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State v. Bese

Court of Appeals of Oregon

December 5, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
JAMES ROBERT BESE, Defendant-Appellant.

          Argued and submitted July 31, 2018

          Yamhill County Circuit Court 15CR54219 John L. Collins, Judge.

          Erin J. Snyder Severe, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

          Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. Also 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:

         Defendant appeals from a judgment of conviction for carrying a concealed weapon and felon in possession of a restricted weapon, asserting that the trial court erred by denying his motion to suppress. Defendant argues that the officer stopped him unlawfully when the officer took defendant's knife from his waistband, placed it on the hood of his patrol car, and continued to question him about possession of drugs without having reasonable suspicion.

         Held:

         Because defendant was stopped when the officer removed and retained defendant's knife and placed it on the hood of his patrol car while continuing to question him, and because that stop was not supported by reasonable suspicion that defendant possessed a controlled substance, the trial court erred in denying defendant's motion to suppress.

         Reversed and remanded.

         [295 Or.App. 255] POWERS, J.

         Defendant appeals from a judgment of conviction for carrying a concealed weapon, ORS 166.240, and felon in possession of a restricted weapon, ORS 166.270(2), asserting that the trial court erred by denying his motion to suppress. As explained below, we agree with defendant that the officer stopped him unlawfully when the officer took defendant's knife from his waistband, placed it on the hood of the patrol car, and continued to question him about possession of drugs without having reasonable suspicion. Accordingly, we reverse and remand.

         We review the denial of a motion to suppress for errors of law, and we are bound by the trial court's findings of fact so long as they are supported by constitutionally sufficient evidence in the record. State v. Maciel-Figueroa, 361 Or. 163, 165-66, 389 P.3d 1123 (2017). Where the trial court did not make express findings and there is evidence in the record from which a finding could have been decided in more than one way, we will presume that the court decided the facts consistent with its ultimate conclusion. Id. at 166; see also Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). We describe the facts in a manner consistent with those standards.

         Officer Blair of the Carlton Police Department was dispatched to investigate a report of a suspicious person walking southbound on Highway 47 that "appeared to be tweaking." The caller had reported to dispatch that a suspicious person was walking near the caller's driveway, and that the suspicious person told the caller that he was on his ...


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