Argued and Submitted July 31, 2013.
Multnomah County Circuit Court. 110241478. Christopher J. Marshall, Judge.
Anne Fujita Munsey, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Pamela J. Walsh, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.
SCHUMAN, S. J.
[263 Or.App. 152] Defendant was convicted of unlawful possession of a firearm, ORS 166.250(1)(a). On appeal, he assigns error to the trial court's denial of his motion to suppress evidence derived during what defendant characterizes as an unlawful extension of a traffic stop. The trial court ruled that there was no unlawful extension and that, in any event, even if there were, the search was justified under the officer-safety exception to the warrant requirement. We agree with defendant that the officer who obtained the disputed evidence did so during an unlawful extension of a stop and that the officer-safety exception does not apply. We therefore reverse and remand.
The relevant facts are not in dispute and are confirmed by a video, admitted as an exhibit, taken from the arresting officer's in-car camera. Around noon on January 24, 2011, Trooper Borchers of the Oregon State Police saw defendant walk across the street at a busy intersection in Portland (122nd Ave and Division) while the stop light there read " Don't Walk" --a Class D violation under ORS 814.020(1) and (3). Borchers noted that defendant was wearing a " puffy" black jacket over a " hoodie," oversized pants, and white tennis shoes--garb that Borchers thought might indicate gang affiliation. Borchers knew that the 122nd and Division intersection was in a high-crime area where gang activity was common. He turned his car around and drove to a position near defendant, who was sitting on a bench at a bus stop. When defendant saw Borchers's car approach, he began to walk away, until
Borchers honked his horn and indicated to defendant that he should stop. Borchers then asked defendant why he had crossed the street against the light; defendant replied that he had seen somebody else doing the same thing and " thought it was okay as well." Borchers told defendant that the light had indicated " Don't Walk." " At that time point," he later testified, " for officer-safety reasons, I just asked [defendant] if he had any weapons on him, [263 Or.App. 153] which I do with all contacts on the street with pedestrians, just for--obviously for officer-safety reasons." Defendant replied that he had a gun in his right front pocket. Without being asked, he leaned forward and put his hands on the hood of Borchers's car. Borchers handcuffed defendant and asked him if he had a license for the gun. Defendant replied that he did not. Borchers frisked defendant, took his identification, and confirmed that there was a gun in defendant's pocket. A check with dispatch revealed that defendant had an active warrant for his arrest. Borchers then took the gun from defendant, put it in the trunk of the squad car, and took defendant to the police station. While in the car, Borchers continued to question defendant and, after several minutes, gave him Miranda warnings. Defendant was ultimately charged with unlawful possession of a firearm.
Before trial, defendant filed a motion to suppress " all evidence * * * obtained during his illegal seizure and the illegal search of his person, as well as fruits derived from his illegal seizure and/or illegal search of his person." He argued that Borchers questioned him and discovered the gun during an unjustified extension of the traffic stop. The state, for its part, maintained that the questioning and arrest were justified by the officer-safety exception to the warrant requirement. The court denied defendant's motion. He was subsequently tried and convicted.
On appeal, defendant amplifies the argument he made below, reasoning that the dispositive rule of law is that, although defendant was a pedestrian when Borchers encountered him, the encounter was a traffic stop because its purpose was to cite defendant for a violation of the traffic code  and, shortly after the encounter began, defendant [263 Or.App. 154] knew that as well. In such situations, defendant argues, the police officer must proceed to execute the citation and cannot make any inquiry that is unrelated to the traffic violation unless there is reason to suspect the stopped person of a separate crime to which the additional inquiry relates, the inquiry occurs during an unavoidable lull in the processing of the citation (such as occurs when the officer is awaiting information from dispatch), or some exception to the warrant requirement (such as officer-safety) justifies the inquiries. Such inquiries amount to an unlawful extension of the stop. According to defendant, that rule of law derives from State v. Rodgers/Kirkeby, 347 Ore. 610, 227 P.3d 695 (2010). Defendant then proceeds to argue that Borchers did not have reasonable suspicion of an additional crime involving weapons, there was no unavoidable lull, and, under the totality of the circumstances, the officer-safety exception did not apply.
The threshold issue, then, is whether defendant correctly characterizes the holding in Rodgers/Kirkeby. That is not a simple question, because Rodgers/Kirkeby appears to point simultaneously and with equal vigor ...