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State v. Miller

Supreme Court of Oregon

July 26, 2018

STATE OF OREGON, Petitioner on Review,
v.
WILLIAM P. MILLER, Respondent on Review.

          Argued and Submitted October 19, 2017

          On review from the Court of Appeals. (CC 110646662) (CA A149963) [*]

          Jamie K. Contreras, Assistant Attorney General, Salem, argued the cause and fled the brief for the petitioner on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Kali Montague, Deputy Public Defender, Offce of Public Defense Services, Salem, argued the cause and fled the brief for the respondent on review. Also on the brief was Ernest Lannet, Chief Defender.

          Before Walters, Chief Justice, and Balmer, Kistler, Nakamoto, Flynn, and Nelson, Justices. [**]

         [363 Or. 375] Case Summary:

         After the officer, who was lawfully investigating whether defendant had committed the crime of driving under the influence of intoxicants, asked defendant if he was carrying a firearm, defendant disclosed that he was carrying a knife. Defendant was convicted of carrying a concealed weapon, ORS 166.240. Defendant appealed the judgment of conviction on the basis that the officer's question about the firearm unlawfully extended the stop because the officer lacked an objectively reasonable, circumstance-specific perception that defendant posed a danger, as required by Article I, section 9, of the Oregon Constitution. The Court of Appeals reversed the conviction. Held: The state met its burden to prove that the officer in this case perceived a circumstance-specific danger so as to justify the officer's question about weapons. The officer explained the risk of performing fled sobriety tests, on the side of the road late at night, on a person whom the officer had reasonable suspicion to believe was intoxicated. Additionally, the state met its burden to prove that the officer's perception of danger and decision that a question about firearms was necessary were objectively reasonable.

         The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

         [363 Or. 376] FLYNN, J.

         The issue in this criminal case is whether a law enforcement officer, who was lawfully investigating whether defendant had been driving under the influence of intoxicants (DUII), unlawfully extended the investigatory stop by asking if defendant was carrying a firearm. In response to that question, defendant disclosed that he was carrying a knife, which led to his conviction for carrying a concealed weapon, ORS 166.240(1). Defendant contends that the officer's question unlawfully extended the stop because, the officer lacked an objectively reasonable, circumstance-specific perception that defendant posed a danger, as required by Article I, section 9, of the Oregon Constitution. See State v. Jimenez, 357 Or. 417, 353 P.3d 1227 (2015) (describing standard). The Court of Appeals agreed with defendant and reversed his conviction, emphasizing that nothing about defendant's conduct during the encounter gave the officer a reason to be concerned for his safety.

         We allowed the state's petition for review of that decision and now reverse. We held in Jimenez that the constitutional standard for an officer to ask a lawfully detained citizen about weapons is less demanding than the particularized reasonable suspicion that Article I, section 9, requires before the officer may search the citizen for weapons. 357 Or at 427-28. Article I, section 9, does not prohibit law enforcement officers from asking about the presence of weapons during a lawful stop if (1) "the officer perceived a circumstance-specific danger and decided that an inquiry about weapons was necessary to address that danger;" and (2) "the officer's perception and decision were objectively reasonable." Id. at 430. We conclude that the officer in this case perceived a circumstance-specific of danger, within the meaning of Jimenez, based on his explanation of the risk of performing late-night field sobriety tests on a person whom the officer reasonably suspected was intoxicated. We also conclude that the state met its burden to prove that the officer's perception of danger and decision that a question about firearms was necessary were objectively reasonable.

         [363 Or. 377] I. FACTUAL AND PROCEDURAL BACKGROUND

         In reviewing the trial court's denial of defendant's motion to suppress, we are bound by the court's findings of historical fact if the evidence in the record supports them. State v. Holdorf, 355 Or. 812, 814, 333 P.3d 982 (2014). To the extent that the trial court failed to make express findings on pertinent historical facts, we will presume that the trial court found those facts in a manner consistent with its ultimate conclusion. Id. In this case, the pertinent historical and procedural facts are undisputed, except as indicated.

         While defendant was driving late one night, a law enforcement officer[1] saw defendant's car hesitate before proceeding on a green light and then pull off to the side of the road. The officer pulled his marked patrol car in behind defendant's car and asked if defendant needed assistance. Based on his initial encounter with defendant, the officer developed reasonable suspicion that defendant had committed the crime of DUII. The officer asked defendant for his identification and returned to his own car to conduct a records check.

         The officer walked back to defendant and asked if he had a firearm with him.[2] In response, defendant indicated that he "had a knife on his boot, or leg." The officer removed two knives from defendant's boot. The officer then administered field sobriety tests to defendant. He ultimately determined that defendant was not intoxicated but cited defendant for carrying a concealed weapon in violation of ORS 166.240(1).[3]

         [363 Or. 378] Defendant moved to suppress the evidence that the officer had obtained as a result of his question about weapons. Defendant argued to the trial court that the officer's question had unlawfully extended the stop because the officer did not possess a "reasonable suspicion, based upon specific and articulable facts," that defendant posed an "immediate threat of serious physical injury." In support of that argument, defendant elicited testimony from the officer that nothing about defendant's conduct during the encounter had caused the officer to be concerned for his safety:

"[Defense Counsel:] So he had done absolutely nothing to give you concern that he might attack you at this point, had he?
"[Officer:] No, sir. "[Defense Counsel:] In fact, he was being civil and cooperative with you, ...

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