dissenting.
I disagree with the majority’s conclusion that the record establishes that Elaias had a reasonable concern for his safety when he stopped defendant. I therefore respectfully dissent from its decision to affirm the order that denied defendant’s motion to suppress.
Because I understand the record differently from the majority, I restate the facts. Portland Police Officer Elaias was on patrol near the bathrooms at Waterfront Park in Portland at about 4:00 p.m. on November 11, 2000. At that time, the Portland Saturday Market was operating next to the park. Elaias knew from his training and experience that the area had “a bad problem with controlled substances.” He saw defendant and another person sitting together on a wall. Elaias spoke with defendant’s companion and asked to look in his mouth. The companion opened his mouth and thereby disclosed a “bindle of white substance” under his tongue.
Defendant remained seated on the wall during the encounter. At some point, he put his hand in his pocket. Elaias directed him to take his hand out of his pocket. Elaias testified that he gave that order because he “was afraid [that defendant] might have been reaching for a weapon.” That *330fear was not based on any particular facts that Elaias identified that led him to believe that defendant had a weapon. It was based, rather, on the fact that Elaias knew that “sometimes people carry weapons, i.e. a gun or knife or something like that.” Defendant complied with the command. When he took his hand out of his pocket, it was covered in a brown substance that Elaias suspected to be tar heroin. Elaias then searched defendant and found five bindles of what was later determined to be heroin in defendant’s left jacket pocket.
Before trial, defendant moved to suppress the drug evidence, arguing that Elaias’s order to him to take his hand out of his pocket constituted an unlawful stop. The trial court concluded that the command was not a stop and denied the motion to suppress. Defendant was ultimately convicted of drug possession. Defendant appealed, arguing that the command was a stop and that the stop was not based on a reasonable concern for officer safety.
As the majority notes, State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987), established the test under Article I, section 9, of the Oregon Constitution for the lawfulness of a stop based on a concern for officer safety. The majority fails to note, however, that Bates established that an officer’s subjectively held fear of a threat of immediate physical injury is not reasonable unless it is based on particularized facts that are articulated in the record and demonstrate a potential immediate threat of serious physical injury. State v. Miglavs, 337 Or 1, 12, 90 P3d 607 (2004). Miglavs demonstrates the kind of particularized facts that are sufficient to satisfy that standard. In Miglavs, officers conducted a precautionary patdown of the defendant because, based on the following factors, they were concerned that the
“defendant might pose an immediate threat to their safety: (1) defendant was wearing bagg[y] tan pants and a black bagg[y] shirt that had ‘18th’ written on the back of the shirt in large white letters which the officers associated with the attire of 18th Street gang members; (2) the young man with defendant also had a gang-related tattoo consisting of three dots in the shape of a triangle that [an officer] knew meant ‘[m]i vida loca’ or ‘my crazy life’ in English and his shirt also had the number 18 on it; (3) both defendant and the man *331with him were wearing, untucked [,] extremely bagg[y clothing that] could easily conceal weapons; (4) the officers knew that 18th Street gang members operated in the vicinity of the encounter and that they carried guns; (5) Officer Cockreham personally removed weapons from several 18th Street gang members and had removed, just previously to this incident, a gun from an 18th Street gang member; and (6) neither defendant nor the woman in the car chose to leave after Brown returned their identification.”
Id. at 11 (footnote and internal quotation marks omitted; brackets in original). The court rejected the defendant’s argument that his cooperative attitude and lack of suspicious behavior made the officers’ concern for their safety unreasonable because, in the totality of the circumstances, those factors were “not sufficient to dispel the reasonableness of the officers’ particularized suspicion that defendant might have posed a danger to their safety.” Id. at 12. The court determined that the type of clothing the defendant wore, standing alone, would have been insufficient to create a reasonable concern for officer safety.
However, the court noted that, because the clothing identified the defendant as a member of a gang that the officers knew to carry weapons, and because one of the officers had recently removed a weapon from another member,
“the officers’ safety concerns regarding [the] defendant were not based on generalized or stereotypical information about gang behavior but, instead, were sufficiently particularized, based on specific training about and recent personal experience with a narrowly identified group, viz., members of the local gang to which defendant and his male companion proclaimed their allegiance and which operated in the area where the officers encountered defendant.”
Id. at-13. The court also noted that “the contact with [the] defendant and his two companions occurred at a late hour in a darkened area in the general vicinity where one of the officers recently had encountered armed members of the 18th Street gang”; that the defendant initially refused to answer the officers’ questions about where he lived; and that, “although [he] was free to move from the immediate area after his identification was returned to him, he chose to remain in the area near where the police were conducting an *332ongoing investigation.” Id. at 13-14. It concluded that “the combination of factors that the officers identified were sufficient to give rise to a reasonable and individualized suspicion that defendant might have posed a safety threat to them.”/d. at 14 (emphasis in original).
I turn to whether the record contains particularized facts that made Elaias’s concern for his safety reasonable under the totality of the circumstances. Elaias testified that he was “afraid [that defendant] might have been reaching for a weapon.” However, Elaias did not testify about any specific and articulable facts that reasonably led him to have that fear. Specifically, Elaias did not identify anything about defendant, his behavior, or the circumstances of their encounter that would give Elaias a reasonable basis to suspect that defendant had a weapon in his pocket that he might use against him. For example, Elaias did not testify about the manner in which defendant placed his hand in his pocket (such as quickly or furtively). He also did not testify about any training or experience that he had had about the incidence of weapons seized from or possessed by people who are associated with others who are engaged in drug activity in the Waterfront Park area or in similar public settings.
From the evidence in the record, all that Elaias knew at the time that he stopped defendant was that defendant and his companion were sitting together on a wall at 4:00 p.m. on a day in mid-November in an area of Waterfront Park in which unlawful drug activity frequently occurred, that Portland’s Saturday Market was open and operating nearby, that defendant’s companion had complied with Elaias’s request to open his mouth and thereby had disclosed the presence of a bindle of what Elaias reasonably believed to be a controlled substance, and that, while still sitting on the wall, defendant had placed his hand in his pocket. Thus, the only fact in the record particularized to defendant that Elaias cited as making him concerned for his safety was that defendant had put his hand into his pocket. Elaias’s testimony establishes that he had no particular reason to believe that defendant’s pocket contained a weapon. Also noteworthy is the trial court’s conclusion that Elaias did not have a reasonable suspicion that defendant possessed illegal drugs before *333he stopped him.1 The state did not appeal from that ruling. Thus, the record indicates that Elaias stopped defendant because he simply was uncomfortable with defendant having his hand in his pocket. On that record, I can conclude only that Elaias’s fear for his safety was not a reasonable one.
The majority also posits that the facts of this case are analogous to those in State v. Gilkey/White, 172 Or App 95, 18 P3d 402 (2001). In Gilkey ¡White, an officer stopped a car after receiving a tip that the occupants of the car might have recently ingested controlled substances. The car had three occupants, one of whom “exhibited signs of being under the influence of drugs, including rapid speech, constricted eyes, a whitish coating on her tongue, and eyelid and body tremors.” Id. at 97. A records check also indicated that another occupant had an outstanding warrant for her arrest for a violation. The officer arrested that occupant pursuant to the warrant. After making the arrest, the officer ordered the other two occupants out of the car. By that time, a back-up officer had arrived. The back-up officer saw the defendant “turn away from the officers and slowly reach into his left front pants pocket.” Id. at 97-98. The two officers subsequently subdued the defendant and found three items in the hand that he had put into his pocket, including a knife and methamphetamine. We concluded that, on those facts, “a reasonable officer could have concluded from defendant’s furtive attempt to pull something out of his pocket that he possessed a weapon and that he was attempting to use it.” Id. at 100 (internal quotation marks omitted). Unlike the defendant in Gilkey-White, defendant did not turn away from Elaias in an attempt to hide his actions, did not put his hand in his pocket after his companion had already been arrested, and remained seated throughout his very brief encounter with Elaias. Therefore, the facts of Gilkey-White are fundamentally different from those presented here.
*334In summary, I believe that the information in the record was insufficient to support a conclusion that Elaias reasonably suspected that defendant was reaching for a weapon that he might use against him.
I respectfully dissent.
Brewer, C. J., and Schuman and Ortega, JJ., join in this dissent.The court stated:
“I can tell you the thing I have resolved. I have resolved the issue of whether the facts rose to reasonable suspicion. They did not. So there was no reasonable suspicion based on the facts as I articulated them in our last hearing.”