dissenting.
Because I believe that the facts of this case, when examined in light of similar decisions by both this court and the Supreme Court, show that the officer’s inquiry about a gun was not justified, I respectfully dissent.
An officer investigating a traffic infraction can conduct a search for weapons if, and only if,
*76“during the course of a lawful [stop], the officer develops a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present.”
State v. Knox, 134 Or App 154, 158, 894 P2d 1185 (1995) (quoting State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987)), vacated and remanded on other grounds 327 Or 97 (1998) (emphasis supplied). The same requirement exists for officer inquiries as to the presence of weapons. State v. Senn, 145 Or App 538, 542, 930 P2d 874 (1996) (“An officer safety inquiry * * * in the course of a traffic stop does not violate ORS 810.410(3)(b), so long as that inquiry * * * is justified by reasonable suspicion as prescribed in Bates.”).
In this case, the trial court concluded that the officer
“developed a reasonable suspicion of an immediate threat of serious physical injury based upon the following: (a) it was a night time stop; (b) the officer detected an odor of alcohol emanating from the vehicle; (c) the officer observed hunting equipment in the vehicle; and (d) most importantly, the officer saw ammunition in the center console.”
The court found the following additional facts, however:
“The officer had never seen the defendant before the night in question. In spite of the fact that defendant had been drinking, he was not under the influence of intoxicants.'In addition, the defendant did nothing to make the officer feel threatened, and it should be noted that Mr. Roe’s two-year-old child was asleep in the car.”
(Emphasis supplied.) In my view, those additional findings undermine the trial court’s ultimate conclusion.
Although it may be true that the circumstances of individual cases make fact matching a fool’s errand, in this case it is instructive to revisit the decisions that have applied the officer-safety analysis to traffic stops. When viewed in light of those cases, the facts of this case clearly did not warrant the officer’s inquiry. In Senn, the defendant was a passenger in a car that had been pulled over. After the defendant told the investigating officer that he had no identification, the officer asked him to get out of the car so that he could ask for his name out of earshot of the other people in the car, from *77whom he would then seek verification. Once Senn was out of the car, the officer asked if he was armed. Other than certain “furtive movements” made by the defendant when the car was pulled over, we determined that there were no specific and articulable facts to support a concern about officer safety. 145 Or App at 545. Accordingly, we concluded that the inquiry exceeded the scope of the traffic stop. Id. at 545-56. In Knox, the defendant was known to the police officer. He previously had been investigated for delivery of controlled substances, at one time had been a suspect in a homicide and “had a reputation for carrying weapons.” 134 Or App at 156. Although the trial court found that the defendant “ ‘was not acting in any unusually angry or strange manner that would give the officer any immediate concern,’ ” id. at 157, and that he “had never before exhibited any violence towards the police or made threats to them that the officer was aware of,” id., it nevertheless denied the defendant’s motion to suppress evidence because it concluded that the officer-safety exception to the warrant requirement provided authority for the officer to search for weapons. We reversed, holding that the facts that the court found did not support a conclusion that the defendant posed an immediate threat of serious physical injury. Id. at 159. In a passage particularly relevant to the present case, we concluded that “mere access to weapons,” without further explanation by the state, does not give rise to a reasonable and articulable suspicion of an immediate threat of serious physical injury. Id. at 160.
Here, the state has argued that the presence of the box of .22 ammunition gave the officer reason to believe that defendant might be armed. According to the state, that, together with the circumstances of the stop and the lateness of the hour, justified the officer’s inquiry. 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. See Bates, 304 Or at 527. There was no evidence that defendant was uncooperative or belligerent. The fact that he did not stop immediately when signaled to do so by the officer does not, by itself, indicate an unwillingness to cooperate. There was no testimony by the officer, or finding by the court, to indicate anything more than that defendant might have had access to a gun. Mere *78access alone is not enough. Neither is the acknowledged fact that police officers face danger in conducting traffic stops. See, e.g., Maryland v. Wilson, 519 US 408, 117 S Ct 882, 885, 137 L Ed 2d 41 (1997); Michigan v. Long, 463 US 1032,1049, 103 S Ct 3469, 77 L Ed 2d 1201 (1983).1 While I agree that there is danger inherent in a traffic stop, it is the immediate threat of danger that implicates the officer-safety exception to the warrant requirement.
I dissent.
The majority cites Bates for the proposition that we will not second-guess an officer’s judgment when it comes to the issue of officer safety. What the majority neglects to mention is that in Bates, as in Knox and Senn, the court on appeal concluded that the officer was not justified in making the disputed search. I agree that an officer in the field is often required to make life or death decisions based on scant information, but, like the court in Bates, I believe that we must draw the line at some point.