and Submitted April 5, 2017, Tillamook High School,
County Circuit Court 14CR09300; Marilyn E. Litzenberger,
D. Robinson, 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
L. Smith, Deputy Solicitor General, argued the cause for
respondent. With him on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Armstrong, Presiding Judge, and Shorr, Judge, and Wilson,
appeals a judgment convicting him of unlawful possession of a
firearm, ORS 166.250. Defendant assigns error to the trial
court's denial of his motion to suppress evidence found
when police stopped and searched defendant without a warrant
near the scene of a recent shooting at a school. Defendant
argues that the trial court erred when it concluded that the
stop and search was justified under exceptions to the Article
I, section 9, warrant requirement of the Oregon Constitution,
including the officer safety and school safety exceptions,
voluntary consent, and the emergency aid exception.
Held: The trial court erred in denying the motion to
suppress. None of the Article I, section 9, exceptions
advanced by the state applies to the facts of this case.
First, the officer safety and school safety exceptions do not
apply because the police stopped [288 Or. 661] and searched
defendant based on general suspicion that defendant could
have been involved in the shooting rather than on objectively
reasonable suspicion, based on specifc and articulable facts,
that defendant in particular posed an immediate threat.
Second, defendant did not voluntarily consent to the search
by being near the school or by acquiescing to police orders.
Third, the emergency aid exception does not apply because the
police stopped and searched defendant in order to investigate
a threat, not out of a belief that doing so was necessary to
render immediate emergency aid to someone in need.
Or. 662] SHORR, J.
appeals a judgment convicting him of unlawful possession of a
firearm, ORS 166.250. On appeal, defendant assigns error to
the trial court's denial of his motion to suppress
evidence that a police officer found when he stopped and
searched defendant without a warrant. Defendant contends that
the trial court erred when it concluded that the search and
seizure was justified under a variety of exceptions to the
warrant requirement of Article I, section 9, of the Oregon
Constitution, including the officer safety exception,
voluntary consent, the emergency aid exception, and the
school safety exception. Because we conclude that none of
those exceptions apply, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
begin with the factual standard of review applicable in a
review of a decision on a motion to suppress evidence. We are
bound by the trial court's findings of historical fact
that are supported by constitutionally sufficient evidence.
State v. Vasquez-Villagomez, 346 Or. 12, 23, 203
P.3d 193 (2009). Further, "[i]n the absence of express
factual findings, we presume that the trial court decided the
disputed facts in keeping with its ultimate conclusion."
State v. Garcia. 276 Or.App. 838, 839, 370 P.3d 512
(2016). With that standard of review in mind, we state the
heard that a shooting had occurred at the high school where
his younger sister was a student. Defendant rushed to the
school to check on his sister. He had a handgun tucked into
the waistband of his pants and concealed under his shirt and
sweatshirt. When he arrived, defendant found an evacuation of
students and staff underway. Students and staff were moving
from the school to the church across the street. The
evacuation was supervised by police officers. One officer,
Sergeant Lofton, was supervising one of a number of patdown
areas organized on the church property. There was an ongoing
tactical response to the shooting at that time, and one
purpose of the patdown areas was to ensure that the shooter
or an accomplice did not escape by blending in with the
evacuees. To that end, Lofton had arranged into an orderly
line a disorganized mass of [288 Or. 663] students and staff
who had gathered across the street from the school. Each
person in the line was called forward in turn, ordered to put
their hands on their head, and patted down by an officer.
Officers patted down waistlines, lifted pant legs, lifted
jackets or other baggy clothing, and patted or searched any
other place that a weapon could have been concealed.
Lofton's role was to "mak[e] sure that the kids
[who] were searched went in front of me, and then went into
the safe area, " where they were interviewed by
detectives and then cleared to leave.
the evacuation process, Lofton spotted defendant, who had
arrived at the scene and was standing apart from the
organized line of evacuees. Lofton thought that defendant
might have "left [the] search line for some unknown
reason, [or] that he had never made it to my search line for
some reason and he was an unknown." Lofton and defendant
made eye contact, and defendant quickly looked off to the
side. Lofton then approached defendant and asked him what he
was doing. Defendant replied that he did not know where to
go. Defendant did not explain why he was there. Lofton
thought that defendant seemed nervous. At that point, Lofton
was "concerned" that defendant "could have
been involved in the shooting." Lofton told defendant,
"I want you to come back with me this way, " and
directed defendant over to the patdown area. When they
arrived at the patdown area, Lofton ordered defendant to lace
his fingers behind his head. Defendant hesitantly raised his
hands to the side of his head. Lofton touched defendant's
hands together behind his head and said "put your hands
together, " which defendant did. Apart from that moment
of hesitancy, defendant was "generally cooperative"
with Lofton's instructions. Lofton "grabbed
[defendant's] hands behind his head" to keep them
together and walked defendant a few more steps forward.
Lofton then decided to search defendant for weapons. Because
Lofton was concerned that he would be unable to feel a weapon
under defendant's baggy sweatshirt, he lifted
defendant's sweatshirt and shirt with one hand while
still gripping defendant's hands together behind his head
with the other. Lofton made no attempt to patdown defendant
first. Immediately upon lifting defendant's shirt, Lofton