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State v. O'Dell

Court of Appeals of Oregon

April 18, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
RANDALL THOMAS O'DELL, Defendant-Appellant.

          Argued and submitted December 21, 2017

          Washington County Circuit Court C152472CR, C142256CR; Suzanne Upton, Judge.

          Eric Johansen, 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.

          Lauren P. Robertson, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

         Case Summary: In this consolidated appeal, defendant challenges his conviction for unlawful possession and unlawful delivery of a Schedule II controlled substance, ORS 475.752, and the revocation of his probation. Defendant assigns error to the trial court's denial of his motion to suppress evidence obtained during a traffic stop, arguing that the officer unlawfully extended the stop because the officer-safety exception to the warrant requirement did not justify the officer's order that he get out of his car so that the officer could remove a folding knife from his pocket. Held: The trial court erred. The officer's subjective belief that defendant posed an immediate threat of serious physical injury was not objectively reasonable, and therefore the officer-safety exception did not justify ordering defendant out of his car.

         Reversed and remanded.

         [291 Or. 360] ORTEGA, P. J.

         In this consolidated appeal, defendant challenges his conviction for unlawful possession and unlawful delivery of a Schedule II controlled substance, ORS 475.752, and the revocation of his probation.[1] Defendant asserts that the trial court erred in denying his motion to suppress evidence obtained during a traffic stop that he contends was unlawfully extended because the "officer-safety" exception to the warrant requirement did not justify the officer's request that he get out of his car so the officer could remove a folding knife from his pocket. We agree and, accordingly, reverse and remand.

         We review the denial of a motion to suppress for legal error and are bound by the trial court's explicit and implicit factual findings if evidence in the record supports them. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993). Accordingly, we state the facts consistently with the trial court's factual findings.

         Officer Rogers stopped defendant in Washington County for failure to make a complete stop at a stop sign. Rogers approached defendant on the driver's side and asked for his license, registration, and proof of insurance. Defendant produced his license. Rogers began questioning defendant about the car because defendant had an Oregon license but the car had Washington plates. Defendant told Rogers that the car belonged to his girlfriend. During the encounter, Rogers found that defendant was "abnormally nervous, " and while defendant was searching for his documents, Rogers asked for consent to search the car. Defendant questioned why that was necessary, and Rogers noticed that defendant had nervous tics and that his hands had begun to shake. However, defendant was cooperative and did not appear to be under the influence of any intoxicants.

         Defendant told Rogers that he could not find the registration and insurance information and, soon after, [291 Or. 361] Officer Matias arrived at the scene. It is unclear from the record whether he showed up on his own or in response to a request for backup. When Matias approached the passenger side of the car, he noticed a standard folding knife in defendant's front pocket, which was folded with only a small portion exposed. Rogers described the knife as a "standard folding knife" with a pocket clip, which he believed could cause serious physical injury. Matias mentioned the knife to Rogers, who then asked defendant to step out of the car even though he was not under arrest; at that point, Rogers was only concerned about his safety and defendant's ability to use the knife "very quickly." According to Rogers, "watching [defendant's] *** nervous behaviors and the elusive questions about looking in the car, " and the fact that defendant did not disclose that he had a knife, added to the officers' concern for their safety. Defendant got out of the car, walked behind it, and Rogers "put him in a standard position for control and a patdown to remove the knife."

         After removing the knife, Rogers continued to pat down defendant's pockets. Rogers felt a large container in the same pocket that had contained defendant's knife, but could not identify it as a weapon. When Rogers asked defendant what it was, defendant told him it was a pill bottle, and defendant consented to the removal of the bottle from his pants pocket. Rogers asked defendant if he could check to ensure that the pills matched defendant's prescription because he was concerned that defendant was illegally selling them based on how they were packed. Defendant consented, and Rogers confirmed that the pills did not match the prescription.

         Matias then asked defendant for consent to a search of his car because, at that point, the investigation had shifted to finding evidence of "sale or distribution." Defendant consented, and Rogers found a "tin foil with burn marks on it, * * * black snaking, which is consistent with * * * either smoking pills or heroin use, " and defendant's cell phone. After defendant consented to a search of his phone, Rogers read incriminating text messages between defendant and two other individuals and, when Rogers asked him to explain the messages, defendant confessed to selling the pills illegally. Rogers then arrested defendant, administered Miranda [291 Or. 362] warnings, and took him to the police ...


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