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State v. Kennedy

Court of Appeals of Oregon

March 8, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JOHN ALAN KENNEDY, Defendant-Appellant.

          Argued and submitted December 21, 2016

         Multnomah County Circuit Court 14CR14674; Jerry B. Hodson, Judge.

          Kyle Krohn, Deputy Public Defender, argued the cause for appellant. With him on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

         Case Summary: Defendant appeals a judgment of conviction on one count each of carrying a concealed weapon, ORS 166.240, and felon in possession of a restricted weapon, ORS 166.270(2). A police officer responded to a report of a vehicle that had driven off the road and into some bushes; further investigation revealed that the vehicle had been stolen. Witnesses described two men that had been with the vehicle earlier. Defendant, who was identified as one of those men, returned to the scene and walked towards the officer and witnesses. When defendant was approximately 30 feet away, the officer drew his firearm and ordered defendant to get on his knees and place his hands on his head. Defendant complied and remained in that position for several minutes until a cover officer arrived. The officer then patted defendant down and discovered a switchblade knife. On appeal, defendant challenges the trial court's denial of his motion to suppress evidence of the knife, contending that the patdown was not justified by the officer-safety exception to the warrant requirement. Held: The trial court erred in denying defendant's motion to suppress. Under the totality of the circumstances, the officer did not have an objectively reasonable belief that defendant posed an immediate threat of serious physical injury at the time of the search. Defendant was cooperative, in a submissive physical posture, and had not exhibited any aggressive behavior or suspicious movement. Moreover, by the time of the patdown, a cover officer had arrived, establishing the officers' control of the situation.

         Reversed and remanded.

          GARRETT, J.

         Defendant appeals a judgment of conviction on one count each of carrying a concealed weapon, ORS 166.240, and felon in possession of a restricted weapon, ORS 166.270(2). Defendant assigns error to the trial court's denial of his motion to suppress evidence. The issue on appeal is whether the trial court correctly ruled that a police officer's patdown of defendant was justified by the officer-safety exception to the warrant requirement. For the reasons explained below, we conclude that, under the totality of the circumstances, the officer did not have an objectively reasonable belief that defendant posed an immediate threat of serious physical injury. Accordingly, we reverse and remand.

         The facts are undisputed. Two witnesses called police regarding a vehicle that appeared to have driven off the road and into a thicket of blackberry bushes. Officer Dunbar responded to the scene and observed an empty vehicle with dealer license plates in the bushes, at the end of a rough dirt road. Dunbar called the dealer and learned that the vehicle had been stolen. The witnesses described two men who had been with the vehicle earlier and had then left the scene. While Dunbar was waiting for a tow truck to arrive, defendant walked up the road in the direction of Dunbar and the witnesses. The witnesses identified defendant as one of the men associated with the vehicle.

         Dunbar drew his firearm and ordered defendant to get on his knees and place his hands on his head. Defendant, who was approximately 30 feet away, complied, and remained in that position for several minutes. When a second officer arrived at the scene a few minutes later, Dunbar patted defendant down and discovered a switchblade knife. Defendant was charged with carrying a concealed weapon, ORS 166.240, and felon in possession of a restricted weapon, ORS 166.270(2).

         Defendant moved to suppress the evidence of the knife, arguing that the stop was unlawful because Dunbar lacked reasonable suspicion that defendant had committed a crime, and that the patdown was unlawful because it was not supported by reasonable suspicion that defendant posed a threat of serious physical injury at the time of the search. At the hearing, Dunbar testified that he was concerned for his safety because his cover officer was "minutes away, at best"; he knew from training and experience that "someone stealing a car can be extremely dangerous" and possess weapons; he found it unusual that defendant returned to the scene (a dead-end road with no businesses); the other person whom the two witnesses had connected to the car was unaccounted for; and defendant was walking straight toward him.

         The trial court denied defendant's motion. As to the patdown, the trial court explained:

"While the officer was waiting for a tow, he saw the defendant walking back on foot without a vehicle, again, in an area where there's no real other reason for somebody to be there and, therefore, it was reasonable for him to suspect that the defendant was, ...

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