State v. Rickard

HASELTON, J.,

dissenting.

I agree with every aspect of the majority’s analysis except the last: The officers’ indiscriminate emptying of *528defendant’s pockets after he had been handcuffed, and while he and other suspects were being held at gunpoint, cannot be justified under State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987). Accordingly, I respectfully dissent.

Like my colleagues, I recognize that the circumstances here were highly dangerous, at least initially. And, like my colleagues, I am mindful of Bates’ admonition not to “uncharitably second-guess” the split-second decisions of officers working under dangerous, potentially deadly, circumstances. Bates, 304 Or at 524. I have no illusions — recent events permit us none — that it is far easier, and safer, to write opinions in cases like this than to apply them on the street, night and day.

Nevertheless, in our constitutional system, there are, and must be, limits. This case exceeds those limits. When viewed in the totality of the circumstances, the officers’ conduct here, in removing everything from the occupants’ pockets without engaging in a frisk, exceeded even the benign “considerable latitude” that Bates allows. Id.

That conclusion derives from a combination of three factors. First, by the time the officers began removing everything from the Datsun’s occupants’ pockets, several police officers were at the scene, all with guns drawn. Second, each occupant was handcuffed before the officers checked his or her pockets. Third, the primary, albeit not necessarily exclusive, object of officer safety concerns was a firearm, which, if secreted in a pocket, could, presumably, be detected by a pat-down. There is no suggestion that a frisk would have been ineffective or inadequate.

As the majority acknowledges, Bates contemplates consideration both of the nature and magnitude of the perceived threat and of the degree of intrusion, which Article I, section 9, would ordinarily preclude. The validity of any given measure must be assessed in the light of the circumstances at the time that measure is undertaken.

Here, the initial danger was very great. It was precisely because of that danger that the officers’ conduct in ordering the occupants out of the Datsun at gunpoint and then handcuffing them was reasonable and permissible. *529However, by the time the indiscriminate emptying of pockets occurred, that danger had been substantially mitigated by virtue of the presence of multiple officers with drawn weapons and the handcuffing. Moreover, as noted, there was no explanation in this record as to why a pat-down would not have reasonably addressed the officer safety concerns as so mitigated. Finally, the degree of intrusion — the involuntary and indiscriminate removal of all objects from a physically restrained person’s clothing — was very great.

Despite those factors, the majority concludes that, the officers were, nevertheless, entitled to “completely eliminate any risk,” 150 Or App at 526, and to undertake “all possible safety precautions.” 150 Or App at 527 (emphasis in original). The majority gives no authority for that absolutist approach — which, given that safety is never certain, could just as easily justify a strip search. Indeed, such a categorical approach cannot be reconciled with the dictates of reasonableness, which, the majority itself acknowledges, constitutionally circumscribe permissible officer safety measures. See 150 Or App at 525-26. In the end, neither the state nor the majority can explain why a simple frisk would not have been reasonable and adequate in these circumstances1

It was incumbent upon the state, as the proponent of the warrantless search so effected, to demonstrate why, given officer safety concerns as mitigated at the time of the search, the wholesale indiscriminate intrusion was reasonably warranted. See generally Bates. It failed to do so. Accordingly, the emptying of defendant’s pockets constituted anillegal search under Article I, section 9. See State v. Johnson, 120 Or App 151, 158, 851 P2d 1160, rev den 318 Or 26 (1993) (where there was no reason to believe that attempting to follow the statutory procedure would be futile, officers’ decision to skip the frisk procedure in ORS 131.625 and to immediately handcuff the defendant constituted an unreasonable seizure).

*530Finally, suppression is required because the discovery of the narcotics in the drawstring bag flowed from the illegal search. The state suggests that there was no “exploitation,” because the causal link between any illegality and the discovery of the drugs was nothing more than the sort of “but for”-ness disavowed in State v. Rodriguez, 317 Or 27, 854 P2d 399 (1993). I disagree. The link between the illegal conduct and the evidence sought to be suppressed was direct: The conduct itself literally revealed evidence that defendant sought to suppress. Consequently, the motion to suppress should have been granted.

I do not, of course, suggest that the wholesale emptying of a suspect’s pockets can never be justified as an officer safety measure. One obvious scenario could involve a single officer encountering dangerous suspects, without backup. In such a situation, if officer safety concerns were sufficiently great, it might well be reasonable for the officer to order the suspects to empty their pockets.