Argued and Submitted November 26, 2013
Curry County Circuit Court. 11CR0006. Cynthia Lynnae Beaman, Judge.
Erica Herb, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
David B. Thompson, 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 Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[265 Or.App. 382] SERCOMBE, J.
Defendant appeals a judgment of conviction for felon in possession of a firearm. ORS 166.270. He assigns error to the trial court's denial of his motion to suppress evidence obtained after the car he was riding in was stopped by a police officer. Defendant contends that that evidence should be suppressed, raising two arguments. He first argues that the evidence was obtained after an unlawful extension of a traffic stop. We reject that argument without further discussion. Defendant also challenges the trial court's conclusion that the patdown search that yielded the evidence was justified by the officer-safety exception to the warrant requirement. He argues that several facts underlying the trial court's conclusion are not supported by the record. Considering only those facts that--in his view--are supported by the record, defendant contends that officer-safety concerns were not objectively reasonable. We disagree that the disputed facts are not supported by the record, and, for the reasons explained below, we affirm.
We are bound by the trial court's findings of fact if there is constitutionally sufficient evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). If the trial court did not make express findings of fact on a pertinent issue and there is evidence from which those facts could be decided more than one way, we presume that the court found the facts in a manner consistent with its ultimate conclusion. Id. We state the facts in light of those standards. In this case, the parties' dispute hinges on whether, before starting the patdown, a police officer had asked defendant if he had a weapon and received a response indicating that defendant had " something." We discuss in detail below the evidence related to those facts.
While on patrol with his canine, Charger, police officer Watson observed a gold Honda with several license plate traffic infractions. He recognized the vehicle because he knew that another police officer had arrested a then-occupant of the vehicle for possession of methamphetamine two weeks earlier. Both Watson's patrol car and the vehicle were traveling in the same direction in two separate lanes in a 25 mile-per-hour zone. The vehicle passed Watson but [265 Or.App. 383] then fell behind him, ultimately slowing to a " crawling" speed of between 17 and 19 miles per hour. After the vehicle turned into a gas station, Watson turned on his patrol car's emergency lights and initiated a traffic stop.
Watson's patrol car is equipped with a video recording device. Except as noted, the events described below were recorded. The video recording was admitted into evidence and played during the hearing on defendant's motion to suppress; it is also part of the record on appeal.
The area of the gas station where this encounter took place was well lighted. Watson approached the vehicle and saw three people: the driver and two passengers. Watson recognized the driver, Jones, whom he had encountered previously in the context of Watson's work as a police officer. Watson also knew that Jones was the person who had been in the vehicle and then arrested for possession of methamphetamine by another officer two weeks earlier.
Watson approached the driver's side of the vehicle and began talking to Jones. Watson discussed with Jones the possibility that traveling at such a low speed could impede traffic. Watson also pointed out the license plate violations. Watson obtained Jones's license and vehicle information, and asked Jones who his passengers were. Defendant was in the front seat on the passenger side. Watson recognized defendant from " several * * * law-enforcement related" contacts, one, several years earlier, involving theft of a van that had been burned and another involving menacing or " some sort of a dispute." The second passenger, Hellrig, was in the backseat on the driver's side. Watson also recognized Hellrig. Hellrig had been present when Watson arrested Hellrig's wife or fiancé e for possession of methamphetamine. Watson did not ask for defendant's or Hellrig's identification. Watson returned to his patrol car and requested dispatch to run a records check on defendant and Hellrig.
While Watson was at his patrol car, a second officer, Murray, arrived. Murray eventually performed the patdown search of defendant. As had Watson, Murray recognized defendant. Murray had originally met defendant when he " first was released from prison" and knew about the incident involving defendant and a vehicle that had been burned. In [265 Or.App. 384] addition, Murray described defendant as " intimidating, considering his past [and] his size." Defendant is about 6'4" and weighs about 225 to 230 pounds. Murray is 5'10" and weighs 175 pounds. According to Murray, " I'm concerned every time I talk with [defendant]." Murray testified that the reason why he ultimately patted down defendant was his general concern that defendant is bigger than he is. ...