dissenting.
I would sustain the trial court’s ruling on the motion to suppress and affirm defendant’s conviction for carrying a concealed weapon. Therefore, I respectfully dissent.
Defendant concedes that he was lawfully stopped. ORS 133.072. He does not challenge the seizure of the marijuana, only the seizure of the knife. He first contends that officer Igo observed him committing only a violation and that the stop-and-frisk statutes are inapplicable to violations.1 According to defendant, Igo’s authority allowed him to stop *730and detain defendant only so long as was necessary to issue a citation. Second, he contends that, even if Igo could frisk him for weapons, any frisk was unreasonable, because Igo lacked reason to believe that defendant was armed and presently dangerous.21 disagree with both contentions.
Igo observed defendant in possession of marijuana. That gave him reason to believe that defendant had committed an offense. He testified that he knew from experience that people who possess narcotics in the downtown bus mall area often carry weapons. The trial court concluded that that knowledge gave Igo a reasonable basis to suspect that defendant was armed and presently dangerous. See ORS 131.625(1). Even if ORS 131.605 et seq are inapplicable because Igo observed only an offense, he nevertheless was justified in frisking defendant for weapons, because he had a reasonable suspicion that defendant was armed and presently dangerous. That the offense observed is classified as a violation cannot require that the officer must endanger his life, or the lives of others present, in order to investigate that offense. See Pennsylvania v. Mimms, 434 US 106, 110, 98 S Ct 330, 54 L Ed 2d 331 (1977).
In State v. Tourtillot, 289 Or 845, 618 P2d 423 (1980), cert den 451 US 972 (1981), the Supreme Court reviewed the legislative history of Oregon’s stop-and-frisk statutes and explained:
“[T]he significance of this legislative history is that the [Criminal Law Revision] Commission knowingly and explicitly rejected proposed provisions that the Code was *731intended to completely define the scope of permissible search and seizure.” 289 Or at 852 (footnote omitted.)
I conclude that, in enacting ORS 131.605 et seq, the legislature did not intend to prohibit frisks for weapons when a police officer investigates an offense and he reasonably suspects that the person being investigated is armed and presently dangerous.3
Both Article I, section 9, of the Oregon Constitution and the Fourth Amendment impose limits on search and seizure in order to prevent arbitrary and oppressive governmental invasion of a citizen’s privacy and personal security. State v. Tourtillot, supra; Delaware v. Prouse, 440 US 648, 653-54, 99 S Ct 1391, 59 L Ed 2d 660 (1979); Pennsylvania v. Mimms, supra, 434 US at 108-109. The question here is whether the frisk for weapons, made when defendant was lawfully detained, was reasonable. Igo knew from experience that persons possessing narcotics in the downtown bus mall area often carry weapons. Thus, the justification for a frisk, Igo’s safety, was both legitimate and weighty. See Pennsylvania v. Mimms, supra, 434 US at 110; Terry v. Ohio, 392 US 1, 23, 88 S Ct 1868, 20 L Ed 2d 889 (1968); State v. Riley, 240 Or 521, 515, 402 P2d 741 (1965). We should weigh any intrusion into defendant’s privacy occasioned by the frisk against that justification. The intrusion here was slight; it involved asking defendant if he had a weapon, whereupon defendant, not Igo, reached into the jacket and produced a knife.4 Balanced against Igo’s legitimate concerns for his safety, that limited intrusion was reasonable.
ORS 131.615 provides:
“(1) A peace officer who reasonably suspects that a person has committed a crime may stop the person and, after informing the person that he is a peace officer, make a reasonable inquiry.
*730“(2) The detention and inquiry shall be conducted in the vicinity of the stop and for no longer than a reasonable time.
“(3) The inquiry shall be considered reasonable only if limited to the immediate circumstances that aroused the officer’s suspicion.”
ORS 131.625 provides:
“(1) A peace officer may frisk a stopped person for dangerous or deadly weapons if the officer reasonably suspects that the person is armed and presently dangerous to the officer or other person present.
“(2) If, in the course of the frisk, the peace officer feels an object which he reasonably suspects is a dangerous or deadly weapon, he may take such action as is reasonably necessary to take possession of the weapon.”
I read the majority opinion to say that the real problem with the frisk in this case is that the prosecutor failed to elicit any explicit testimony from Igo that he believed defendant was “armed and presently dangerous.” 76 Or App at 726-27.
Defendant also argues in this court that the frisk was too intrusive, because Igo unzipped some of defendant’s jacket pockets. That argument was not raised at trial, and I would not consider it.