weapons inquiry in Oregon

2019Although in Miller we ultimately concluded that the officer had a rea- sonable safety concern under the specific circumstances (and, thus, that the weapons inquiry had been justified), we specifically discussed the constitutional significance of addi- tional verbal inquiries during the course of a traffic stop: “Although an officer’s verbal inquiries ‘are not searches and seizures and thus by themselves ordinarily do not impli- cate Article I, section 9,’ when a person is already stopped, the person ‘is not free unilaterally to end the encounter and leave whenever he or she chooses,’ so questi

2016He further argued that, under Rogers/Kirkeby, 347 Or 610 , the officer could not ask questions about unrelated matters during the DUII stop, and that, under State v. Bates, 304 Or 519 , 747 P2d 991 (1987), the officer could not ask questions for officer safety reasons unless he had a reasonable suspicion, based upon specific and articulable facts, that defendant posed an immediate threat of serious physical injury. 2 Defense counsel argued that the fact that defendant had a concealed handgun license did not justify the officer’s weapons inquiry.

2016As the Supreme Court explained in State v. Amaya, 336 Or 616, 625 , 89 P3d 1163 (2004), “an officer’s actions, even if authorized by ORS 810.410 (3)(d), nevertheless must comply with Article I, section 9 [.] ” We recognize that these cases were decided before Jimenez and under the Bates standard.

2016As the Supreme Court explained in State v. Amaya, 336 Or 616, 625 , 89 P3d 1163 (2004), “an officer’s actions, even if authorized by ORS 810.410 (3)(d), nevertheless must comply with Article I, section 9 [.] ” We recognize that these cases were decided before Jimenez and under the Bates standard.

2015That does not mean, however, that the trooper’s weapons inquiry was not reasonably related to and reasonably necessary to effectuate his traffic investigation, as Watson requires in this context. 12 In Watson , the officer had probable cause to believe that the defendant motorist had committed a traffic violation and had authority to stop and seize the defendant. 353 Or at 781 .

2015That does not mean, however, that the trooper’s weapons inquiry was not reasonably related to and rea- sonably necessary to effectuate his traffic investigation, as Watson requires in this context. 12 In Watson, the officer had probable cause to believe that the defendant motorist had committed a traffic violation and had authority to stop and seize the defendant. 353 Or at 781 .

2022We appreciate, as the Supreme Court has observed, that the test for whether an officer’s questions about the presence of weapons is permissible “is not a demanding one.” State v. Marcell, 306 Or App 124, 125 , 473 P3d 143 (2020) (quoting State v. Pichardo, 360 Or 754, 762 , 388 P3d 320 (2017)).

2022We appreciate, as the Supreme Court has observed, that the test for whether an officer’s questions about the presence of weapons is permissible “is not a demanding one.” State v. Marcell, 306 Or App 124, 125 , 473 P3d 143 (2020) (quoting State v. Pichardo, 360 Or 754, 762 , 388 P3d 320 (2017)).

2022Moreover, “the officer’s Nonprecedential Memo Op: 322 Or App 606 (2022) 611 safety concerns need not arise from facts particular to the detained individual; they can arise from the totality of the circumstances that the officer faces[,]” including concerns for the safety of others.

2021Cases evaluating whether an officer had rea- sonable suspicion that a defendant committed a crime are Cite as 310 Or App 672 (2021) 683 of little relevance when evaluating a circumstance-based officer-safety concern.

2019State v. Aguirre-Lopez, 291 Or App 78, 84-85 , 419 P3d 751 (2018). 2 Article I, section 9, of the Oregon Constitution provides: “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirma- tion, and particularly describing the place to be searched, and the person or thing to be seized.” 188 State v. South In State v. Jimenez, 357 Or 417, 430 , 353 P3d 1227 (2015), the Supreme Court held that in order to “demonstrate that an off

2019State v. Aguirre-Lopez, 291 Or App 78, 84-85 , 419 P3d 751 (2018). 2 Article I, section 9, of the Oregon Constitution provides: “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirma- tion, and particularly describing the place to be searched, and the person or thing to be seized.” 188 State v. South In State v. Jimenez, 357 Or 417, 430 , 353 P3d 1227 (2015), the Supreme Court held that in order to “demonstrate that an off

2018Miller , 277 Or.

2016The court further observed that the statistics did not “include the total number of stops that the officers conducted or the number of stops that the officers conducted without incident!,]” id. at 425-26 , and quoted Justice Stevens’ statement that “‘the number of stops in which an officer is actually at risk is dwarfed by the far greater number of routine stops.’” Id. at 426 n 9 (quoting Maryland v. Wilson, 519 US 408, 418 , 117 S Ct 882 , 137 L Ed 2d 41 (1997) (Stevens, J., dissenting)). 5 In this case, as in Jimenez , the state has failed to present an evidentiary basis upon which we can co

2016The court further observed that the statistics did not “include the total number of stops that the officers conducted or the number of stops that the officers conducted without incident!,]” id. at 425-26 , and quoted Justice Stevens’ statement that “‘the number of stops in which an officer is actually at risk is dwarfed by the far greater number of routine stops.’” Id. at 426 n 9 (quoting Maryland v. Wilson, 519 US 408, 418 , 117 S Ct 882 , 137 L Ed 2d 41 (1997) (Stevens, J., dissenting)). 5 In this case, as in Jimenez , the state has failed to present an evidentiary basis upon which we can co

2016He further argued that, under Rogers/Kirkeby, 347 Or 610 , the officer could not ask questions about unrelated matters during the DUII stop, and that, under State v. Bates, 304 Or 519 , 747 P2d 991 (1987), the officer could not ask questions for officer safety reasons unless he had a reasonable suspicion, based upon specific and articulable facts, that defendant posed an immediate threat of serious physical injury. 2 Defense counsel argued that the fact that defendant had a concealed handgun license did not justify the officer’s weapons inquiry.

2016He further argued that, under Rogers/Kirkeby, 347 Or 610 , the officer could not ask questions about unrelated matters during the DUII stop, and that, under State v. Bates, 304 Or 519 , 747 P2d 991 (1987), the officer could not ask questions for officer safety reasons unless he had a reasonable suspicion, based upon specific and articulable facts, that defendant posed an immediate threat of serious physical injury. 2 Defense counsel argued that the fact that defendant had a concealed handgun license did not justify the officer’s weapons inquiry.

2016See id. at 426 (in order to justify an officer’s weapons inquiry during a traffic stop, the state must establish that the officer reasonably suspected that “the officer’s safety or the safety of the public [was] threatened”); see also id. at 434 (Kistler, J., concurring) (the state must prove that the circumstances of the particular stop “pose[d] a sufficient risk of harm to the officer or others present”); State v. Steele, 274 Or App 710, 711 , 360 P3d 1287 (2015) (applying Jimenez in the context of a criminal stop).

2016See id. at 426 (in order to justify an officer’s weapons inquiry during a traffic stop, the state must establish that the officer reasonably suspected that “the officer’s safety or the safety of the public [was] threatened”); see also id. at 434 (Kistler, J., concurring) (the state must prove that the circumstances of the particular stop “pose[d] a sufficient risk of harm to the officer or others present”); State v. Steele, 274 Or App 710, 711 , 360 P3d 1287 (2015) (applying Jimenez in the context of a criminal stop).

2015Moreover, the state also concedes that, in light of our decision in State v. Kimmons, 271 Or App 592, 598-99 , 352 P3d 68 (2015), it is of no consequence that, in Jimenez , the weapons inquiry occurred during a traffic investigation.

2015Moreover, the state also concedes that, in light of our decision in State v. Kimmons, 271 Or App 592, 598-99 , 352 P3d 68 (2015), it is of no consequence that, in Jimenez , the weapons inquiry occurred during a traffic investigation.

2004Because the board did not indicate in its order whether it would have revoked petitioner’s parole on the basis of the weapons violation alone, and, if so, “[b]ecause the erroneous finding might have influenced the severity of the Board’s ultimate sanction following revocation,” Mageske v. *657 Board of Parole, 173 Or App 209, 215 , 21 P3d 150 (2001), we remand for further consideration. 6 Order revoking parole vacated; remanded for further proceedings. 1 Petitioner claims that the camera contained no film or memory card and that he was only pretending to videotape the girls in a conscious effo

2004Because the board did not indicate in its order whether it would have revoked petitioner’s parole on the basis of the weapons violation alone, and, if so, “[b]ecause the erroneous finding might have influenced the severity of the Board’s ultimate sanction following revocation,” Mageske v. *657 Board of Parole, 173 Or App 209, 215 , 21 P3d 150 (2001), we remand for further consideration. 6 Order revoking parole vacated; remanded for further proceedings. 1 Petitioner claims that the camera contained no film or memory card and that he was only pretending to videotape the girls in a conscious effo