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State v. Leach

Court of Appeals of Oregon

October 31, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
JEREMIAH LEACH, Defendant-Appellant.

          Submitted December 21, 2017

          Jefferson County Circuit Court 16CR18793; Gary Lee Williams, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Neil F. Byl, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Carson L. Whitehead, Assistant Attorney General, fled the brief for respondent.

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

         Case Summary:

         Defendant appeals from a judgment of conviction for unlawful manufacture of methamphetamine within 1, 000 feet of a school, ORS 475.888, and unlawful possession of methamphetamine, ORS 475.894, assigning error to the trial court's denial of his motion to suppress evidence obtained as a result of an officer's warrantless search of defendant's pocket. Defendant argues that the trial court erred when it concluded that the intrusion into his pocket was justified by the officer safety exception. Held: The trial court erred in determining that the search of defendant's pocket was justified by the officer's reasonable suspicion, based on specific and articulable facts, that defendant might pose an immediate threat of serious physical injury. The officer did not articulate why, after a patdown, an intrusion into defendant's pocket was objectively reasonable under the circumstances.

          [294 Or.App. 640] POWERS, J.

         Defendant appeals from a judgment of conviction for unlawful manufacture of methamphetamine within 1, 000 feet of a school (Count 1), ORS 475.888, and unlawful possession of methamphetamine (Count 3), ORS 475.894. He assigns error to the trial court's denial of his motion to suppress evidence obtained as a result of an officer's warrantless search of defendant's shorts pocket and subsequent search of his home pursuant to a warrant, arguing that the trial court erred when it concluded that the intrusion into his pocket was justified by the officer safety exception. We conclude that the trial court erred in determining that the search of defendant's pocket was justified by the officer's reasonable suspicion, based on specific and articulable facts, that defendant might pose an immediate threat of serious physical injury. Accordingly, we reverse and remand.

         We review the denial of defendant's motion to suppress for legal error and, in so doing, "we are bound by the trial court's factual findings if there is any constitutionally sufficient evidence in the record to support them." State v. Maciel-Figueroa, 361 Or. 163, 165-66, 389 P.3d 1121 (2017). To the extent that the trial court did not make express findings regarding disputed facts, we will presume that the court found the facts in a manner consistent with its ultimate conclusion, provided that the evidence would support such findings. Id. at 166. We describe the facts in a manner consistent with those standards of review.

         Officer Schulke responded to a report of a man and woman punching each other in the front yard of a residence. When Schulke arrived, he did not see anyone in the front yard, but he could hear a woman inside the residence "screaming frantically" like "bloody murder." The screaming persisted as Schulke approached the residence and entered through the front door. Schulke thought someone was being assaulted.

         Once inside, Schulke saw defendant on top of a woman, K, holding her down on the couch by her arms. K, who later was identified as defendant's wife, was still screaming, and Schulke noticed that her bottom lip was bleeding. Schulke then grabbed defendant in an attempt [294 Or.App. 641] to place his hands behind his back. Defendant pulled away from Schulke, tensed up, and said, "No." Schulke said, "Put your hands behind your back," but defendant again said, "No" and said that he was trying to help K. Schulke testified that defendant resisted his efforts to detain him, but was not combative. Eventually, Schulke subdued defendant by using an arm bar technique to force defendant onto the arm of the couch where Schulke was then able to handcuff defendant.

         Schulke explained to K that defendant was being "detained for [Schulke's] safety and for every [one] else's involved" until another cover unit arrived. Defendant calmed down after being placed in handcuffs and was cooperative with Schulke after that point. Schulke instructed K to remain seated and stay inside the house, as Schulke walked defendant toward his patrol vehicle outside. Schulke testified that, as a single officer, it is "very difficult to watch two people, especially somebody who's not listening to your commands," and explained that he separated the two people for his safety and K's safety, as well as to conduct an investigation. As they were walking, Schulke noticed a large bulge in defendant's left pocket, weighing down his gym shorts. Schulke thought that it might be something "heavy to increase the force of a punch." Schulke conducted a pat-down of defendant and reached into his pocket. He pulled out a large glass cylinder with a large crystal rock and powder inside, which was later tested and determined to be methamphetamine. Defendant was arrested for possession of methamphetamine and transported to jail.

         The following day, using information gathered from defendant's arrest, a detective applied for and was granted a search warrant for defendant's home. Upon executing the warrant, evidence of a methamphetamine lab was found, and ...


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