dissenting.
I disagree with the majority’s conclusion that concealment of a samurai sword is proscribed by ORS 166.240, the concealed weapons statute. In my view, the statute regulates switchblade knives, dirks, daggers, ice picks, slung-shots, metal knuckles, and other “similar instruments,” i.e., small, concealable weapons that are designed to produce personal injury and could inflict similar types of injuries as the listed weapons. I construe the concealed weapons statute not to include large weapons that are not readily concealable on a person.
Because of my different understanding of the meaning of ORS 166.240, and in light of the analysis below, I would conclude that the police officers did not reasonably suspect that defendant had committed or was about to commit a crime when they stopped him. The evidence sought to be suppressed was seized as a result of that unlawful stop. Under State v. Hall, 339 Or 7, 25, 115 P3d 908 (2005), that evidence should have been suppressed because its discovery was not otherwise inevitable or sufficiently attenuated from the unlawful police conduct. I respectfully dissent from the majority’s conclusion to the contrary.
I agree with the majority that defendant was stopped when his automobile was blocked by the police vehicles and a police officer took defendant’s driver’s license. By that time, the police officers knew that defendant had been swinging a samurai sword while sitting by himself in the park bushes and that defendant had carried the sword under his coat afterwards. The state contends that the stop was justified under ORS 131.615(1) and Article I, section 9, of the Oregon Constitution because the police had reasonable suspicion that defendant had committed the crimes of disorderly conduct, ORS 166.025(1), and carrying a concealed weapon, ORS 166.240(1).
In my view, there was no reasonable suspicion that defendant violated ORS 166.240(1), the concealed weapons statute, by carrying an approximately four-foot sword under his coat. ORS 166.240(1) provides:
*109“Except as provided in subsection (2) of this section, any person who carries concealed upon the person any knife having a blade that projects or swings into position by force of a spring or by centrifugal force, any dirk, dagger, ice pick, slungshot,"metal knuckles, or any similar instrument by the use of which injury could be inflicted upon the person or property of any other person, commits a Class B misdemeanor.”
(Emphasis added.)
The issue, then, is whether an approximately four-foot samurai sword is a “similar instrument” to a switchblade knife, dirk, dagger, ice pick, slungshot, or metal knuckles. The majority reasons that, although a “samurai sword is not a dirk or a dagger, it could qualify as an ‘other similar instrument’ for purposes of ORS 166.240(1), if it also is designed for stabbing.” 229 Or App at 104. Because a sword is designed for stabbing, the majority concludes that it is a “similar instrument” under the statute and that the officers had an objectively reasonable suspicion that defendant was carrying a weapon within the meaning of ORS 166.240(1). Id.
In State v. Tucker, 28 Or App 29, 33, 558 P2d 1244, rev den, 277 Or 491 (1977), we construed the phrase “any instrument by the use of which injury could be inflicted” in a prior version of ORS 166.240(1) to mean “items not enumerated which are designed and intended primarily to inflict injury on the person or property of another.” The word “similar” was added to the phrase “or any instrument” in 1985. Or Laws 1985, ch 543, § 2.1 agree that a “similar instrument” is one that is designed to produce the same type of injury as the enumerated weapons, that is, stabbing or blunt force injuries. But I do not think that similarity in the type of injury produced is the only point of comparison used to determine what is a “similar instrument.” For example, a dirk is not similar to a lance used in jousting, even if both weapons produce stabbing injuries.
To be “similar” means to be “1: having characteristics in common : very much alike” or to be “2 : alike in substance or essentials” or “3 a : having the same shape.” Webster’s Third New Int’l Dictionary 2120 (unabridged ed 2002). It seems to me that a “similar instrument” is one that *110shares similar physical characteristics to the listed weapons. Because the statute primarily defines the covered weapons as ones that can be carried on the person, the size or conceal-ability of the weapon would seem to be an essential characteristic. A “similar instrument” is one that is similar in size to the listed instruments. Swichblades, daggers, dirks, stilettos, and ice picks are all relatively small stabbing weapons. Swords are large stabbing weapons. I do not read the statute to include large stabbing weapons as “similar instruments.”
There was no reasonable suspicion that defendant committed the crime of disorderly conduct. ORS 166.025(1) defines that crime and provides, in part:
“A person commits the crime of disorderly conduct in the second degree if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, the person:
“(a) Engages in fighting or in violent, tumultuous or threatening behavior[.]”
In State v. Cantwell, 66 Or App 848, 853, 676 P2d 353, rev den, 297 Or 124 (1984), we construed the statutory phrase “violent, tumultuous or threatening behavior” to make unlawful only
“the use of physical force or physical conduct which is immediately likely to produce the use of such force and which is intended to create or recklessly creates a risk of public inconvenience, annoyance or alarm.”
Similarly, in State v. Atwood, 195 Or App 490, 497, 98 P3d 751 (2004), the court held that the defendant’s actions of becoming agitated and upset, slamming and bringing up his fists, and pointing his finger at another person were legally insufficient to support a conviction under ORS 166.025(l)(a). We concluded that “there was no physical impact at all; defendant merely gestured angrily” and “[t]hat did not constitute ‘the use of physical force.’ ” Id. at 498; see also City of Eugene v. Lee, 177 Or App 492, 500, 34 P3d 690 (2001) (reversing conviction under city ordinance that was identical to ORS 166.025(l)(a) because the defendant’s offensive *111haranguing of a passerby in a public place, while wildly gesticulating and thumping his Bible, did not constitute “physical acts of aggression,” and there was no evidence that the defendant was about to engage in any physical act of aggression).
Defendant’s actions here may have caused some level of alarm to witnesses, as in Atwood and Lee. But waving a sword, while sitting by oneself in the bushes, is hardly “violent, tumultuous or threatening behavior” for the purposes of ORS 166.025(1). Defendant’s actions did not involve the use or imminent use of physical force in the sense required by the statute. Accordingly, there was no reasonable suspicion that defendant had committed the crime of disorderly conduct.
Because the evidence seized was a product of an unlawful stop, I would reverse the denial of defendant’s motion to suppress. I dissent from the majority’s contrary conclusion.