State v. Ramirez

                                      195

    Argued and submitted July 9, 2019, reversed and remanded Juy 1, 2020


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                       SAMUEL RAMIREZ,
                       Defendant-Appellant.
                    Yamhill County Circuit Court
                       16CR50083; A166595
                                  

     Defendant appeals from a judgment of conviction of one count each of carrying a concealed weapon, ORS 166.240, unlawfully possessing methamphetamine,
ORS 475.894, and providing false information to a police officer, ORS 162.385.
Defendant entered a conditional guilty plea reserving his right to seek appellate
review of the trial court’s denial of his motion to suppress. On appeal, defendant
assigns error to that denial, first arguing that the trial court incorrectly determined that handcuffing defendant—an act which led to the discovery of a knife
sheathed under defendant’s sleeve—was justified by the officer safety exception
to the warrant requirement under Article I, section 9, of the Oregon Constitution.
Second, defendant argues that even if his detention for officer safety concerns
was lawful, the subsequent search of his backpack, in particular an Altoids
tin located within his backpack, was not a lawful search incident to arrest.
Held: The trial court’s denial of defendant’s motion to suppress evidence resulting
from the unjustified handcuffing of defendant was error. The trial court did not
err, however, in its denial of defendant’s motion to suppress evidence resulting
from the lawful search of the backpack. Because this case arises as a conditional
plea, the Court of Appeals remanded to the trial court for further proceedings,
where defendant may elect to withdraw his plea as to the charge of carrying a
concealed weapon, or may elect to withdraw his plea to all charges.
    Reversed and remanded.



    Ronald W. Stone, Judge.
   Mary M. Reese, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Hannah K. Hoffman, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
196                                     State v. Ramirez

  Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
  JAMES, J.
  Reversed and remanded.
Cite as 

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        JAMES, J.
         Defendant appeals from a judgment of conviction
of one count each of carrying a concealed weapon, ORS
166.240, unlawfully possessing methamphetamine, ORS
475.894, and giving false information to a police officer in
connection with a citation, ORS 162.385. Defendant entered
a conditional guilty plea reserving his right to seek appellate review of the trial court’s denial of his motion to suppress. On appeal, defendant assigns error to that denial,
first arguing that the trial court incorrectly determined that
handcuffing defendant—an act which led to the discovery
of a knife sheathed under defendant’s sleeve—was justified
by the officer safety exception to the warrant requirement
under Article I, section 9, of the Oregon Constitution, which
requires an officer’s objectively reasonable suspicion, based
on specific and articulable facts, that defendant poses an
immediate threat of serious physical injury. Second, defendant argues that even if his detention for officer safety concerns was lawful, the subsequent search of his backpack, in
particular an Altoids tin located within his backpack, was
not a lawful search incident to arrest.
         We agree with defendant that objectively reasonable officer safety concerns did not justify the handcuffing
of defendant. That act led to the discovery of the knife, and
in turn the charge of carrying a concealed weapon, ORS
166.240. We reverse the trial court’s ruling on that aspect of
defendant’s motion to suppress. However, we affirm the trial
court’s ruling as to the search of the backpack that led to
evidence in support of the charges of unlawfully possessing
methamphetamine, ORS 475.894, and giving false information to a police officer, ORS 162.385. Because this case
arises as a conditional plea, we remand to the trial court for
further proceedings. At that time, defendant may elect to
withdraw his plea as to the charge of carrying a concealed
weapon, ORS 166.240, or may elect to withdraw his plea to
all charges.
        “We review the trial court’s denial of the motion to
suppress for legal error.” State v. Miller, 

, 

 (2014). “In reviewing a denial of a motion
to suppress, we are bound by the trial court’s findings of
198                                            State v. Ramirez

historical fact that are supported by evidence in the record.
We state the facts consistently with the trial court’s explicit
and implicit factual findings, which the record supports.”
State v. Leiby, 

, 

 (2018)
(internal citation omitted).
          Officers Harmon, Cerda, and LaRue were driving
their respective patrol vehicles to a domestic disturbance
when they saw defendant and two female companions violate the city’s jaywalking ordinance by crossing the street
at less than a 90-degree angle. None of the officers had previously encountered defendant or his companions or had
any other knowledge about them. As the officers drove by,
Harmon saw defendant shield his face, which, Harmon testified, officers “often encounter … when people don’t want
us to see who they are or identify them.” Harmon did not
clarify whether “people” referred specifically to defendant.
The officers were unable to locate the disturbance, so Cerda
radioed the other officers that he would circle back to find
the jaywalkers. Harmon and LaRue provided backup support for Cerda, and the three officers drove back to the area
where they had seen the jaywalkers.
        On cross-examination, Harmon acknowledged that
three patrol cars converging on a jaywalker might be viewed
as unusual:
      “[DEFENSE COUNSEL]: Okay. And so would you
   agree with me then that there was quite a show of force to
   deal with jaywalkers?
      “[HARMON]: There were three of us there. If—if we’re
   simply talking jaywalking, I think one could maybe see it
   that way.
      “[DEFENSE COUNSEL]: Okay. And that’s all you
   were there for, wasn’t it, was jaywalking, three jaywalkers?
      “[HARMON]: Well, I was there to cover Officer Cerda.
      “[DEFENSE COUNSEL]: So that’s a yes, there were
   three officers there to cover three jaywalkers?
       “[HARMON]: Well, we also had additional information knowing—I mean I personally knew that Mr. Ramirez
   had—you know, just shielding his face, again, just an
   inkling that there’s something else, but—but—
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      “[DEFENSE COUNSEL]:         So he didn’t want to look at
   you?
      “[HARMON]: Uh-huh. It’s possible.
       “[DEFENSE COUNSEL]: Okay. So a show of force for
   three people jaywalking and one of them who didn’t want
   to look at you, correct?
      “[HARMON]: I would say that’s correct.”
         Officer testimony shows that Cerda arrived first to
the scene. He located the three individuals and asked them
to stop. Although both of defendant’s companions stopped
immediately, defendant turned around to look at Cerda as
he continued walking away. Cerda again asked defendant
to stop, but defendant kept walking. When Harmon arrived
on the scene shortly thereafter, defendant was still walking
away.
           Harmon testified that, in his training and experience, when “someone,” not defendant in particular, refuses
to stop, “[it] certainly raises a little concern … especially
given the nature of a pretty minor violation. … [M]aybe
they’ve done something that might be a violation, but usually it’s [because] they believe or are wanted for something.”
He did not explicitly clarify whether defendant’s refusal to
stop made him suspect that defendant was wanted.
         Shortly after Harmon arrived on the scene, defendant complied with the stop. LaRue arrived moments thereafter. Cerda and defendant’s companions stood behind
Cerda’s patrol car while they discussed the jaywalking violation. Harmon explained that he had stopped defendant for
failing to cross the street at a 90-degree angle. Defendant
told Harmon that he believed that the city ordinance had
been “thrown out” as unconstitutional. Harmon told defendant that, as far as he knew, the ordinance was constitutional. Defendant wanted to go “downtown so he could get
wi-fi and look it up.” Harmon told defendant that the ordinance was not on the internet; it was instead “on paper at
the police department.” That interaction was polite and not
provocative. As that discussion occurred, LaRue walked
back and forth between the front and back of the car, assisting both Cerda and Harmon.
200                                             State v. Ramirez

         Defendant refused to provide his name or date of
birth and indicated that he had identification, but it was
not with him. Harmon testified that when an individual,
again, not defendant specifically, does not want to provide
his name or date of birth, it is “another indication that somebody’s possibly being deceptive … probably for … reasons
of being wanted.”
          Defendant then provided Harmon a false name and
date of birth, Sergio Rodriguez, which he twice misspelled
without the second “r,” “Rodiguez.” Cerda attempted to verify the information using the computer inside his vehicle, but
was unsuccessful. As LaRue walked back and forth between
Cerda, who was inside his patrol car, Harmon, who was in
front of the patrol car near defendant, and the female companions, who were behind the vehicle, one of the companions
told LaRue that defendant’s name was “Sam.” At that point,
LaRue and Cerda determined that defendant’s true identity
was Samuel Ramirez. LaRue testified:
       “[LARUE]: We started going back and forth trying to
   find out who he was. And so I started talking to some of the
   females and trying to get information from them on who he
   was. And eventually I was told by one of the females—and
   I forget which one it was—that his name—his first name
   was Sam.
      “[PROSECUTOR]:       And what did you do with that
   information?
      “[LARUE]: Well, as we were trying to figure out,
   again, Officer Cerda was, I believe, in his car trying to run
   names and … figure out names. That everything kind of
   happened where I think Officer Cerda figured out who he
   was and we were kind of figuring out it was Sam Ramirez.”
         Meanwhile, defendant asked permission to sit on the
curb. Harmon agreed. As defendant sat on the curb, about
six or seven feet away from Harmon, he asked Harmon if
defendant could put his cell phone in his backpack, which
Harmon described as “odd.” Harmon testified:
      “[PROSECUTOR]: So then I had interrupted, but you
   said that he—he asked if he could put his phone in his
   backpack?
      “[HARMON]: Yes, he did.
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      “[PROSECUTOR]:       And then what happened?
       “[HARMON]: I told him he could. And, again, I found
   it odd that, you know, he had wanted to do that, but—and
   then he proceeded to open the main compartment on—on
   the backpack which, again, kind of struck me and I was
   watching him.
       “[PROSECUTOR]: So let me stop you. Why did it
   strike you as odd that he wanted to put his cell phone in
   his backpack?
      “[HARMON]: If I’m putting away something small
   like that, I would probably use the outer pockets. I can
   access it quickly if I wanted, not into a larger compartment
   that it might be—be bounced around with other items.
      “[PROSECUTOR]: And why did it strike you as odd in
   the first place that he wanted to put it away?
       “[HARMON]: Because I think he had pockets on the
   clothing he was wearing. So he could just, you know, put
   in a pocket or something. So he—he went to put that, and I
   was watching him.”
          Further, Harmon testified that one aspect of defendant’s behavior that made him subjectively concerned was
that while defendant put the phone in the backpack, he
looked at the officer. Harmon testified, “And he looked up at
me as if to see if I was—I’m watching him. Maybe that’s how
I took it.”
        Despite Harmon’s “inkling” about defendant possibly being wanted, and the fact that he still did not know
defendant’s name, he testified that those concerns did not
prevent him from giving defendant permission to place the
phone in the backpack:
      “[PROSECUTOR]: Okay. And so the things that you’ve
   articulated that you believe or that you’ve said caused you
   some concern, then why is it that you let him reach into the
   backpack if they were so concerning to you?
      “[HARMON]: It wasn’t until the manner of how he
   reached into the backpack. I was wanting to let him—
   again, he was being cooperative. He wasn’t running. I was
   watching the whole time. Honestly, I was ready for him as
   this went on, I mean it went on for a number of minutes.
202                                           State v. Ramirez

  I don’t know the total timeframe from beginning to end,
  but and everything (phonetic) sometimes when people start
  thinking and they overthink or, you know, if they think
  they’re getting in trouble, they might do something. They
  might run. They might fight. They might—we don’t know
  what.”
         LaRue, who knew defendant’s true identity at the
time, watched Harmon stand over defendant as he reached
his entire straightened right arm into the large main compartment of the backpack. LaRue testified:
     “And as I looked over, I saw Officer Harmon standing
  kind of above Mr. Ramirez who was seated, and I saw
  Mr. Ramirez stick his hand inside of a backpack. He had
  his phone in his hand and placed it deep inside the backpack. At that point Officer Harmon like grabbed his hand
  and I kind of recall him saying, ‘Don’t put your hand in
  there.’ ”
         Harmon thought defendant could possibly be reaching for a weapon. He testified that the totality of the circumstances—combining the concern that defendant might
be wanted with the odd manner in which he reached into
the backpack, which could have been weapon-related—led
to safety concerns:
      “Again, it was, ultimately, the manner in which he
  reached into the bag that was concerning. And that’s what
  caused me to act to go physically detain him for our safety
  or the safety of not only of ourselves but of Mr. Ramirez. I
  did not know what he was accessing, what he was doing at
  that point.”
         Harmon reached inside the backpack to grab defendant’s right wrist to handcuff him. Because LaRue was
watching the interaction, he immediately grabbed defendant’s left forearm to assist Harmon and felt a sheathed
knife underneath his sleeve. LaRue called defendant by his
real name, “Samuel,” and threw the knife on the ground,
out of reach. Defendant immediately confirmed his identity,
that he was carrying a knife, and that he thought he had a
warrant for his arrest, which he did not.
        Harmon testified that when defendant confirmed
his identity, he believed he had probable cause to arrest
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defendant for providing false information to an officer. Officer
Cerda put defendant in the back of his patrol car and placed
the backpack outside the vehicle, on top of the trunk. Cerda
testified that, when he searched defendant’s backpack, he
was not looking for evidence of any crimes, but his main
concern was “weapons or any type of explosives.” As part
of that search, in the main compartment of the backpack,
Cerda found a closed black nylon bag about “half the size of
a sheet of paper.” He opened the bag and found an Altoids
can “smaller than an index card.” He opened the Altoids can
and found a clear plastic bag containing white crystal residue, which tested positive for methamphetamine.
         Based on the evidence of the search, the state
charged defendant with possessing methamphetamine, giving false information to police officers in furtherance of issuing a citation, and carrying a concealed weapon.
         Before trial, defendant filed a motion to suppress
the knife and methamphetamine residue. Defendant argued
that the evidence should be suppressed because the officer safety exception, which requires objectively reasonable suspicion that defendant was an immediate threat,
did not apply. Defendant specified that Harmon’s subjective safety concerns that arose prior to defendant reaching
into the backpack were not objectively reasonable because
they were unrelated to whether defendant was a threat.
The only action that was related to whether defendant
was a threat, defendant argued, was defendant’s single
furtive movement, reaching into the backpack, which was
insufficient to prove that safety concerns were objectively
reasonable.
         The state responded that defendant’s actions prior
to reaching into the backpack contributed to officer safety
concerns, which, under the totality of the circumstances,
provided officers objectively reasonable suspicion that
defendant was an immediate threat. The state added that
Harmon gave defendant permission to place the phone in
his backpack, not to reach deeply into it. Because Harmon
had objectively reasonable safety concerns, the state argued,
officers lawfully handcuffed defendant and discovered the
resulting evidence.
204                                             State v. Ramirez

        The trial court agreed with the state, and it denied
the motion:
       “And I don’t have to repeat all the circumstances, but
   all these steps of causing the police higher and higher and
   higher anxiety about what they’re dealing with. They were
   concerned they weren’t dealing just with a jaywalking case.
   The furtive movements, the wouldn’t look at the police in
   the eye, and then, of course, the reasonable suspicion that
   they had that he was not giving them the correct name.
   And then when he asked to put the phone in the bag and
   then put his hand in such a way that he could be grabbing
   a weapon, they—I believe they had a right to grab his arm
   and thereby they found the weapon. Both objectively and
   subjectively, I believe that was reasonable.”
          Defendant entered a conditional guilty plea, reserving the right to seek appellate review of the trial court’s
denial of his motion to suppress. The trial court entered a
judgment of conviction on all counts, and this appeal followed. As to the officer safety seizure, the state argues on
appeal that the following four facts created subjective safety
concerns for the officers: “(1) [defendant] reached his entire
hand and forearm into the backpack; (2) he kept his eyes on
Officer Harmon to see if he was watching; (3) he previously
had tried to walk away from the stop; and (4) he refused to
give officers his name and then gave them a fake name.”
According to the state, those subjective facts create an objectively reasonable concern for safety because “the officers did
not know who they were dealing with at this moment” and
that during an encounter where defendant had been evasive
about answering questions, “defendant was reaching deep
into his backpack while keeping his eyes fixed on a police
officer.” As the state argues, that makes it “objectively reasonable to suspect that defendant was reaching into the bag
to pull out a dangerous item.” We turn now to the merits.
        Article I, section 9, protects the right of Oregonians
“to be secure in their persons … against unreasonable
search, or seizure[.]” In State v. Bates, 

, 

 (1987), the Supreme Court held:
   “Article I, section 9, of the Oregon Constitution, does not
   forbid an officer to take reasonable steps to protect himself
   or others if, during the course of a lawful encounter with a
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   citizen, the officer develops a reasonable suspicion, based
   upon specific and articulable facts, that the citizen might
   pose an immediate threat of serious physical injury to the
   officer or to others then present.”

          As an overview, under the officer-safety doctrine,
the state bears a two-part burden of proof and persuasion.
First, the state must prove the subjective component of officer safety. For that, the state bears the burden of establishing that: (1) based on specific and articulable facts known
to the officer, the officer (2) had subjective reasonable suspicion, that (3) the defendant posed an immediate threat, and
(4) the threat was of serious physical injury. State v.
Hendricks, 

, 

, rev den,

 (2007). Once the state has met its burden on
the subjective component, it then bears the burden to prove
that, under the totality of the circumstances, (1) the officer’s
subjective safety concerns of an immediate threat of serious
physical injury were objectively reasonable, and that (2) the
officer’s response to the safety concerns was, itself, objectively reasonable. We now discuss each of those components
in more detail.
         First, the officer’s subjective safety concerns must
be based on specific and articulable facts, not on “intuition
or a generalized fear that the person may pose a threat to
the officer’s safety.” State v. Smith, 

,

, rev den, 

 (2016) (internal quotation marks omitted). “[T]he officer’s safety concerns must be
based on facts specific to the particular person searched.”
State v. Jackson, 

, 

 (2003),
rev den, 

 (2004). An officer may not interfere with
a person’s liberty based on only intuition or a hunch. State
v. Walker, 

, 

, rev den, 

 (2016).
        Second, the subjective concerns about the officer’s
safety must be from a threat that is immediate. Speculative
concerns, or potential future dangers, will not suffice.
Similarly, general concerns for safety, or concerns based on
a general type of police-citizen encounter do not meet the
requirement. See, e.g., State v. Moreno, 

,

 (1997) (“In this case, the officers’ testimony does
206                                          State v. Ramirez

not support the conclusion that defendant posed an immediate threat to their safety. At best, the evidence shows that
the officers had a generalized concern for their safety that
would be present any time an officer approaches a citizen
and begins questioning the person.” (Emphasis in original.)).
        Third, the officer safety doctrine does not reach to
all perceived risks or dangers. Rather, to justify the warrantless seizure of a citizen, the subjective concern for safety
must rise to the level of a concern for serious physical injury.
Serious physical injury is defined by ORS 161.015(7) as
“physical injury which creates a substantial risk of death
or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.”
           In determining whether an officer’s concern for
safety is objectively reasonable we consider “the totality
of the circumstances as they reasonably appeared to the
officer[ ] at the time ….” Jackson, 

. In
our decisions involving the officer safety doctrine, we have
acknowledged the realities of policing—that police-citizen
encounters can sometimes involve split-second, highlyconsequential decisions. State v. Amell, 

,

 (2009). Those points of decision are faced by the
officer and the citizen both, and the safety of each can be
affected. A court’s task, in evaluating warrantless searches
and seizures of citizens by the police under a claim of officer safety, is to evaluate the totality of the circumstances in
which those decisions were made.
         The “concept of reasonableness in this context is not
biased in favor of the concerns of the police.” State v. Rudder,

, 

 (2009). Accordingly, evaluating
an officer’s safety concerns against the rubric of objective
reasonableness necessitates that a court look beyond the
subjective perspective of the officer. What makes an officer’s
subjective safety concern objectively reasonable isn’t that the
officer thought it was reasonable, or even that the officer’s
subjective concern is supported by some evidence. Subjective
officer safety concerns, even when supported by evidence in
the record, cannot be given “greater weight than the constitutional right of all persons.” 

 Rather, the concern must
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be reasonable more broadly, to a standard society views as
objectively reasonable. State v. Davis, 

,

 (2016) (“Any officer-safety analysis must balance two interests: the individual’s constitutional right to
security in his or her person and an officer’s right to take
reasonable safety measures.”); State v. Zumbrum, 

, 

 (2008) (explaining that, beyond
the officer’s subjective belief, our inquiry into objective “ ‘reasonableness’ requires consideration of the nature and extent
of the perceived danger and the degree of intrusion resulting from the officer’s conduct” (citing State v. Rickard, 

, 

, rev den, 

 (1997))).

          To consider the true totality of the circumstances,
therefore, requires a court to consider the entire encounter
as it objectively transpired. Thus, in an evaluation of objective reasonableness we consider, in equal measure, the realities of policing, as well as the realities of being policed. See
Rudder, 

 (describing the balance between officer
safety concerns and “the constitutional right of persons—
even those who have been stopped on suspicion of criminal
activity—to be free of unreasonable searches and seizures”);
Davis, 

 (recognizing that “[a]ny officer-safety analysis must balance two interests: the individual’s constitutional right to security in his or her person and
an officer’s right to take reasonable safety measures”); see
also Zumbrum, 

 (explaining that “there
are several facts that detract from a reasonable belief that
defendant’s nervousness indicated the possibility of a physical danger,” including that defendant was awakened in his
mother’s home by an officer who asked him to leave the room,
that defendant complied, and then “immediately encountered another officer, who was not only physically imposing,
but who also carried a sidearm”; “we consider those circumstances as part of the overall circumstances in determining
the reasonableness of the officer’s belief”).

        Finally, even when the state has proven all the elements discussed, “there are limits to what officers can do
under the justification of protecting their safety.” State v.
Miears, 

, 

, rev den, 

 (2000). In addition to the requirement that the state
208                                         State v. Ramirez

establish that the officer’s safety concern was objectively
reasonable, the state must also establish that the officer’s
response was also objectively reasonable. State v. Rodriguez-Perez, 

, 

 (2014) (“[T]he steps
the officer took to protect the officer or others must have
been reasonable.”) Objective reasonableness of the officer
response is gauged by looking at the proportionality. The
“officer safety doctrine does not excuse protective measures
that are disproportionate to any threat that the officers
reasonably perceive.” Rudder, 

. An objectively
reasonable response need not always be the least intrusive
response. Rather, under the totality of circumstances, “a
range of choices” may be objectively reasonable. 

         We turn now to the application of those principles to
the facts of this encounter. Again, on appeal the state relies
on four facts: “(1) [defendant] reached his entire hand and
forearm into the backpack; (2) he kept his eyes on Officer
Harmon to see if he was watching; (3) he previously had
tried to walk away from the stop; and (4) he refused to give
officers his name and then gave them a fake name.” We
address those facts in reverse order.
          That defendant had previously tried to walk away
from the initial stop is a proper consideration, but, like all
facts, it must be viewed in the totality of the circumstances
of the entire encounter. That totality includes the fact that,
at the time the seizure based on officer safety concerns
occurred, defendant had stopped, was sitting on the curb,
and was described as being fully cooperative. The officer
testified that at that moment, defendant “was being cooperative. He wasn’t running.”
         As for defendant’s refusal to provide his name, we
agree with the state that in the context of this encounter,
that fact contributes to an objective assessment of a safety
concern. We note, however, that on appeal the state advances
a broader argument—that objective safety concerns arise
whenever an officer doesn’t “know who they [are] dealing with
at [the] moment.” We reject that broad argument because, as
a general matter, an individual is typically under no legal
obligation to provide a police officer with their name. Here,
however, it is apparent that the officers were in the process
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of attempting to issue defendant a citation. Furnishing a
false name to a police officer is unlawful in the limited context of when the officer “is issuing or serving the person a
citation under authority of ORS 133.055 (Criminal citation)
to 133.076 (Failure to appear on criminal citation) or ORS
chapter 153; or … [t]here is an outstanding warrant for the
person’s arrest.” ORS 162.385(1). Defendant’s unwillingness
to provide a name to the officers in such an instance adds to
the objective reasonableness of the safety concerns under a
totality of the circumstances. However, under the totality of
the circumstances in this case, we must also recognize that
at the time the officer grabbed defendant’s arm, the officers
had determined his true name—evidenced by the fact that
they called him by his name while grabbing him.

          We now turn to the remaining two facts on which
the state relies, that defendant “kept his eyes on Officer
Harmon to see if he was watching” and the manner in
which defendant reached into the backpack. We agree that
this record shows that Harmon formed a subjective safety
concern based, in part, on the fact that, as Harmon testified, “[defendant] looked up at me as if to see if I was—I’m
watching him.” However, the state has provided little on
this record to transform that subjective concern into objective reasonableness.

         The officers testified that one of the things that
caught their attention and increased suspicion at the outset of the encounter was that defendant did not look at
them. Then, further into the encounter the state relies on
the exact opposite behavior—that defendant did look at the
officer—as creating a safety concern. But the state proffered
no evidence, nor advanced any arguments, distinguishing
between the two acts. We cannot conclude that such behavior intrinsically creates a reasonable concern for safety.
We do not foreclose the possibility that a record could be
developed in a specific case which supported the conclusion
that looking at an officer in one point of an encounter created a safety concern and not looking created that concern
at another point. But it is incumbent on the state to carry
its burden and create a sufficient record in support of that
conclusion.
210                                         State v. Ramirez

         Additionally, citizens, like police, can have subjective safety concerns during a police-citizen encounter. It
is wholly unsurprising that a citizen, being detained by a
police officer, who has just asked permission to perform an
action, would watch the officer while performing that action.
Even if defendant’s gaze caused the officer concern, we do
not see how such behavior is distinguishable from nervousness, which we have held insufficient to give rise to objectively reasonable safety concerns. Zumbrum, 

 (“Although, under the circumstances, defendant’s
nervousness may have caused [the officer] concern, we cannot conclude that any particularized conduct by defendant
suggested that he presented an immediate threat of serious
physical injury.”).

         Considering defendant’s reach into the backpack,
Harmon emphasized that, “it was, ultimately, the manner
in which [defendant] reached into the bag that was concerning.” As we have frequently explained, a “suspect’s furtive
movements and nervousness, without more, do not support
an inference of likely violence.” State v. Nye, 

, 

 (2019); Davis, 

, (rejecting asserted officer safety justification because, “[a]lthough
defendant’s initial movement toward the floorboard of his
truck may have raised [the officer’s] subjective suspicion, it
was not accompanied by other conduct that would give rise
to an objectively reasonable concern for safety”); Amell, 

 (concluding pat-down not justified on officer safety grounds where, despite the defendant’s lie about
whether his license was suspended and despite the officer’s
observation of a “digging movement” by the defendant—
which the officer believed to be consistent with retrieving
a weapon—the “defendant was cooperative at all times,
did not show hostility, and made no suspicious movements
during his interaction with the police”).

         We cannot separate defendant’s movement from the
context in which it was performed. The totality of the circumstances here includes the fact that defendant asked for, and
was given, permission to perform the very act relied upon
by the state. The officer could have qualified his permission
or denied it outright but did not. Defendant’s request for
Cite as 

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permission evidences that defendant was respectful of the
officer’s safety concerns and behaving in a manner that reasonably would deescalate, rather an elevate, those concerns.
While we are mindful of not “uncharitably second-guess[ing]
an officer’s judgment,” Bates, 

, we likewise do
not permit officers to create the very exigencies they then
rely upon to diminish a citizen’s Article I, section 9 rights.
State v. Roberts, 

, 

 (1985)
(“Police officers cannot create their own exigencies.”).

          Harmon did testify that he believed that defendant
putting the phone in the bottom of the backpack was “odd,”
and how he would not have done the same act. Harmon
found it suspicious that defendant did not place the phone
in an “outer pocket” or in the pocket of “the clothing he was
wearing.” Like the testimony regarding defendant watching
Harmon, the state has given us nothing on this record to
determine that Harmon’s subjective belief was objectively
reasonable. As a general proposition, we cannot conclude
that it is unreasonable that a person may want to secure a
valuable item like a phone in a protected area of a backpack
as opposed to an outer area where the item could fall out.
Again, we do not foreclose the possibility that an officer’s
belief in this area could be shown to be objectively reasonable, but it requires the development of a record greater than
what exists here. On this record, we simply have Harmon’s
subjective concern.

         Although we have addressed each point relied upon
by the state above, we do not consider them in isolation. A
totality of the circumstances approach does not lend itself to
divide and conquer tactics. See, e.g., United States v. Door,

 (9th Cir 2016), as amended on denial
of reh’g and reh’g en banc, 

 (9th Cir 2016)
(noting that a totality test precludes a “divide-and-conquer
analysis”); State v. Sharp, 305 Kan 1076, 1081, 

(2017) (“The totality of the circumstances standard precludes a divide-and-conquer analysis under which factors
that are readily susceptible to an innocent explanation are
entitled to no weight.”). Rather, we consider the weight to
be given to each fact, then evaluate the facts in the totality, recognizing that multiple facts may “combine to form a
212                                         State v. Ramirez

whole greater than the sum of its parts.” State v. Radtke, 

, 

 (2015).
         Here, the totality of the circumstances must reflect
that throughout the encounter defendant was nonthreatening. Even his initial refusal to stop was based on a disagreement over the law, which ultimately led to a civil discussion
with the officer, not a confrontation. At the time of the seizure of defendant’s arm, the officer described defendant as
“cooperative.” He was sitting on the curb after first asking
permission to do so, and then, again, requested permission
in advance to access his backpack. We have repeatedly held
that when a defendant is cooperative, “in the absence of any
threatening behavior by the defendant, generalized safety
concerns … are insufficient to justify an officer-safety
search.” Smith, 

; see also State v. Senn, 

, 

 (1996) (no objective officer-safety concerns where defendant’s demeanor throughout
the encounter was “entirely cooperative, nonhostile, and
nonthreatening”). We reach the same result here. On this
record, we cannot conclude that the state met its burden
in this case to establish that the officers’ subjective safety
concerns were objectively reasonable. Accordingly, the trial
court erred in denying that portion of defendant’s motion to
suppress.
         Next, we turn to the search of the backpack. At the
outset, we note that on appeal defendant does not argue that
the search of the backpack was derivative of the seizure of
defendant’s arm for officer safety concerns. To the contrary,
defendant argues on appeal that any error as to the officer
safety seizure only results in suppression of the “the knife
and defendant’s statements regarding it.” We agree. The
search of the backpack was made pursuant to defendant’s
arrest for furnishing false information, the basis for which,
on this record, is independent of the officer safety seizure.
         The trial court found that the officers searched the
backpack lawfully under the search incident to arrest exception to the warrant requirement, which permits a search,
incident to arrest, when “the search is necessary to protect
the arresting officers, to prevent the destruction of evidence,
or to discover evidence related to the crime for which the
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defendant is under arrest.” State v. Newport, 

, 

 (2006).1 The state argues that such a
search was justified because the officer could lawfully either
(1) search for dangerous weapons, or (2) search for evidence
of the crime of arrest—giving false information to a police
officer.2
         Under Article I, section 9, warrantless searches
are per se unreasonable unless falling within one of the
few “specifically established and well-delineated exceptions” to the warrant requirement. State v. Davis, 

, 

 (1983). Warrant exceptions are just
that—exceptions. The Oregon Constitution presumes that
when the government invades the privacy interests of a citizen by a search of their person, their home, or their effects,
that search will have been sanctioned, and its scope delineated, through the judicial oversight offered by the warrant
process.
          When a search or seizure occurs outside the warrant process envisioned by the constitution, “[t]he state has
the burden of proving that circumstances existing at the
time were sufficient to satisfy any exception to the warrant
requirement.” State v. Baker, 

, 

(2011). When judging whether the state has met that burden, a court is guided by the purpose of, and justification
for, that exception. “[T]he exceptions to the warrant requirement … must be applied consistently with the purposes
animating the exception. Put differently, the contours and
scope of the particular exception are circumscribed by the
justification for that exception.” State v. Fulmer, 

, 

 (2020).
         A warrantless search incident to arrest must be
grounded on one or more of the following purposes: “(1) to
protect a police officer’s safety; (2) to prevent the destruction
      1
        At trial, the state also relied upon an inventory policy. On appeal, the state
has abandoned any argument that the backpack or other containers were opened
in accord with a lawful inventory.
      2
        ORS 162.385 provides that a person commits the crime of giving false information to a peace officer “in connection with a citation or warrant if the person
knowingly uses or gives a false or fictitious name, address or date of birth to any
peace officer when: (a) The peace officer is issuing or serving the person a citation
….”
214                                              State v. Ramirez

of evidence; or (3) to discover evidence of the crime of arrest.”
State v. Mazzola, 

, 

 (2015). As
we have noted, a search incident to arrest under the first
two purposes—officer safety and destruction of evidence—
can become untethered from the animating purpose for the
warrant exception when it occurs in a time, or a space, separated from the suspect’s immediate control:
   “[I]n many circumstances, searches incident to arrest for
   those two reasons will be justified only when the area
   searched is still within the defendant’s control, so that
   the defendant would be able to obtain a weapon stashed
   in the area or to destroy or conceal evidence located there.
   See State v. Groom, 

, 

,
   rev den, 

 (2012) (describing the first two bases
   for search incident to arrest as justified by the need ‘to protect the arresting officer in case the suspect has a weapon
   within reach and to prevent the suspect from reaching and
   destroying evidence’).”
State v. Krause, 

, 

 (2016),
rev den, 

 (2017).
         As for the third purpose for the exception—discovery
of evidence of the crime of arrest—we have held that purpose undiminished when a defendant is separated from
the object of the search. Krause, 

 (“[A]
search for that purpose may be justified even if the defendant has been removed from the area in which an officer
believes that evidence may be located.”). However, other limitations circumscribe the boundaries of the purpose. In State
v. Owens, 

, 

 (1986), the Oregon
Supreme Court held that a warrantless search incident to
arrest for evidence of the crime of arrest was constrained
by three factors: (1) the crime of arrest, (2) the nature of
the evidence establishing that crime, and (3) whether the
location searched could reasonably be understood to conceal
such evidence.
   “Under Article I, section 9, a search incident to arrest for
   crime evidence is limited to a search for evidence of the
   crime for which the arrestee is arrested. In order to justify
   a search, incidental to an arrest, the arrest must be for
   a crime, evidence of which reasonably could be concealed
   on the arrestee’s person or in the belongings in his or her
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   immediate possession at the time of the arrest. Thus, for
   example, if the person is arrested for a crime which ordinarily has neither instrumentalities nor fruits which could
   reasonably be concealed on the arrestee’s person or in the
   belongings in his or her immediate possession, no warrantless search for evidence of that crime would be authorized
   as incident to that arrest.”
Id. at 200; see also State v. Washington, 

, 

 (2014) (“[O]fficers may open a closed container in conducting a search incident to arrest if evidence
of the crime of arrest reasonably could be concealed in that
container.”).
         Thus, a search incident to arrest for evidence of the
crime of arrest is limited to that crime, and evidence of that
crime. The exception does not permit an investigation into
other potential crimes, or otherwise “justify an ‘exploratory
seizure’ of ‘everything in [the arrestee’s] immediate possession and control upon the prospect that upon further investigation some of it might prove to have been stolen or to be
contraband[.]’ ” Owens, 

 (internal citation
omitted; brackets in Owens).
          Finally, under any of the three justifications—
officer safety, destruction of evidence, and evidence of the
crime of arrest—the search “for evidence related to the
crime for which the defendant was arrested, … must be
reasonable in time, scope, and intensity.” State v. Hartley, 

, 

, rev den, 

 (1989).
A search is reasonable in time if it “occur[s] immediately
after [a] defendant’s arrest.” State v. Burgholzer, 

, 

 (2002). A search is reasonable in scope
and intensity if it is “sufficiently close in space to the arrest,”
State v. Vaughn, 

, 

, rev den, 

 (1988), and extends into areas where the “instrumentalities” or “fruits” of the crime could reasonably be concealed, not just could possibly be concealed. State v. Hite, 

, 

 (2005) (quoting Owens, 

).
        We now apply those principles to this case. Here,
the state relies, in part, on the officer safety purpose of the
search incident to arrest warrant exception. At least for the
216                                          State v. Ramirez

officer safety purpose, the exception is inapplicable under
these facts. The record shows that at the time the backpack
was searched, defendant had been arrested, was in handcuffs, and was separated from the backpack. The backpack,
and its contents, had been reduced to the exclusive control
of the officers. Whatever safety concerns might have existed
had defendant had access to the backpack were neutralized through separation. Accordingly, that purpose of the
search incident to arrest exception cannot justify the search
here.
          Alternatively, the state justifies the search on the
grounds that the officer was searching for defendant’s identification as evidence of the crime of arrest. At the outset,
defendant disputes that the officer was, in fact, searching
for evidence of the crime of arrest. Defendant is correct that
there is testimony by Cerda in the record that he searched
defendant’s backpack not for evidence of the crime of arrest,
but to search for additional weapons. However, in later testimony, Cerda stated:
      “[PROSECUTOR]:      When and where did you look for
   ID of the Defendant?
      “[CERDA]: On his person and in the backpack.
      “[PROSECUTOR]:      Did you find ID on the Defendant’s
   person?
      “[CERDA]:    No.
      “[PROSECUTOR]:      So you say you were looking in the
   backpack for ID?
      “[CERDA]: Yeah, I guess if you phrase it that way. Yes.
      “…
      “[PROSECUTOR]: Where in the backpack did you
   look for ID of the Defendant?
      “[CERDA]: Inside the—all the components and in the
   contents of the backpack.
      “…
      “[PROSECUTOR]: Well, what, if any, containers then
   were inside the black nylon bag that you wanted to look—
   that you looked inside to try to find ID?
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      “[CERDA]: There was an Altoids can inside the nylon
   bag.”

         In addition to whatever other motivations for the
search might have existed, the record shows that a search
for evidence of the crime of giving false information to a
police officer was one of Cerda’s reasons. Accordingly, we
therefore look to whether defendant’s identification was evidence of the crime of arrest, and further, whether the location searched (the Altoids tin) could reasonably conceal such
evidence.
         As a general matter, for many crimes of arrest,
a search incident to arrest for identification of a suspect
may be insufficiently connected to the exception’s purpose.
Identification is not an instrumentality or fruit of all crimes
of arrest. In fact, the only situation where we have upheld the
search incident to arrest for identification, as evidence of the
crime of arrest, is in the context of providing a false name
to a police officer—the crime for which the officer arrested
defendant in this case. In State v. Fesler, 

,

, rev den, 

 (1984), we reasoned:
       “Defendant gave the officer a false name and persisted
   in that falsehood until confronted with the results of a
   collateral investigation. The officer had probable cause to
   arrest defendant and charge him with driving while suspended and giving a false name. That he had probable
   cause to charge defendant does not prevent further investigation. … [I]t was reasonable to search for defendant’s
   wallet and the identification it could be expected to contain.
   Such a search would relate to the offense for which defendant was arrested in two ways: it would further serve to
   identify defendant and, because defendant’s knowledge he
   was suspended may be a pertinent consideration in such
   cases, it would further tend to show defendant’s consciousness of guilt if the wallet had been hidden.”

(Internal citation omitted.); see also State v. Gordon, 

, 

 (1991) (“Evidence of defendant’s
identity was relevant to the crime of giving false information
to an officer. Accordingly, the search of defendant’s vehicle
for evidence of identification was proper as a search incident
to arrest.”).
218                                             State v. Ramirez

        That does not end the inquiry, however. Even though
defendant’s identification was evidence of his crime of arrest
here, the state still must establish that the search was reasonable in time, scope, and intensity. Specifically, the state
bears the burden to establish that it was “reasonable” to
conclude that the evidence sought—identification—could be
concealed in the location searched—the Altoids tin. Owens,

. We conclude that, based on this record, the
state met its burden in this case.
          The officer described the specific Altoids tin at issue
as “being about the size of a 3 by 5 index card.” Further, the
officer testified that he had found identification in such containers in the past:
      “[PROSECUTOR]: Over the course of your training
   and experience, have you had occasion to look inside other
   Altoids tins or other containers the size and shape of an
   Altoids tin?
      “[CERDA]: Yes.
       “[PROSECUTOR]: And over the course of your career
   in looking in such containers, have you found valuables in
   those containers before?
      “[CERDA]: Yes.
      “[PROSECUTOR]: What kind of valuables have you
   found in Altoids tins or other type containers?
       “[CERDA]: Jewelry that’s been found in those types
   of containers, cash, change, identification, it’s probably the
   majority of things that are found.”
        The trial court credited the officer’s testimony on
this point, and we are bound to accept such factual determinations when the record supports them. Leiby, 

. Accordingly, on the facts of this record, we conclude that the state met its burden to show that (1) the officer searched the Altoids tin for defendant’s identification,
(2) identification was evidence of the crime of arrest—
providing false information to a police officer, and (3) it was
reasonable to conclude that such evidence could be concealed
within the Altoids tin. The purpose and justification for the
search incident to arrest exception to the warrant requirement being served, and the search being reasonable in time,
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scope, and intensity, the trial court did not err in denying
the motion to suppress the contents of the backpack.
          Lastly, we discuss our disposition, which is dictated
by ORS 135.335(3). In State v. Tannehill, 

,

 (2006), the state charged defendant with three
counts of third-degree sexual abuse and one count of witness tampering. Defendant filed an unsuccessful motion
to dismiss the three sexual abuse counts then entered a
conditional guilty plea, pursuant to ORS 135.335(3), to
one count of third-degree sexual abuse and one count of
witness tampering. 

. On appeal, the Supreme
Court agreed with the defendant’s argument as to the statute of limitations and then addressed the proper disposition in light of the defendant’s conditional guilty plea. 

. The court held that the defendant was entitled under
ORS 135.335(3), if he so chose, to withdraw “the entire plea
rather than only part of it.” 

. Accordingly, rather
than reversing and remanding only with respect to the conviction for third-degree sexual abuse and affirming the conviction for witness tampering, the Supreme Court remanded
the entire case to the circuit court “for further proceedings.”
         We have subsequently applied the same disposition
as in Tannehill in cases where “the conditional plea was an
integrated whole” such that the plea petition “did not purport to differentiate between [multiple] charges” or condition
the plea as to “the ultimate appellate outcome with respect
to the suppression of evidence relating only to [a] charge.”
State v. Cruz-Renteria, 

, 

(2012). Such is the case here. Accordingly, the proper disposition is to reverse and remand for further proceedings. At
that time, defendant may elect to withdraw his plea as to
the charge of carrying a concealed weapon or may elect to
withdraw his plea in its entirety.
        Reversed and remanded.