and submitted February 21, 2018
Multnomah County Circuit Court 16CR30364; Henry Kantor,
M. Du Clos, 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
K. Contreras, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Powers, Presiding Judge, and Ortega, Judge, and Mooney,
appeals from a judgment of conviction for unlawful possession
of methamphetamine, ORS 475.894(1). He assigns error to the
trial court's denial of his motion to suppress and argues
that the stopping deputy unlawfully extended the traffic stop
by (1) inquiring into the presence of weapons and (2)
requesting consent to search defendant's vehicle. The
state argues that the deputy's questions were justified
by officer safety concerns. Held: The trial court
did not err. The deputy articulated
"circumstance-specific" concerns for his safety and
his decisions to inquire into the presence of weapons and
request consent to search were "objectively
reasonable." Therefore, because both inquiries were
justified by officer-safety concerns, the deputy did not
unlawfully extend the stop.
Or.App. 184] POWERS, P. J.
criminal case, defendant appeals from a judgment of
conviction for unlawful possession of metham-phetamine, ORS
475.894(1), and assigns error to the trial court's denial
of his motion to suppress. The issue before us is whether the
arresting deputy's inquiry into the presence of weapons
and subsequent request for consent to search defendant's
vehicle unlawfully extended the traffic stop in violation of
defendant's state constitutional rights. We hold that the
trial court did not err in concluding that the deputy's
inquiries were permissible for officer safety concerns and,
therefore, we affirm.
review the denial of a 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 summarize the
facts consistent with those standards.
after midnight, Deputy Jewell was monitoring traffic in the
Linnton area of Portland and pulled over a suspicious dark
green Jeep Grand Cherokee with an expired registration tag.
According to Jewell, the Jeep was suspicious because, while
the deputy was parked on the side of the road, the Jeep had
driven past him twice within a short period of time. Jewell
noticed the expired registration tag on the third time that
the Jeep passed. Jewell turned on his patrol lights, but
defendant did not immediately pull over and continued driving
before turning into a parking lot.
approached defendant to ask for his driver's license,
registration, and insurance, Jewell observed that defendant
was "fidgeting around in his seat, moving very quickly,
looking around the vehicle, [and] shifting his [300 Or.App.
185] weight." Jewell described this as unusual behavior
for a traffic stop. Jewell requested defendant's
driver's license, registration, and insurance, which
defendant provided. Defendant then volunteered that his
driver's license was invalid. In looking at the
driver's license, Jewell verified that it was, in fact,
expired, and also saw that the insurance card was photocopied
and "appeared altered" because "[t]here were
markings over the letters and numbers."
on defendant's unusual behavior, Jewell asked defendant
why he was nervous, and defendant responded that he was
stopped for the "same violations" and arrested for
carrying a concealed handgun "several days ago."
Jewell became concerned that defendant might be currently
carrying a concealed handgun or that there might be weapons
in the vehicle and decided to ask him as much. Jewell asked
defendant if there were weapons inside his Jeep, and
defendant replied, "[N]no, there's no guns."
Jewell said that that was not his question and again asked if
there were weapons in the Jeep. Defendant again replied,
"[T]here's no guns."
returned to his patrol car to request additional officers to
respond as cover units, conduct a records check, and begin
writing a traffic citation. However, he did not complete the
citation and instead re-approached defendant and requested
defendant's consent to search the Jeep for weapons.
Defendant consented. Once back-up arrived, Jewell searched
the Jeep and found a pistol magazine and two "revolver
speed loaders," all loaded with ammunition, as well as a
"fixed blade, double-edged dagger." In the glove