and submitted February 21, 2017
County Circuit Court 14C42177 Thomas M. Hart, Judge.
Melichar, Deputy Public Defender, argued the cause for
appellant. Also on the briefs was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
A. Salmon, Assistant Attorney General, argued the cause for
respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Aoyagi, Presiding Judge, and Egan, Chief Judge, and Hadlock,
Or.App. 278] Case Summary: Defendant, who was convicted after
a stipulated facts trial of one count of possession of
methamphetamine, ORS 475.894, appeals, assigning error to the
denial of a motion to suppress evidence. The dispositive
issue reduces to whether an offcer's request for consent
to frisk defendant for weapons during a criminal
investigatory stop unlawfully extended that stop.
Held: The trial court did not err. The offcer's
request was based on an objectively reasonable perception of
"circumstance-specifc concerns for [his] safety"
and an objectively reasonable "deci[sion] that [that
request] was necessary to address that danger."
State v. Jimenez, 357 Or. 417, 429-30, 353 P.3d 1227
(2015); see also State v. Miller, 363 Or. 374, 381,
422 P.3d 240, adh'd to as modifed on recons, 363
Or. 742, 428 P.3d 899 (2018).
Or.App. 279] EGAN, C. J.
who was convicted after a stipulated facts trial of one count
of possession of methamphetamine, ORS 475.894, appeals,
assigning error to the denial of a motion to suppress
evidence. As ultimately framed by the parties on appeal, the
dispositive issue reduces to whether an officer's request
for consent to frisk defendant for weapons during a criminal
investigatory stop unlawfully extended that stop. We conclude
that the officer's request was based on an objectively
reasonable perception of "circumstance-specific concerns
for [his] safety" and an objectively reasonable
"deci[sion] that [that request] was necessary to address
that danger." State v. Jimenez, 357 Or. 417,
429-30, 353 P.3d 1227 (2015); see also State v.
Miller, 363 Or. 374, 381, 422 P.3d 240, adh'd to
as modified on recons, 363 Or. 742, 428 P.3d 899 (2018).
Accordingly, we affirm.
an officer's actions effected an unlawful extension of a
stop is a question of law, which we review for errors of law.
State v. RodgersIKirkeby, 347 Or. 610, 625, 227 P.3d
695 (2010). The facts material to our review are undisputed.
early evening of April 1, 2014, Oregon State Police Sergeant
Plummer was on patrol near Shaw, in Marion County. Plummer, a
highly-experienced officer with nearly 25 years' service
in the Patrol Services Division and who regularly patrolled
in the Shaw area, noticed a pickup truck that he did not
recognize pulled over to the side of a rural road. His
attention heightened when, after he had passed the vehicle,
the pickup "pulled a U-turn." Plummer followed and
noticed, when the pickup stopped at an intersection and later
slowed at a railroad crossing, that one of its brake lights
was not working. Plummer stopped the pickup for that traffic
then approached the pickup from the passenger
side. As he did so, it "was still light
outside" and traffic was light. Defendant was the
driver, and with him were two passengers, a man and a woman;
the windows were rolled [295 Or.App. 280] down. Plummer
explained why he had initiated the stop and asked for
defendant's driver's license, registration, and proof
of insurance-and, as he did so, Plummer smelled what he
believed to be the odor of "unused" (as opposed to
"burnt" or "smoked") methamphetamine
"coming from inside the vehicle." The odor
"wasn't overwhelming," but "it was enough
to get [Plummer's] attention." After Plummer
obtained the documents from defendant, but before he returned
to his patrol car to run a check on that information, another
officer radioed to ask if Plummer "needed a cover
unit." Plummer responded that he did.
ensuing records check disclosed no license suspensions,
outstanding warrants, or such concerning information as
assaultive conduct against police officers. But for the smell
of methamphetamine, at that point Plummer would ordinarily
have issued a warning about the equipment violation, and
defendant would have been free to go. Instead, Plummer
returned to the pickup and, because he believed he had
reasonable suspicion of possession of methamphetamine (though
he had no "indication of which of the three persons in
the truck had the methamphetamine"), Plummer asked
defendant to step out of the vehicle to talk with him.
who had been fully "cooperative" during the
encounter, complied. Plummer spoke with defendant at the rear
of the pickup, to separate defendant from his passengers, and
told defendant that he had smelled the odor of
methamphetamine coming from inside the pickup and wanted to
talk with defendant and his passengers about that odor.
Although defendant responded that he "didn't have
any problem with that," his demeanor changed once
Plummer "brought up the methamphetamine." From that
point in the encounter, defendant "stiffened,"
becoming "more nervous" and "more rigid,"
"nervously looking side to side and away," avoiding
eye contact with Plummer and, instead, "look[ing] at his
peer" in the cab of the pickup.
Or.App. 281] Defendant also assumed a different and
"unusual" body posture, which Plummer described as
someone "get [ting] in that fight or flight mode."
To Plummer, defendant appeared to be "starting to
calculate whether [he] should stay, whether [he] should run,
whether [he] should fight [.]" For reasons amplified
below, see 295 Or.App. at__, that change in
defendant's demeanor and posture- which deviated from the
typical "reasonable arc of movement"-made Plummer
"nervous." Plummer "didn't want
[defendant] reaching into his pants
pockets." Accordingly, Plummer asked defendant if he
could frisk the area of his pants pockets "for my
safety" Defendant responded affirmatively.
then frisked defendant's pants pocket area and felt an
object that was similar in shape and dimensions to either an
inhaler or a drug pipe. When Plummer asked defendant what the
object was, defendant replied that it was "something to
hold keys with" and agreed to take the object out so
Plummer could see it. As defendant started to pull the object
(which was, in fact, a hollow key holder) from his pocket,
its lid split, momentarily revealing what appeared to be the
cap of a syringe, and Plummer smelled the odor of
methamphetamine. When Plummer told defendant that he had
smelled methamphetamine and, ultimately, that "he could
open [the container] or [Plummer] could," defendant
began to call out to the woman passenger in the pickup for
his cell phone so he could call an attorney. Plummer,
concerned that the encounter was "heightening,"
ordered defendant to place his hands on the hood of the
patrol car. Plummer then removed the container from
defendant's pocket and opened it; inside was a used
syringe and what proved to be crystal methamphetamine.
Or.App. 282] Defendant was charged with one count of
possession of methamphetamine. He moved to suppress the
evidence discovered as a result of the frisk. In so moving,
defendant asserted, inter alia, both that (1)
Plummer lacked reasonable suspicion of drug-related crimes
and, thus, could not extend and expand the predicate traffic
stop on that basis; and (2) the request for consent to a
frisk was not justified by sufficient officer safety
state remonstrated that (1) given the ambient odor of
methamphetamine in the pickup, the stop was lawfully extended
to investigate drug-related crimes; and (2) the request for
consent to an officer safety related frisk was lawful under
the construct adopted in State v. Bates, 304 Or.
519, 524, 747 P.2d 991 (1987). At no time before the trial court
did the state contend that Plummer's request for consent
to frisk was based on a belief that the frisk could yield
evidence of drug-related crimes; rather-perhaps because
Plummer had explicitly phrased, and framed, his request for
consent to frisk by reference to "my safety"-the
state relied solely on an officer safety justification for
suppression hearing, Plummer was the sole witness. In
addition to recounting the circumstances recounted above, he
also, as set out below, 295 Or.App. at, testified regarding
the dangers of traffic stops generally as well as his
perception and assessment of those risks attending his
encounter with defendant specifically.
trial court denied the motion to suppress, concluding in part
that the request for consent to "pat [defendant] down
for officer safety" was lawful because Plummer had
"developed a reasonable suspicion that Defendant may be
in possession of a weapon or some other instrument capable of
causing physical injury." As noted, defendant was
subsequently convicted, following a stipulated facts trial,
of possession of methamphetamine, and this appeal ensued.
Or.App. 283] On appeal, and in the light of the Supreme
Court's intervening issuance of Jimenez and
Miller, the parties have refined their
positions. Defendant no longer disputes that, given
the odor of methamphetamine in the pickup, Plummer had
reasonable suspicion that "the [pickup] contained-or
that one of its occupants possessed-methamphetamine."
Rather, defendant's sole, ultimate contention is that
Plummer's request for consent to frisk did not comport
with the standards established in Jimenez and
reiterated in Miller and, thus, unlawfully extended
that stop, even if that stop had morphed into a criminal
state initially countered with two principal responses.
First, the state asserted that the Jimenez
construct, which was announced in the context of a traffic
stop, should not be extended to criminal-investigatory stops.
That contention has now been foreclosed by Miller,
in which the Supreme Court, without qualification, applied
Jimenez to circumstances in which, "[b]ased on
his initial encounter with defendant, the officer developed
reasonable suspicion that defendant had committed the
crime" of driving under the influence of
intoxicants" (DUII). 363 Or at 377.
the state asserted, and continues to assert, that, in the
totality of the circumstances, Plummer's request
satisfied Jimenez's requisites. In that
regard, we do not understand the state to contend on
appeal-as it did not do [295 Or.App. 284] before the trial
court, see 295 Or.App. at-that Plummer's request
could be alternatively justified as based on a reasonable
suspicion that a frisk would reveal evidence of drug
possession. Accord Jimenez, 357 Or at
423-24 (noting that the state there did not argue that
"the trooper's inquiry was independently justified
by reasonable suspicion that defendant was in violation of
criminal laws pertaining to the possession of weapons").
Nor does the state dispute that, if the request for consent
to frisk did not meet Jimenez's dictates, that
request concomitantly effected an unlawful extension of the
stop, requiring suppression.
first to Jimenez. There, an officer stopped the
defendant, who was dressed in clothing that the officer
thought might indicate gang affiliation and could conceal the
presence of weapons, for a jaywalking violation at an
intersection in a high-crime area with "a lot of recent
gang activity." 357 Or at 419-20, 430. After some brief
conversation, the officer asked the defendant whether he
"ha[d] any weapons on [him]" and defendant