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State v. Nye

Court of Appeals of Oregon

January 3, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
BRIAN KEITH NYE, Defendant-Appellant.

          Argued and submitted July 31, 2018

          Klamath County Circuit Court 16CR01856 Marci Warner Adkisson, Judge.

          John Evans, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Jacob Brown, 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 Powers, Judge, and Garrett, Judge pro tempore.

         Case Summary:

         Defendant appeals a judgment of conviction for possession of methamphetamine, ORS 475.894, assigning error to the trial court's denial of his motion to suppress evidence obtained when the officer conducted a patdown of defendant. Defendant argues that the nonconsensual patdown was not justified by the officer-safety exception to the warrant requirement of Article I, section 9, of the Oregon Constitution.

         Held:

         The trial court erred in denying defendant's motion. The state did not present specific and articulable facts to show why defendant's furtive movements, demeanor, and bulges in his pockets posed an immediate threat of serious physical injury. Reversed and remanded.

         Reversed and remanded.

         [295 Or.App. 560] GARRETT, J. pro tempore

         Defendant appeals a judgment of conviction for possession of methamphetamine, ORS 475.894. In a single assignment of error, defendant challenges the trial court's denial of his motion to suppress evidence discovered during a traffic stop, arguing, among other things, that the officer's patdown of defendant that led to the discovery of the evidence was unlawful. For the reasons explained below, we agree with defendant and reverse.

         We review a trial court's denial of a motion to suppress for legal error and are bound by the trial court's findings if they are supported by evidence in the record. State v. Parnell, 278 Or.App. 260, 261, 373 P.3d 1252 (2016) (citing State v. Regnier, 229 Or.App. 525, 527, 212 P.3d 1269 (2009)). If the trial court did not make express findings of fact, we "presume that the facts were decided in a manner consistent with the trial court's ultimate findings." Id. We state the facts in accordance with that standard.

         The relevant facts are undisputed and based on testimony presented at the hearing on defendant's motion to suppress and a recording of the traffic stop entered into the record. State Trooper Hargis initiated a traffic stop after witnessing a car cross the yellow center line of the road, a traffic violation. Hargis approached the car and immediately smelled alcohol and marijuana. He asked both the driver, Ramirez, and the passenger, defendant, "who has [an] open container?" Defendant admitted to drinking beer earlier and having a cup of beer in the center console, another traffic violation. Hargis asked for identification, registration, and proof of insurance ...


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