Argued and Submitted May 31, 2013.
Multnomah County Circuit Court. 110443301. Youlee Y. You, Judge.
Kyle Krohn, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Douglas F. Zier, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[262 Or.App. 208] NAKAMOTO, J.
Defendant appeals his convictions for unlawful possession of a firearm, ORS 166.250, and carrying a concealed weapon, ORS 166.240, assigning error to the trial court's denial of his motion to suppress. We reverse and remand.
We review a trial court's denial of a motion to suppress for legal error. State v. Mitchele, 240 Or.App. 86, 88, 251 P.3d 760 (2010). We are bound by the trial court's findings of fact if there is sufficient evidence in the record to support them. State v. Ehly, 317 Ore. 66, 75, 854 P.2d 421 (1993). The following facts are taken from or are consistent with the trial court's findings.
At approximately 10:55 p.m. Portland Police officers Ockunzzi and Gryphon were on patrol when they saw defendant and his brother walking on a sidewalk carrying a box of beer. The officers thought that the two men were underage, so they got out of their patrol car, approached the men, explained their concern about the men being underage, and asked for identification. The men complied, and Ockunzzi returned to the patrol car to verify their identifications. Gryphon remained with the men and talked with them casually about the men's plans for that night.
Back at the patrol car, Ockunzzi verified that the men were not underage, but discovered that defendant's brother had a prior arrest for carrying a concealed loaded firearm. Ockunzzi testified that the prior arrest concerned him and he thought that the two men might be armed. Ockunzzi then returned to where Gryphon and the two men were talking. As Ockunzzi was handing the identifications back to the men he said, " You are 21, so no problem there," and then immediately said to defendant's brother, " I see that you've been arrested for carrying a concealed weapon in the past," and asked him, " Do you have any on you now and is it okay if I search you for weapons?" Gryphon testified that as soon as Ockunzzi mentioned the word " weapon," defendant's demeanor changed; defendant got " very agitated," his eyes got big, and he glanced to the left and right. Defendant's brother replied that he did not have any weapons, and he consented to a search.
[262 Or.App. 209] After Ockunzzi asked to search defendant's brother, Gryphon noticed that defendant got more agitated, took a step back, was watching Ockunzzi search his brother, and took one long look over his shoulder. Gryphon testified that defendant's behavior was " very odd" because " before any of the weapons stuff came up" they had had a calm conversation and " nothing out of place seemed to be going on with their motions or attitude, their demeanor." Gryphon testified that as soon as defendant's demeanor changed, Gryphon began watching for any other " odd indicators." Gryphon testified that he thought that defendant's step backwards was odd, as was the way defendant was staring at Ockunzzi and glancing around and looking over his shoulder. Because of the change in defendant's demeanor, Gryphon asked defendant, " Are you okay?" Defendant did not respond. Gryphon repeated, " Hey, are you [alright]? What's going on?" Defendant responded, " Why do you have to search us? We didn't do anything wrong," and he continued to stare at Ockunzzi and his brother and took another small step backwards. Gryphon testified that, at that point, he became concerned and thought that defendant was going to run or that he was possibly armed.
After noticing defendant's agitated behavior, Gryphon asked defendant whether he had any weapons on him. Defendant did not respond. Gryphon asked defendant again, and again, defendant did not respond. Gryphon then told defendant that he needed to search him for weapons because Gryphon believed that he was armed. Gryphon told defendant to put his hands behind his head and to turn around, and defendant complied. Gryphon took control of defendant's hands, and before frisking him, asked defendant again if he had any weapons. This time, defendant replied that he had a pistol in his pants. Gryphon searched defendant, found a loaded gun, and asked defendant if he had any other weapons. Defendant responded that he had brass knuckles and a knife in his pocket, which Gryphon found upon searching.
Ockunzzi testified that, as he was patting down defendant's brother, the brother appeared nervous and pulled away as Ockunzzi was searching his right side. Ockunzzi explained that he then discovered a knife blade in the [262 Or.App. 210] brother's right pocket. Ockunzzi testified that, during his search of the brother, Ockunzzi had also noticed that defendant had been staring at him and had changed his position as if he was going to run.
The state charged defendant with unlawful possession of a firearm and carrying a concealed weapon. In a pretrial motion, defendant moved to suppress all statements and evidence obtained from defendant during the encounter. He argued that the officers unlawfully extended the stop in violation of Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. Because his ...