and submitted November 21, 2017
Jackson County Circuit Court 14CR15300, 14CR24518 Timothy
M. Reese, 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
Jonathan N. Schildt, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
Ortega, Presiding Judge, and Egan, Chief Judge, and Powers,
Or. App.764] Case Summary: Defendant appeals from a judgment
of conviction for unlawful possession of heroin, ORS 475.854,
and unlawful possession of methamphetamine, ORS 475.894,
asserting that the trial court erred in denying her motion to
suppress evidence obtained during a traffic stop that she
contends was unlawfully extended because the
"officer-safety" exception to the warrant
requirement did not justify the officer's actions. The
state responds that the officer's actions were reasonably
related to the traffic investigation and were therefore
lawful under State v. Jimenez, 357 Or. 417, 353 P.3d
1227 (2015). Alternatively, the state argues that the
officer's actions were justified because he had
reasonable suspicion that defendant possessed a controlled
substance. Held: The trial court erred in denying
defendant's motion to suppress. The officer's
requests that defendant move her feet were more intrusive
than the circumstances required and were therefore not
objectively reasonable under Jimenez. Moreover, the
facts relied on by the officer did not support an objectively
reasonable suspicion of possession of a controlled substance.
Or. App.765] ORTEGA, P. J.
consolidated appeal, defendant challenges her convictions for
unlawful possession of heroin, ORS 475.854, and unlawful
possession of methamphetamine, ORS 475.894. In case number
14CR15300, defendant asserts that the trial court erred in
denying her motion to suppress evidence obtained during a
traffic stop that she contends was unlawfully extended
because the "officer-safety" exception to the
warrant requirement did not justify the officer's
actions. We conclude that the trial court erred in
denying defendant's motion and, accordingly, reverse and
review the denial of a motion to suppress for legal error and
are bound by the trial court's explicit and implicit
factual findings if evidence in the record supports them.
State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421
(1993). Accordingly, we state the facts consistently with the
trial court's factual findings.
8:00 p.m., while patrolling an area of Medford known to have
"a lot of drug and criminal activity," Officer
Oiler noticed two people in a parked car in an
"alleyway" with a "building on one side"
and an "empty lot" on the other. Defendant was in
the driver's seat, and a man was in the passenger seat.
The car did not have a front license plate, a traffic
violation under ORS 803.540. State v. Blueback, 291
Or.App. 779, 784, 422 P.3d 385 (2018). Oiler initiated a
traffic stop by pulling in front of the car so that his car
faced the parked car. He got out of his car and, as he
approached, saw both defendant and the passenger "hiding
or concealing or obtaining * * * items around their waist,
around the areas [he] couldn't see within the
vehicle," which Oiler characterized as "furtive
movements." Oiler knew that weapons are commonly hidden
and concealed around the waist. He ordered them to "stop
moving" and keep their hands where he could see them,
and they complied. He then [296 Or. App.766] called for a
cover officer because he was concerned for his safety and
"wanted another set of eyes." They both appeared
nervous, and Oiler saw "fresh track marks" or
needle marks on defendant's arms. Oiler asked for their
names but did not take any steps to process the citation for
the traffic violation while waiting for the cover officer.
During that time, Oiler waited at the side of the car, and
the "passenger kept moving towards his waist line."
Defendant also dropped something "like a candy box"
on the floor and shuffled something around with her feet.
Oiler testified that he did not believe that the candy box
was a weapon. Rather, the candy box was as small as a credit
card or as big as a "movie box" and could have had
a number of things in it, including a weapon. Oiler again
told them to stop moving.
Officer Dennis arrived, about two and a half minutes later,
Oiler briefed Dennis and told him to watch the passenger
while Oiler approached defendant because "there might be
weapons present." Oiler then approached defendant and
asked her, "Hey, do you mind moving your right
foot?" She moved her right foot but "moved her left
foot over" to where her right foot had previously been.
Oiler then asked, "Hey, will you move your left
foot?" When defendant moved her left foot, Oiler saw a
syringe filled with a substance that Oiler believed to be
heroin. Defendant was arrested for possession of heroin and
later made incriminating statements.
hearing on defendant's motion to suppress the evidence
obtained during the stop, Oiler testified that he had about
11 years of law enforcement experience in Oregon and Arizona,
including "advanced training in narcotics" and
experience training other officers. He testified that he
waited for Dennis to begin the traffic investigation because
he "had officer safety issues" that had to be dealt
with first— that is, being in a high crime area,
outnumbered, alone, and witnessing the occupants make
movements towards their waistlines where weapons are commonly
kept. He also explained that police contacts with people in
cars are some of the "more dangerous" encounters
because of the number of areas in which things can be
concealed. He further testified that by the time Dennis
arrived, he believed there was a "strong
possibility" that there were weapons in the car. On [296
Or. App.767] cross-examination, when asked how he addressed
his safety concerns, Oiler responded that he did so by asking
defendant to move her feet because he "believed that she
was hiding something with her foot."
argued that Oiler unlawfully extended the traffic stop
without reasonable suspicion of criminal activity and that
the extension was not justified by the officer-safety
exception to the warrant requirement. The state responded
that Oiler's actions were justified by reasonable
suspicion of a crime and officer-safety concerns and that the
two issues are "intertwined together." The court
denied the motion without making any express factual
findings, and defendant entered a conditional plea of guilty.
appeal, the parties generally renew the arguments they made
below. Defendant argues that Oiler's actions were not
reasonably related to the basis for the traffic stop and were
unlawful because they were not justified by the
officer-safety exception to the warrant requirement as
articulated in State v. Bates,304 Or. 519, 524, 747
P.2d 991 (1987). The state counters that Oiler's actions
were reasonably related to the traffic investigation and were
therefore lawful under State v. Jimenez, 357 Or.
417, 426, 353 P.3d 1227 (2015). ...