State v. Lumpkin

EDMONDS, J.,

concurring.

The majority and the dissent view this case as being governed by ORS 131.625(2). I write separately to suggest that the result in this case is not controlled by that statute. I begin by examining the lawfulness of the frisk that preceded the search of defendant’s pocket.

ORS 131.625(1) authorizes a frisk for weapons when the officer reasonably suspects that the person he has stopped is armed and presently dangerous. A “frisk” is the external patting of a person’s outer clothing. ORS 131.605(2). Here, the officer frisked defendant by patting down defendant’s waist area, where he found nothing, and then defendant’s jacket pockets, where he found a soft bulge. The justification *610for the conclusion that the frisk was lawful lies in the findings of fact made by the trial court.

“Officer Ludwig of the Redmond Police Department was dispatched to the Brown Elementary School, as a result of a report of a person being the Defendant’s description, attempting to enter the vehicle of [another person]. * * *.
“[The officer] confronted the Defendant near the east side of Brown school. Almost immediately the officer noticed that the Defendant seemed confused and distracted. The answers to the officer’s initial questions were not coherent nor responsive. The Defendant at one point appeared to believe he was in Ventura, California, rather than the State of Oregon.
“The Defendant’s eyes darted around from side to side. The Defendant fidgeted his feet. He paced around and he appeared agitated. He looked wide-eyed and dazed, according to [the officer]. The officer testified that based upon his experience these symptoms were precursors to a suspect fleeing.
“The officer asked certain questions of the Defendant about what he was doing and why he was attempting to get into the car. And the Defendant first told the officer that his girlfriend had given him the keys, and that she had then gone to work. When the officer asked the Defendant where his girlfriend worked, he said, ‘Ventura, California.’ He also said that her name was ‘Jamie.’ After some further discussion between the officer and the Defendant, the Defendant then appeared to realize he was in the State of Oregon, not in California.
“The officer asked the Defendant for identification * * * the Defendant pulled out his wallet and attempted to locate identification * * *. The Defendant finally produced a citation from Crook County, and advised the officer that he had been in an accident earlier and had received that citation. It was at this time that the officer realized the Defendant’s name was Jamie * * *.
“Based upon the officer’s observations of the Defendant and the officer’s fear [that] the Defendant would flee, the officer asked the Defendant to place his upper body and hands on the trunk of his patrol vehicle. This was to prevent the Defendant from fleeing while the officer completed his initial inquires. At the time the officer asked the Defendant to place his body and hands on the vehicle, he did not intend *611to search the Defendant, and he had not placed the Defendant under arrest. At this time he thought it was possible the Defendant was under the influence of controlled substances.
“While the Defendant was leaning against the vehicle trunk, the officer became concerned for his own safety because of the Defendant’s actions. The Defendant continued to act fidgety. He put his arms — he stiffened his arms, arched his back, lifted his torso from the trunk of the vehicle, and placed his hands toward his body out of the view of Officer Ludwig, contrary to Officer Ludwig’s expressed instructions to him. The Defendant did this on two occasions. The officer then became concerned that the Defendant may be attempting to reach a weapon by these movements.
“The officer then patted down the Defendant beginning at the waist area where he found nothing. He next patted the jacket pockets of the Defendant, and in one jacket pocket found a soft — or discovered a soft bulge. The officer was particularly concerned that the Defendant may possess a small weapon which was easily concealed, such as a razor blade or a fish hook, which can be hidden anywhere. Based upon his training and his prior experience, he knew that these could be hidden and used as weapons. And he had previously found razor blades in soft containers on individuals. He did feel no bulky item such as a gun.”

The officer proceeded to seize the item in defendant’s pocket. The trial court further found:

“The officer removed this soft item from the Defendant’s pocket. He described it as an orange and black nylon baggie, and it was approximately three inches long by about one and a half inches in diameter. The officer was concerned that it contained a weapon.
“After the officer pulled the baggie out of the Defendant’s pocket, he noticed that the top was open, and inside he could see the edge of a clear plastic — a small clear plastic baggie. Based upon the officer’s training and on his experience in arrests in the past, he recognized the small clear plastic baggie as an item commonly used for controlled substance packaging.”

The search of defendant’s jacket pocket potentially implicates ORS 131.625(2). It provides:

“If, in the course of the frisk, the peace officer feels an object which the peace officer reasonably suspects is a dangerous or deadly weapon, the peace officer may take such *612action as is reasonably necessary to take possession of the weapon.”

Here, the trial court did not find that the officer “felt” an object in defendant’s pocket which he reasonably suspected was a dangerous or deadly weapon. If the legislature intended ORS 131.625(2) to be a limitation on all searches that are preceded by a frisk, then the dissent is correct that the contents of the baggie must be suppressed.

So far as I can determine, whether the legislature intended ORS 131.625(2) to be a limitation on the authority to conduct all searches that are preceded by a frisk, has not been expressly decided by us or the Supreme Court. Some discussion of what we have held regarding subsection (2) is instructive. In State v. Miner, 31 Or App 495, 570 P2d 998 (1977), the defendant argued in part that under ORS 131.625, the officer must make a reasonable inquiry before conducting a frisk. We rejected that argument, saying:

“These two sections [ORS 131.615 and ORS 131.625], as the commentary indicates, are separate grounds for making a stop and then conducting a frisk. They do not set forth a police procedure code which must be followed seriatim to make a search lawful. * * *” 31 Or App at 499. (Emphasis supplied.)

In State v. Kurtz, 46 Or App 617, 612 P2d 749, rev den 289 Or 588 (1980), the police executed a search warrant inside a residence. The defendant was discovered in the basement of the house. An officer patted him down for weapons, felt a “large bulky object” in his back pocket and removed a wallet and a notebook to see if there was a weapon concealed in them. There was not, but later, the contents of the notebook were seized. There was no evidence that the officer had a subjective belief that what he felt was a weapon, nor were there objective facts to lead the officer to believe that the defendant was armed. The officer did testify that it was his general practice in frisking to remove any item that might conceal a weapon. We held that the statute did not authorize that “scope of [a] frisk.” 46 Or App at 621.

In summary, our decisions have held ORS 131.625(2) to be applicable when a generalized search occurs after the officer has grounds for and commences a frisk. Under those circumstances, subsection (2) expressly permits an officer to extend the frisk beyond an external patting of the *613subject’s outer clothing when the officer feels what could be a weapon during the frisk. This case presents a different issue because the officer had a specific articulable reason for believing that defendant could be secreting a weapon in a particular area of his body before the officer commenced the frisk: On two occasions, defendant reached toward the midsection of his body which was out of the view of the officer despite the officer’s instructions to defendant to keep his hands on the vehicle and visible.

The only support in Oregon case law, of which I am aware, for the proposition that ORS 131.625(2) is alimitation on all searches that are preceded by a frisk is found in the concurring opinion of Justice Roberts in State v. Davis, 295 Or 227, 244, 666 P2d 802 (1983). She wrote:

“It is my conclusion that our statute [ORS 131.625] must he applied on its terms and provides the beginning point for an analysis of any stop and frisk situation. It has simply superseded Terry [v. Ohio, 392 US 188 S Ct 1868, 20 L Ed 2d 889 (1968)]. Our statute contains no language authorizing full searches of the person or beyond, nor does it provide for alternative measures, reasonable or otherwise. Rather, the statute confines a reasonable search to an external patting of outer clothing of a lawfully stopped person. * * * [W]here a law exists authorizing a particular search or seizure, and that law is itself constitutional, our task is limited to assessing the legality of police conduct on those terms. And when an officer’s act exceeds his or her statutoiy authority we have no occasion to consider whether such conduct conformed with state or federal constitutional requirements.” 295 Or at 247.

I respectfully disagree for four reasons. First, the text and context of ORS 131.625(2) does not contain limiting language, but authorizes an expanded search based on specific information derived from the external patting of the subject’s clothing. The concurring opinion in Davis perceives that grant of authority as constituting a general limitation on an officer’s authority to otherwise search for weapons that may endanger the officer or others. The statute does not say what the opinion contends for it to say. If that interpretation is to be found in the statute, it must arise as a result of the necessary implication from the language in the statute. Minard v. Douglas County, 9 Or 206, 211 (1881). Authority that is implicit in a statute is the authority to make an express rule *614effectual. See Pioneer Real Estate Co. v. City of Portland, 119 Or 1, 247 P 319 (1926). That rule does not aid here, because the proposed construction of subsection (2) as an implicit limitation on all searches preceded by a frisk causes the statute to function as a limitation on the authority to search under Article I, section 9, not as a grant of additional authority under the statute. Moreover, we are prohibited by law from adding to the scope of a statute through the guise of statutory interpretation. See ORS 174.010.1 would hold that subsection (2) does not expressly or implicitly limit the authority of an officer to perform a search otherwise authorized by the constitution.

If the text and context of subsection (2) are not dispositive, then we are to turn to the legislative history underlying ORS 131.625. See PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993). It demonstrates that the legislature intended solely to define the nature and extent of the inquiry of a stopped person. For instance, a provision in an early draft of the bill that became ORS 131.625 excluded other evidence that was found as a result of the frisk. The drafters decided to delete that provision. That deletion suggests that the legislature did not intend ORS 131.625 to govern the admissibility of evidence seized during a frisk,1 or to promulgate a rule that would circumscribe searches that follow frisks under every circumstance. Accordingly, subsection (2) permits an expanded search based on a particular circumstance, but the statute does not purport to regulate other circumstances. Furthermore, the drafters of the Model Code of Pre-Arraignment Procedure (MCPP), on which ORS 131.625 is based in part, specifically rejected suggestions to incorporate special rules regarding the admission of items other than weapons that are discovered in the course of a frisk.2

*615Third, reading the statute to act as a limitation on the right to search creates the potential for absurd results. Assume that an officer acting with reasonable suspicion that a crime has been committed stops a defendant and during the stop, but before a frisk, he observes the defendant secrete a razor blade in his jacket pocket. During the frisk, the officer feels a soft bulge in the pocket, but does not feel the razor blade. If the statute is read as a limitation on all searches preceded by a frisk, the officer could search no further. In determining the meaning of a statute, we are required to read statutes in a way that will not create an absurd or unreasonable result. McKean-Coffman v. Employment Div., 312 Or 543, 549, 824 P2d 410 (1992). Read in the way that the concurring opinion in Davis suggests subjects a police officer to obvious danger and requires him to ignore what he has seen, to his peril.

Finally, Justice Roberts wrote her opinion before State v. Bates, 304 Or 519, 747 P2d 991 (1987). In Bates the court held that Article I, section 9, does not prohibit an officer from taking reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, he develops a reasonable suspicion based on specific and articu-lable facts that the citizen poses an immediate threat of serious physical injury to the officer. 304 Or at 524. Here, the encounter with defendant was lawful because of the report that the officer had received and defendant’s actions. Based on all the circumstances, the officer had a reasonable suspicion that defendant posed an immediate threat to him, because defendant refused to obey the officer’s instructions to keep his hands where the officer could see them, and because he kept reaching for the middle portion of his body which was out of the view of the officer. As the court said in Bates:

“[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 *616latitude to take safety precautions in such situations.” 304 Or at 524.

I would hold that it was reasonable for the officer to investigate those areas toward which defendant had been reaching to determine if they contained weapons. Based on his experience, the officer knew that weapons such as razor blades or fish hooks are often secreted in soft bulges such as the one felt by the officer in defendant’s jacket. It was not an unreasonable step under the circumstances for the officer to protect his own safely to remove the object making the bulge to determine if it contained a razor blade or fish hook that could be used by defendant against the officer. When the officer undertook that task, evidence that the item contained a controlled substance appeared in plain view, which led to probable cause to seize and search it.

In summary, defendant was lawfully stopped under ORS 131.615 and lawfully frisked under ORS 131.625(1). ORS 131.625(2) is inapplicable because the officer did not feel an object which he reasonably suspected was a dangerous or deadly weapon. However, it does not necessarily follow that the officer unlawfully investigated the contents of the bulge. If there were other objective facts of which Ludwig was aware that would warrant a person of reasonable caution to believe that he needed to take appropriate steps to protect himself, then he was authorized to search for a concealed weapon under Article I, section 9. See State v. Ehly, 317 Or 66, 90, 854 P2d 421 (1993). Here, Ludwig knew before the frisk commenced that defendant kept reaching for an area of his body concealed from the officer, contrary to the officer’s express admonishment. In the light of his experience, it was reasonable for Ludwig to believe that the bulge that he found by patting the outside of defendant’s pocket could contain the very object for which it appeared defendant was reaching. Because the predicate for the search was not only what was discovered during the frisk, ORS 131.625(2) does not control the outcome of defendant’s motion to suppress, and the lawfulness of the search is sustainable under section 9. For this reason, I concur in the majority’s result, but not in its reasoning.3

*617Riggs, J., joins in this concurring opinion.

See Minutes, House Judiciary Committee, May 7,1973, p 8; Tape recording, House Judiciary Committee, May 7,1973, Side I at 238-60.

The commentary to the Proposed Oregon Criminal Procedure Code says that “[sjection 32 [ORS 131.625] is derived from [tentative draft of the] MCPP § 2.02(4).” In the final draft of the MCPP, that section was renumbered as § 110.2(4). Model Code of Pre-Arraignment Procedure 7 (1975). The commentary to that section says:

“No special rule is proposed as to the seizure or admissibility of things discovered in the course of the search here authorized. Thus, by the general law, any seizable item discovered in aproper search couldbe seized, and admitted into *615evidence. If the circumstances did not justify a search, or if the search was more extensive than authorized in this Subsection, then the products of such a search would not,' of course, be admissible in evidence.” Model Code of Pre-Arraignment Procedure 11 (1975).

The dissent says:

*617“The parties do not suggest that the search of the pocket and the soft container, and the seizure of the contents of the container, were authorized by any law other than ORS 131.625(2). The argument presented in the concurring opinion of Edmonds, J., was not preserved by the parties below, or briefed in this court.” 129 Or App at 620 n 4.

Before the trial court, defendant moved to suppress the evidence under ORS 131.625(2) and Article I, section 9. Because ORS 131.625(2) is inapplicable to the facts of this case, an analysis of the propriety of the seizure of the soft container under section 9 is required to decide the motion to suppress.