: “Did any of the circumstances confronted by [Scott] either individually or collectively justify a reasonable suspicion that * * * defendant posed an immediate threat to [Scott]?” 304 Or at 525. That inquiry is critical because a particular fact about an individual “may be a circumstance that, when considered in the overall context or totality of the circumstances of a police-citizen contact, contributes to the reasonableness of an officer’s safety assessment.” State v. Miglavs, 337 Or 1, 13, 90 P3d 607 (2004). The majority’s holding represents a failure to address the totality of the circumstances in this case.

The majority sums up its reasoning, stating that “there was no evidence presented in this case of the type that we have found to provide reasonable suspicion of an immediate threat.” 277 Or App at 310. We have recognized that “fact matching can be a fool’s errand” in officer safety cases because the material facts often vary significantly from case to case. State v. Senn, 145 Or App 538, 545, 930 P2d 874 (1996). I am not aware of any case we have considered in which an officer was approaching five armed *312individuals alone, in a remote forested area, to cite them for violations involving the use of firearms, and the majority cites no case that involves those circumstances. Our case law guides our analysis, but it also requires us to consider the specific circumstances of this case. If we do not focus on the specific circumstances faced by Scott, then we lose our way in this inquiry.

First, unlike in Bates, defendant in this case was in possession of a firearm. The Supreme Court concluded that the officer in Bates did not have a reasonable belief that the defendant posed an immediate threat “[i]n light of [the] defendant’s cooperative attitude, his lack of aggressive or threatening behavior and the absence of any apparent weapon[.]” Bates, 304 Or at 527 (emphasis added). The majority concludes:

“As in Bates, here, 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 defendant might have committed a violation and the fact that defendant’s clothing might have been a suitable receptacle to hold a weapon were not sufficient to create a reasonable belief that defendant posed an immediate threat.”

277 Or App at 305 (emphasis added).

The majority’s conclusions, regarding the presence of weapons, rest on a misapplication of our standard of review. Under State v. Ehly, 317 Or 66, 74-75, 854 P2d 421 (1993), we are bound by the trial court’s findings of fact as long as there is constitutionally sufficient evidence in the record to support them. In the absence of express factual findings, we presume that the trial court decided the disputed facts in keeping with its ultimate conclusion. Id. at 75. On appeal, “[o]ur function is to decide whether the trial court applied legal principles correctly to those facts.” Id.

Here, the trial court found that Scott “came upon a group of five males shooting guns at targets on live trees.” Defendant testified that he complied with Scott’s request to secure his weapon and that he had been shooting at the targets. That evidence supports the finding that defendant was in possession of a firearm and using the firearm in violation *313of the law at the time Scott encountered the group. Thus, contrary to the majority’s conclusion, there were facts sufficiently particularized to defendant that were articulated by Scott. 277 Or App at 303.1 would conclude that defendant’s possession of a firearm is a circumstance specific to defendant. In other words, defendant’s possession of a firearm is a specific fact that is not based “on intuition or a generalized fear that [defendant] may pose a threat to [Scott’s] safety.” State v. Jackson, 190 Or App 194, 198, 78 P3d 584 (2003), rev den, 337 Or 182 (2004).

Second, Scott confronted a group with multiple weapons—not just one individual with a single weapon. The majority concludes, based on the state’s closing argument, that the “inference—that persons who engage in target shooting with rifles are likely to carry other concealed weapons—is nothing more than speculation,” and thus, “is not a ‘specific and articulable fact’ that suffices under Bates” 277 Or App at 306-07 (emphasis added). However, the trial court never expressly found that the group was using rifles, and there is no evidence in the record to support that suggestion. See State v. Dugan, 177 Or App 545, 550, 34 P3d 726 (2001) (“An attorney’s arguments are not evidence.”). The majority asserts that “ [b] ecause no companions of defendant were apparently armed after their weapons were secured and before defendant was searched, the size of the group provides no defendant-specific evidence of reasonable suspicion of an immediate threat.” 277 Or App at 305 n 3. At the time Scott searched defendant, he suspected that defendant or other members of the group may have had additional weapons other than those that he had seen them secure. See Bates, 304 Or at 525 (officer safety inquiry requires us to analyze “the circumstances as they reasonably appeared at the time that the decision was made”). The purpose of the patdown was to reveal whether defendant or his companions had any additional weapons that could be used to harm Scott while he issued citations to defendant and his companions.

It was not “too great an inferential leap,” State v. Bivins, 191 Or App 460, 468, 83 P3d 379 (2004), for Scott to reasonably suspect that, when multiple weapons were being used in a remote area, there may have been additional *314handguns or knives that he may not have observed. See generally State v. Pope, 150 Or App 457, 462-63, 946 P2d 1157 (1997), rev den, 327 Or 521 (1998) (“[A]n officer’s discovery of a single weapon in a party’s possession may reasonably increase, rather than lessen, the officer’s suspicion that the party is holding additional weapons.”); Bivins, 191 Or App at 467 (“The line between a reasonable inference *** and an impermissible speculation * * * is drawn by the laws of logic.”); State v. Daniels, 234 Or App 533, 542, 228 P3d 695, rev den, 349 Or 171 (2010) (knowledge that is based on common sense does not need any reference to training and experience). The majority’s assertion that it is speculative for Scott to infer that people are likely to carry any concealed weapons—including pocket knives—when they are engaged in recreational activities in rural areas, demonstrates that the majority views the circumstances faced by Scott through an urban lens. See Jackson, 190 Or App at 199 (the appropriate inquiry examines the circumstances as they reasonably appeared to the officer). I conclude that the circumstance that defendant and his companions were target shooting illegally with multiple firearms when they were confronted by Scott is a “specific and articulable fact” that reasonably suggests that there were additional weapons that Scott did not observe when he initially encountered the group.

Finally, the specific facts that defendant was target shooting illegally and in a group in possession of multiple weapons must be viewed in light of the totality of the circumstances set forth below. It is true, as the majority points out, that defendant and his companions complied with Scott’s request to secure their weapons and were not difficult or threatening. But the fact that Scott mitigated “that most immediate and obvious threat, before undertaking a complete frisk, does not diminish the reasonableness of [Scott’s] belief that defendant might be armed with additional weapons and was presently dangerous.” State v. Redmond, 114 Or App 197, 201, 834 P2d 516 (1992). Defendant’s “cooperative attitude and lack of suspicious behavior” are two circumstances we must consider, but, ultimately, we must consider “whether the totality of the circumstances justified the decision to engage in a precautionary patdown.” Miglavs, 337 Or at 11-12.

*315In sum, as established on this record, there were three salient circumstances known to Scott at the time of the encounter. First, Scott was alone in a remote forested area and his backup was one-and-a-half to two hours away. Safety concerns increase when an officer is alone, without backup, or in an isolated area. See State v. Roe, 154 Or App 71, 75, 961 P2d 228 (1998) (officer by himself in an isolated area); State v. Austin, 145 Or App 217, 224, 929 P2d 1022 (1996), rev den, 325 Or 368 (1997) (officer alone without backup).

Second, Scott approached a group of five unknown individuals with firearms in their possession. Safety concerns can increase when an officer confronts multiple suspects, see Miglavs, 337 Or at 14 (officer safety concern increased due to the officers’ need to focus their attention on the defendant’s companion rather than the defendant who had remained in close proximity to the officers), and when weapons are present. See Pope, 150 Or App at 462-63 (knife in sheath on belt); Redmond, 114 Or App at 201 (sheathed knife); State v. Riley, 240 Or 521, 523, 402 P2d 741 (1965) (gun under the driver’s seat with the butt of the gun sticking out). As previously noted, defendant and his companions were polite and cooperative, but, understandably, the presence of multiple weapons and multiple suspects, when combined, substantially enhanced the objective reasonableness of Scott’s safety concern. See State v. Thomas, 276 Or App 334, 339, 367 P3d 537 (2016) (stating that “the presence of multiple people can heighten an officer’s safety concern so as to permit a patdown of one person” when there are weapons present).

Third, the individuals in the group were wearing clothing that could conceal a weapon, and Scott did not know if any of them had any handguns or knives after they placed their visible firearms in their vehicle a couple feet away. See Miglavs, 337 Or at 13 (baggy clothing alone would not support a reasonable suspicion that the defendant posed a risk to officer safety, but because the group that the defendant was associated with was known to possess weapons, a concern that the clothing could conceal a weapon was reasonable); City of Portland v. Weigel, 276 Or App 342, 344-45, *316367 P3d 541 (2016) (officer safety concern increased when the armed defendant had immediate access to a weapon and another weapon “about ten feet away”).

Those circumstances, collectively, gave rise to an objectively reasonable belief that defendant posed an immediate threat of serious physical injury to Scott. The fundamental question facing an officer in Scott’s situation is how to proceed. This court’s “empathy is necessarily imperfect”—we do not know what it is like to be a lone police officer confronting five armed individuals to cite them for their unlawful use of firearms in a remote forested area. See State v. Miglavs, 186 Or App 420, 434, 63 P3d 1202 (2003) (Haselton, J., concurring). Questions we should ask ourselves include, “Would I have been apprehensive—even scared?” and would my response under these circumstances have been similar to Scott’s? Id. In light of the Bates inquiry, to determine whether “any of the circumstances confronted by [Scott] either individually or collectively justify a reasonable suspicion that *** defendant posed an immediate threat to [Scott],” my answer to those questions is yes. 304 Or at 525. Scott’s apprehension that defendant or his companions might have had additional weapons was objectively reasonable.

Therefore, I conclude that Scott responded reasonably by conducting a patdown of defendant. See State v. Rudder, 347 Or 14, 25, 217 P3d 1064 (2009) (“The constitution requires us to adhere to the principle that an officer’s reasonable suspicion that a suspect might have a weapon on the suspect’s person can justify a patdown [.] ”). Bates instructs us to not “uncharitably second-guess an officer’s judgment” because it is too easy with the benefit of hindsight to unfairly minimize the “life-or-death decisions” that officers frequently make “in a matter of seconds.” 304 Or at 524; Austin, 145 Or App at 224-25 (refusing to second-guess officer’s decision to draw his weapon and order the defendant to the ground to frisk him when officer was alone, without backup, and believed the defendant had a gun). In my view, the trial court did not err when it concluded that Scott “took reasonable precaution to protect himself from the group by requiring them to put away their observable firearms and then conduct a patdown search to determine *317if they possessed any weapons that could hurt him while he was issuing citations for the violations.” Thus, I respectfully dissent.

Hadlock, C. J., DeVore, J., and Shorr, J., join in this dissent.