State v. Marcell

                                124

        Argued and submitted July 16, affirmed August 19, 2020


                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
            AUSTIN LAGRANDE MARCELL,
                 Defendant-Appellant.
            Multnomah County Circuit Court
                 18CR18466; A168367
                             

  Andrew M. Lavin, Judge.
   Joshua B. Crowther, 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.
   Dashiell Farewell, Assistant Attorney General, argued
the cause for respondent. On the brief were Ellen F.
Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Adam Holbrook, Assistant Attorney General.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
  PER CURIAM
  Affirmed.
Cite as 

 (2020)                             125

        PER CURIAM
         Defendant appeals a judgment of conviction for
unlawful possession of a firearm, ORS 166.250. The firearm
was found during a stop of a car in which defendant was
in the driver’s seat. The car was parked too far from the
curb such that the back of the car extended into the southbound lane of traffic, and defendant was initially stopped for
that reason. The stop quickly evolved from a traffic stop into
an investigatory stop related to the unlawful possession of
marijuana, and, when the officer asked about weapons for
safety reasons, defendant gave up the gun.
          The only issue raised on appeal is the denial of
defendant’s motion to suppress the evidence of the gun: specifically, whether the officer’s inquiry about weapons comported with Article I, section 9, of the Oregon Constitution
under the standard set forth in State v. Jimenez, 

,

 (2015), and elaborated on in State v. Miller, 

, 

, adh’d to as modified on recons, 

, 

 (2018). That standard “is less demanding
than the particularized reasonable suspicion that Article I,
section 9, requires before the officer may search the citizen
for weapons.” Miller, 363 Or at 376 (emphasis in original). It
allows an officer to make a weapons inquiry during a traffic
or investigatory stop if the inquiry “is reasonably related to
and reasonably necessary to effectuate” the officer’s investigation. Jimenez, 

; Miller, 363 Or at 380.
         In the context of a motion to suppress, to demonstrate that a weapons inquiry met that standard, “the
state must ‘present evidence that (1) the officer perceived a
circumstance-specific danger and decided that an inquiry
about weapons was necessary to address that danger; and
(2) the officer’s perception and decision were objectively reasonable.’ ” Miller, 363 Or at 380-81 (quoting Jimenez, 

). In the words of our Supreme Court, that test “is not
a demanding one.” State v. Pichardo, 

, 

 (2017).
        Here, defendant acknowledges that the state’s evidence satisfies the first part of the Jimenez/Miller test. He
contends, however, that the record is inadequate to permit the conclusion that the officer’s perception of danger
126                                          State v. Marcell

and question about weapons were objectively reasonable.
Accepting the trial court’s supported factual findings and
otherwise reviewing the record in the light most favorable
to the trial court’s ruling, State v. Backstrand, 

,
405 n 12, 

 (2013), we conclude that the record
is sufficient to support the trial court’s ultimate conclusion
that the officer’s concerns and ensuing weapons inquiry
were objectively reasonable under the “not … demanding”
Jimenez/Miller standard. Pichardo, 

. The trial
court properly denied defendant’s motion to suppress.
        Affirmed.