dissenting.
I dissent. The majority opinion is inconsistent with controlling precedent and common sense. In State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987), the Supreme Court said:
“Article I, section 9, of the Oregon Constitution does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based on specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present.” (Emphasis supplied.)
Under Bates, we must follow a simple two step inquiry: first, was the encounter lawful; and, second, was the frisk based on specific and articulable facts that defendant might pose an immediate threat of serious physical injury to the officer or others.
First, the majority’s unsupported assertion that the encounter here was not lawful is incorrect. Like many cases arising from a stop of an automobile, defendant was at the least lawfully detained as a passenger in a vehicle lawfully *76stopped. State v. Bowen, 88 Or App 584, 588, 746 P2d 249 (1987), rev den 305 Or 45 (1988).
Second, the officer’s suspicion that defendant was armed was justified. At the time of the frisk, the officer knew that defendant had been convicted of armed robbery and had been released from prison three weeks before. The driver had stated that defendant was a hitchiker, but he had remained in a vehicle which was supposedly disabled. Defendant was sitting at an odd angle and appeared nervous. When asked to leave the car, he did so in such a way as to keep his back to the officer, by putting his feet up on the seat and sliding forward instead of sliding sideways with his feet on the floor. The officer testified:
“[N]ormally in my experience when somebody has to come out of the car from the passenger side to the driver’s door, normally you would scoot across the seat and go out the door. But in this case [defendant] started to scoot and lifted his feet up on the seat toward me that way which I really thought was suspicious at that time.
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“I really became suspicious why he was scooting across the seat that way.
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“Well, I suspected that he might have a weapon on him and also if he did, my first suspicion would be that if he did, it would probably be in the side of his pants or in the middle of his back.”
In the words of the trial court,
“I think when you take all of these facts into consideration, gentlemen, you have to conclude that Deputy Carpenter was obligated to search this man. I think if he hadn’t, he would have been derelict in his duties.”
As the Supreme Court stated in State v. Bates, supra:
“[I]t is not our function to uncharitably second-guess an officer’s judgment. A police officer in the field frequently must make life-or-death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. An officer must be allowed considerable latitude to *77take safety precautions in such situations. Our inquiry therefore is limited to whether the precautions taken were reasonable under the circumstances as they reasonably appeared at the time the decision was made.” 304 Or at 524.
The majority would require something more to justify a reasonable suspicion that defendant was carrying a gun. As the events in this case developed, something more could have been an attempt by defendant to pull out his gun. The law does not, and should not, require police officers to be sitting ducks, at the mercy of lawfully detained persons who are armed.