State v. Prouty

                                       495

  Argued and submitted June 25, 2020, reversed and remanded June 23, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   THOMAS GEORGE PROUTY,
                       Defendant-Appellant.
                  Clackamas County Circuit Court
                       17CR64408; A169110
                                   

    Defendant appeals from a judgment of conviction for delivery of methamphetamine, possession of methamphetamine, and possession of heroin. He
assigns error to the trial court’s denial of his motion to suppress evidence that
he contends was discovered as the result of the unlawful stop of defendant by
two Oregon state troopers. The state argues that defendant’s encounter with the
troopers did not amount to a stop and that, if it did, the seizure was lawful under
the officer-safety doctrine. Held: Defendant was seized under Article I, section 9,
of the Oregon Constitution, and the seizure was not justified under the officer-safety doctrine, because the state failed to prove that the troopers had objectively
reasonable beliefs that defendant posed a threat. Therefore, the trial court erred
in denying defendant’s motion to suppress.
    Reversed and remanded.



    Heather Karabeika, Judge.
   Francis C. Gieringer, 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.
   Philip Thoennes, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
    SHORR, J.
    Reversed and remanded.
496                                                          State v. Prouty

           SHORR, J.
         Defendant appeals from a judgment of conviction
for delivery of methamphetamine, ORS 475.890; possession
of methamphetamine, ORS 475.894; and possession of heroin, ORS 475.854. He assigns error to the trial court’s denial
of his motion to suppress evidence that he contends was discovered as the result of an unlawful seizure under Article I,
section 9, of the Oregon Constitution.1 The state argues that
defendant was not seized and that, if he was, the seizure
was lawful under the officer-safety doctrine. For the reasons
discussed below, we conclude that, under the totality of the
circumstances, defendant was seized prior to the discovery
of the evidence he seeks to suppress, and that the seizure
was not justified by officer-safety concerns. Consequently,
we reverse and remand.
         We review the denial of defendant’s motion to suppress for legal error, and we are bound by the trial court’s
findings of historical fact if the evidence in the record supports them. To the extent that the court failed to make
express findings on pertinent historical facts, we will presume that the court found those facts in a manner consistent with its ultimate conclusion. State v. Maciel-Figueroa,

, 

 (2017). We state the facts,
which are undisputed, in accordance with that standard of
review.
         At around 3:00 a.m., Oregon State Trooper Nelson
responded to a call complaining of unsafe driving on I-5.
Nelson located the vehicle and observed that the driver was
frequently speeding up and slowing down, driving over the
speed limit, and “drifting side to side within the lane.” From
the manner of driving, Nelson believed that the driver was
likely driving under the influence of intoxicants (DUII).
At 3:17 a.m., Nelson activated the siren on his unmarked
patrol vehicle and stopped the driver, who pulled over to the
left shoulder of I-5 so that the vehicle was in the median
between the north- and south-bound lanes of traffic.

    1
      Defendant also argues that the stop was unlawfully extended under the
Fourth Amendment to the United States Constitution. Because we conclude that
defendant was unlawfully seized under Article I, section 9, we do not reach defendant’s Fourth Amendment argument.
Cite as 

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         Nelson approached the driver’s side of the car and
asked the driver, Templeton, for her license and registration. Templeton had difficulty locating her registration and
appeared “restless” and “overly talkative.” From Templeton’s
behavior, Nelson suspected that Templeton was “under the
influence of a stimulant.” Nelson also asked defendant,
who was seated in the front passenger seat, for identification. Nelson copied the information from defendant’s license
and returned the license to defendant before returning to
his patrol car. Nelson testified that it was routine to “try to
identify everybody on a traffic stop.” He also did so because
defendant was a potential witness to a DUII investigation. During that brief interaction with defendant, Nelson
observed that defendant was “on the nod” and “docile.”
        At his patrol car, Nelson contacted dispatch to check
Templeton’s and defendant’s warrant status. Nelson did not
inform Templeton or defendant that he intended to check
their warrant status. Neither Templeton nor defendant
had any outstanding warrants, but defendant was flagged
as an “armed career criminal” and his driver’s license was
suspended. After Nelson learned that defendant was listed
as an “armed career criminal,” Nelson was concerned that
defendant might present a safety risk.
         Nelson returned to Templeton’s car and asked her to
perform field sobriety tests (FSTs). Templeton agreed, and
Nelson and Templeton moved to the front of Nelson’s patrol
car to conduct the tests. Nelson did not tell defendant that
he was free to leave, or otherwise interact with defendant,
who remained in the front passenger seat. Nelson testified
that there was traffic on I-5 at that time, and that there was
no “safe passage” to cross the freeway. According to Nelson,
it would have been “extremely dangerous” to try to cross the
freeway because of the heavy traffic and time of night.
         At some point during the FSTs, Trooper Kendoll
arrived to assist Nelson with the investigation. Nelson asked
Kendoll to “keep an eye on” defendant. Kendoll walked up to
the driver’s side of the car and bent down to look at defendant
through the driver’s side window. After one or two minutes,
Kendoll stepped back several feet and continued watching
defendant from a standing position. Nelson asked Kendoll
498                                           State v. Prouty

to watch defendant “for officer safety” and because he was
concerned that defendant “could possibly have a weapon or
something to that effect.”

         Around 30 minutes after Nelson initiated the traffic
stop, he arrested Templeton for DUII. Kendoll left his position near Templeton’s car to assist with the arrest. Nelson
decided to search Templeton’s car because he believed there
might be evidence of prior methamphetamine use inside.
While the troopers walked back to the car, they discussed
what to do with defendant, who was still sitting in the passenger seat. Nelson told Kendoll that he wanted “to make
sure that [defendant] didn’t stuff anything on his person because [Templeton was] high on meth.” In response,
Kendoll offered to “take [defendant] to the front of [Nelson’s]
car and search him.” Nelson agreed and explained that he
wanted “to make sure [defendant] didn’t stuff anything anywhere in the car.”

         Nelson approached the driver’s side of the car while
Kendoll stood at the passenger door. Nelson asked defendant
to “follow this other trooper’s instructions” and to “step out
for me.” Instead of exiting the car, defendant asked Nelson
why he was being questioned. In response, Nelson stated,
“Why are you being questioned? I want you to step out of the
car.” Defendant complied, and Kendoll stood close to defendant as he exited the car. Kendoll testified that he stood
next to defendant for safety reasons, to ensure that defendant would not step into traffic, and that defendant would
not reach for any weapons. Nelson testified that defendant
was free to leave at that time, however, he also stated that
he would have stopped defendant from crossing the freeway
for defendant’s safety.

        Kendoll closely escorted defendant to the front of
Nelson’s car. Kendoll told defendant that he was not under
arrest but did not tell defendant that he was free to leave.
At Nelson’s car, Kendoll asked defendant to submit to a patdown for weapons. Defendant consented. During the patdown, Kendoll asked defendant about objects in defendant’s
pockets that “concerned [him],” but did not feel like weapons. Defendant told Kendoll that the items were a pack of
Cite as 

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cigarettes and binoculars. Kendoll did not search the inside
of defendant’s pockets.
          After the patdown, Kendoll watched defendant
while Nelson continued his search of the car. Kendoll
described his demeanor as “relaxed” and explained that he
“didn’t have any sense … that [defendant] was a threat to
[the troopers].” Defendant asked Kendoll for permission to
sit on the ground and smoke a cigarette. Kendoll agreed.
At some point while defendant was sitting on the ground,
Kendoll saw defendant pull something out of his pocket and
place it on the ground. Kendoll did not know what the object
was and he did not attempt to inspect it or ask defendant
what it was.
         Meanwhile, Nelson had searched the driver’s side,
backseat, and trunk of the car. Several minutes after the
patdown, Nelson started searching the passenger’s side.
Under the passenger’s seat, he found a box that held a methamphetamine pipe and a small plastic bag with a gas mask
emblem printed on it. The plastic bag contained methamphetamine and heroin. Nelson also searched a backpack
that was sitting on the floor in front of the passenger seat.
Inside the backpack, Nelson found more methamphetamine,
drug paraphernalia, and defendant’s wallet.
         A short time later, defendant asked Kendoll if he
could leave the scene. Kendoll approached Nelson, who was
still searching the passenger’s side, to ask if defendant was
free to go. Nelson told Kendoll that defendant was not free
to leave because of the items that Nelson had discovered in
defendant’s backpack and under the passenger seat.
         The troopers returned to Nelson’s car where defendant was sitting. At that point, Nelson observed several
items next to defendant on the ground. Among those items
were plastic bags containing methamphetamine and heroin, including plastic bags with the same gas mask emblem
as the bags discovered in the car. Kendoll told Nelson that
defendant had pulled those items from his pocket while
he was sitting on the ground. Just after 4:00 a.m., Nelson
arrested defendant for possession of methamphetamine and
heroin. Eventually Nelson issued a citation to defendant,
and Kendoll drove defendant to a nearby truck stop.
500                                           State v. Prouty

         Before trial, defendant moved to suppress the evidence discovered during the course of the traffic stop and
resulting investigation, arguing that he was unlawfully
seized in violation of Article I, section 9, and the Fourth
Amendment to the United States Constitution. The trial
court denied defendant’s motion, concluding that defendant
was not stopped at any point prior to the discovery of the
evidence that defendant sought to suppress. The court reasoned that neither Nelson’s momentary retention of defendant’s license nor check of defendant’s warrant status constituted a stop. And, Nelson’s request for defendant to exit
the car was “consistent with the trooper’s rightful ability
to have [defendant] step out of the vehicle so that [Nelson]
safely could conduct the search incident to arrest.” The court
also determined that Kendoll’s interactions with defendant
did not amount to a stop because those interactions were
relaxed. To the extent that Kendoll provided guidance to
defendant as he exited the car, the court explained, those
actions were taken for the troopers’ and defendant’s safety,
given the time of night and location of the stop.
         Defendant appeals, assigning error to the trial
court’s denial of his motion to suppress. Defendant contends
that he was stopped by the time Kendoll requested defendant’s consent to perform the patdown. The state contends
that defendant was not stopped, and that, if he was, that seizure was lawful because it was motivated by officer-safety
concerns. The state does not contend that the purported stop
was justified by reasonable suspicion of criminal activity.
We first determine whether defendant was seized, as defendant contends, when Kendoll asked defendant to consent to
the patdown.
         Article I, section 9, guarantees individuals the
right to be “secure in their persons … against unreasonable search, or seizure.” Only some police-citizen encounters
trigger the protections guaranteed by that constitutional
provision. State v. Backstrand, 

, 

 (2013). “At one end of the continuum are mere encounters for which no justification is required,” and at the other
end lie arrests “which involve protracted custodial restraint
and require probable cause.” 

. In between are “temporary detentions for investigatory purposes,” or “stops,”
Cite as 

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which “require reasonable suspicion.” 

 Arrests and stops
are seizures that implicate the protections of Article I, section 9, whereas mere encounters are not. 

         A police-citizen encounter is a seizure, if “a reasonable person [would] believe that a law enforcement officer
intentionally and significantly restricted, interfered with,
or otherwise deprived the individual of his or her liberty or
freedom of movement.” 

 That inquiry is “fact-specific and
requires an examination of the totality of the circumstances
involved.” 

 “The question for the court is whether the circumstances as a whole transformed the encounter into a
seizure, even if the circumstances, individually, would not
create a seizure.” State v. Newton, 

, 

 (2017) (internal quotation marks omitted).
          Passengers in a stopped vehicle are not seized merely
by virtue of their status as passengers. State v. Ross, 

, 

 (2013). Rather, for a passenger to
be seized, “some further show of authority directed at the
passenger is required.” State v. Graves, 

,

, rev den, 

 (2016). Generally, that
show of authority must be “something more than just asking a question, requesting information, or seeking an individual’s cooperation.” Backstrand, 

. That is,
“[e]xplicitly or implicitly, an officer must convey to the person with whom he is dealing, either by word, action, or both,
that the person is not free to terminate the encounter or
otherwise go about his or her ordinary affairs.” 

.
However,
   “when the content of the questions, the manner of asking them, or other actions that police take (along with the
   circumstances in which they take them) would convey to
   a reasonable person that the police are exercising their
   authority to coercively detain the citizen, then the encounter rises to the level of a seizure, the lawfulness of which
   must be analyzed as such.”

.
         We conclude that, under the totality of the circumstances, defendant was seized at the time that Kendoll
asked defendant to consent to the patdown. We discuss the
factors that lead us to that conclusion below. We emphasize
502                                           State v. Prouty

that, although no single act of the troopers may have constituted a seizure of defendant, we do not view each action or
the surrounding circumstances in isolation but analyze the
encounter as a whole.
         Before we begin our discussion of the troopers’ conduct, we note that the location and timing of the encounter
provide context for that discussion. The encounter took place
late at night, on the inner median of I-5, such that there was
highway traffic on either side of defendant and the troopers.
Nelson testified that there was no safe passage across the
freeway because traffic was heavy. Although our analytical focus is primarily on the troopers’ conduct, the location
and timing of the encounter provide context in determining
the coerciveness of the conduct at issue. 

 (“the content of
[an officer’s] questions, the manner of asking them, or other
actions that police take (along with the circumstances in
which they take them)” can convey that the police are exercising their authority to coercively detain a citizen (emphasis added)); Newton, 

 (considering location and time of night in analysis of whether the defendant
was seized). We begin our analysis with that context in
mind.
         Here, defendant was not seized during his initial
interaction with Nelson. Apart from briefly requesting and
retaining defendant’s identification, Nelson did not communicate with defendant at all during his investigation of the
driver. See Backstrand, 

 (an officer’s request
for and verification of identification does not amount to a
seizure absent an additional show of authority). However,
the encounter became increasingly coercive after Kendoll
arrived on the scene. State v. Courtney, 

, 

, rev den, 

 (2011) (the presence
of two officers at the scene was a relevant consideration in
determining whether there was a show of authority that
restrained the defendant’s liberty). At that point, Kendoll
approached the driver’s side of the vehicle across from
where defendant sat in the front passenger’s seat. Kendoll
bent down to look directly through the window at defendant
where he watched from that position for one to two minutes,
and then continued to watch him from a standing position
until Nelson arrested the driver. That observation, during
Cite as 

 (2021)                              503

an ongoing DUII investigation, communicated to defendant that the troopers were monitoring his location and
behavior.
          The coercive tone of the encounter further increased
when Nelson ordered defendant to exit the car. Although that
order alone may not constitute a seizure here, it bears on our
analysis in combination with other circumstances. State v.
Cline, 

, 

 (2014) (“an
officer’s act of directing a person to alter the person’s course
of travel or to otherwise direct the person’s movements may
often constitute a ‘show of authority’ that effectuates a seizure” depending on “the context of the encounter in which
[the directive] was made”). When Nelson first asked defendant to exit the car, defendant responded by asking why he
was being questioned. Instead of explaining to defendant
why he was being asked to exit the vehicle, Nelson repeated
the order. Courtney, 

 (although officer had
valid reason for asking the defendant to step out of the car,
the fact that that reason may not have been communicated
to the defendant weighed in favor of concluding that the
defendant was seized). Nelson had just arrested defendant’s
companion, and, from defendant’s question, it was clear that
defendant believed that he was enmeshed in the troopers’
investigation. A reasonable person in defendant’s position
would understand from Nelson’s response that Nelson’s
order was not a routine request in effectuating a search, but
instead confirmed that defendant was part of the investigation. State v. Charles, 

, 

 (2014) (based on officer’s disregard of the defendant’s
wife’s explanation for crashed vehicle and request to speak
to the defendant outside, a reasonable person would conclude that he “was the subject of a criminal investigation”
which weighed in favor of conclusion that the defendant was
seized).
         In addition, when Nelson ordered defendant out of
the car, he also told defendant to follow Kendoll’s instructions. A person in defendant’s position would not reasonably
believe that he could walk away from the encounter unless
he was given permission by Kendoll. See State v. Ruiz,

, 

 (2004), rev den, 

 (2005) (order to remove hand from pocket was seizure
504                                           State v. Prouty

because person in the defendant’s position would not reasonably believe that he could walk away from encounter without first removing hand from pocket).
         The troopers’ physical positioning was another circumstance that factors significantly in our analysis. Nelson
stood at the driver’s side door while he ordered defendant
out of the car, and Kendoll stood at the passenger door. In
effect, defendant was surrounded. State v. Rodgers/Kirkeby,

, 

 (2010) (first officer’s presence
at the driver’s side window and second officer’s presence
at the passenger’s side of the car “was a sufficient ‘show of
authority’ that, in combination with the unrelated questions
concerning the items in the car and the request to search
the car,” resulted in a seizure of the defendant). And, when
defendant got out of the car, Kendoll was waiting at the
passenger door. Kendoll stood very close to defendant as he
exited, and he guided defendant toward the front of Nelson’s
car, effectively controlling where defendant moved. A reasonable person would view those actions as a significant
restriction on the person’s freedom of movement.
         Finally, Kendoll’s request for consent to conduct the
patdown, considered in context, communicated to defendant
that he was not free to go. Charles, 

 (in
context, request to perform patdown implied that it was necessary because the defendant would remain in the officer’s
presence for some time). State v. Stevens, 

, 

 (2018) (when the officer asked for the defendant’s
consent to search her backpack when she was about to walk
away, “his question communicated that she was not free to
go”). Given the troopers’ earlier conduct—including Nelson’s
nonresponse to defendant’s question why he was being questioned, Nelson’s directive to follow Kendoll’s instructions,
and Kendoll’s control of defendant’s movements as he exited
the car—Kendoll’s request conveyed to defendant that he
was “not free to terminate the encounter or otherwise go
about [his] ordinary affairs.” Backstrand, 

.
        The state argues that defendant was not seized at
the time that Kendoll asked to patdown defendant, citing
several cases that, in the state’s view, stand for “the wellestablished principle that a passenger is not seized when
Cite as 

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asked to step out of a vehicle, even when the police ask the
passenger potentially incriminating questions or ask for
consent to search.” See, e.g., State v. Parker, 

, 

 (2014) (the defendant passenger was
not seized when officer asked him to step out of the truck,
asked if he had weapons, and sought his consent to search);
State v. Dudley, 

, 

(2011), rev den, 

 (2014) (the defendant passenger
was not seized when officer asked the defendant to step out
of the car and asked whether she possessed any drugs or
weapons); Graves, 

 (the defendant
was not stopped when officer asked her to step out of the car
and walk toward his patrol car and asked questions about
the defendant’s parole status and criminal history).
         The state is correct that, in each of those cases, we
held that the defendant passengers were not seized when
the officers asked the defendants to step out of the car, and
thereafter requested consent to search or inquired about the
defendants’ criminal activity. However, we also explained
that those actions did not convert the encounters into stops
because the officers’ requests “were not coupled with any
other show of authority.” Dudley, 

. That
is, those same requests could amount to a seizure if “coupled
with other coercive actions.” Parker, 

. As
we explained in detail above, that additional show of authority was present here. The troopers both engaged in conduct
that increased the overall coerciveness of the encounter and
provided significant context for Kendoll’s request for consent
to patdown defendant.
         In any case, the question before us is fact-specific.
Backstrand, 

. Although a comparison of the
circumstances in the present case with those in prior cases
is helpful, our focus remains on the unique circumstances
of this case. And, as we observed in Charles, “the inquiry is
not whether each of the officer’s actions here, examined separately, would convey to a reasonable person that the person was not ‘free to terminate the encounter or otherwise
go about his or her ordinary affairs.’ ” 

-85
(quoting Backstrand, 

). Rather, the question is “whether all of the officer’s actions combine to form
a whole greater than the sum of its parts; that is, whether,
506                                             State v. Prouty

based on the totality of the circumstances, a reasonable person would believe that the officer had intentionally and significantly deprived defendant of his freedom of movement.”
Id. at 585.
          In Charles, the defendant was seized when the officer approached the defendant’s home, spoke with the defendant’s wife about criminal conduct, asked the defendant to
speak outside, and then led him to an area outside where the
officer conducted field sobriety tests, read Miranda warnings,
and asked for consent to conduct a patdown. Id. at 587-88.
We explained that, “were we to look at each piece of the
encounter between defendant and the officer independently,
we would not necessarily conclude that any one piece, standing alone, amounted to a stop.” Id. at 584. However, we concluded that all of those circumstances combined “would have
conveyed to a reasonable person that he or she was not free
to end the encounter and depart.” Id. at 587.
          We followed that approach again in Newton. There,
the officer responded to a late-night report of a woman and a
man arguing in a van. The defendant and his girlfriend, R,
were sitting in the van, which was parked in R’s driveway,
when the officer approached to check on R’s welfare. The
officer asked R if she was all right, and then asked her to
step out of the van so that he could speak to her. The conversation that followed took place behind the van, and, after
learning that the defendant’s license was suspended, the
officer asked R questions about whether the defendant had
been driving. Newton, 

. We held that
the defendant was seized based on the combination of several circumstances: (1) the encounter took place on a private
driveway; (2) the intrusion occurred late at night; (3) the officer “conveyed suspicion that defendant had done something
to harm R”; and (4) the officer “physically positioned himself behind the van” while he questioned R, which “hindered
defendant’s ability to leave the encounter and was a ‘show
of authority’ that the van would be staying put until [the
officer] completed his investigation.” 

.
         Here, as in Charles and Newton, the troopers’
actions “combine[d] to form a whole greater than the sum
of its parts,” and we, therefore, conclude that defendant was
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seized at the time that Kendoll requested defendant’s consent to perform the patdown. Charles, 

.
         Because we conclude that defendant was seized
under Article I, section 9, we must analyze the lawfulness
of the seizure. The state does not argue that the troopers
had reasonable suspicion of criminal activity, it argues only
that the seizure was justified by officer-safety concerns.
Therefore, the only question before us with respect to the
lawfulness of the stop is whether it was justified under the
officer-safety doctrine.
         Article I, section 9, does not prohibit an officer from
taking “reasonable steps to protect [the officer] or others if,
during the course of a lawful encounter with a citizen, the
officer develops a reasonable suspicion, based on specific
and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to
others then present.” State v. Bates, 

, 

 (1987). The state bears the burden of establishing that
the officer subjectively believed that the defendant posed a
threat and that the officer’s belief was objectively reasonable. State v. Smith, 

, 

,
rev den, 

 (2016). “An officer’s subjective belief that
a defendant posed a threat is not objectively reasonable if it
is based ‘on intuition or a generalized fear that the person
may pose a threat to the officer’s safety’; rather, it ‘must be
based on facts specific to the particular person.’ ” State v.
Najar, 

, 

 (2017) (quoting
Smith, 

).
         We conclude that the stop was not justified under
the officer-safety doctrine, because the state failed to prove
that the troopers had objectively reasonable beliefs that
defendant posed a threat. The state argues that the troopers’
conduct—namely, Nelson’s order that defendant exit the car
and Kendoll’s request for a patdown—was justified because
Nelson had legitimate concerns for the troopers’ safety after
he learned that defendant was an “armed career criminal.”
Assuming Nelson’s testimony was sufficient to establish his
subjective belief that defendant posed a threat to the troopers,
that belief was not objectively reasonable under the circumstances given the lack of “specific and articulable facts …
508                                                           State v. Prouty

that would reasonably create a fear for the safety of the
officer or others.” State v. Madden, 

, 

 (2018). Nelson testified that defendant was “docile” and “on the nod” during the encounter. Nothing in the
record suggests that defendant behaved or spoke in a way
that was threatening to the troopers. Although Nelson may
have believed that defendant could be armed based on his
reported status as an “armed career criminal,” that vague
and very broad description unsupported by any further
information is not a specific and articulable fact sufficient to
reasonably create a fear for officer safety here. That generic
report, without more, did not render Nelson’s officer-safety
concerns objectively reasonable. See State v. Dyer, 

, 

 (1998) (officer-safety concern was
not objectively reasonable where the defendant was cooperative and had not “said or done anything that could be interpreted as creating an immediate threat of serious physical
harm” even though the defendant carried a knife and had
a prior conviction for weapons possession); State v. Bailey,

, 

 (2020) (“[T]he mere fact
that a person possesses a weapon does not, per se, render
officer-safety concerns objectively reasonable.”). The state
also points to Nelson’s testimony that it would be unsafe
to search the car with defendant inside of it. That concern,
although legitimate, is the sort of safety concern that is too
generalized to form the basis of an objectively reasonable
belief that defendant posed a threat.2
         As for Kendoll, there are no specific or articulable facts sufficient to establish his subjective belief that
defendant posed a threat, let alone an objectively reasonable one. There is no evidence that Nelson communicated
defendant’s status to Kendoll or that Kendoll was otherwise
aware of that fact. Moreover, Kendoll did not testify that
he had a subjective belief that defendant posed a threat

    2
      We do not suggest that an officer is prohibited from asking a person to step
out of a vehicle that the officer intends to search, absent a specific concern about
that person. As we acknowledged earlier, an officer may make requests of that
nature in effectuating a lawful search without converting the encounter into a
seizure. However, the issue is not whether Nelson’s generalized concern justified
his request that defendant step out of the car, but whether it justified the seizure
as a whole, which seizure included more than just Nelson’s request that defendant leave the car.
Cite as 

 (2021)                                               509

for any reason. To the contrary, Kendoll explained that he
was “relaxed” because he “didn’t have any sense … that
[defendant] was a threat to [the troopers].” Nor is any subjective fear evident in the troopers’ brief conversation prior
to the patdown, when Kendoll offered to search defendant in
response to Nelson’s comment that he wanted “to make sure
that [defendant] didn’t stuff anything on his person because
[the driver was] high on meth.” Because the state failed to
prove that the troopers held objectively reasonable beliefs
that defendant posed a threat, the officer-safety doctrine
does not apply here.
         In sum, we conclude that defendant was unlawfully seized when Kendoll requested consent to perform the
patdown. Therefore, the trial court erred in denying defendant’s motion to suppress.3 We also conclude that that error
was not harmless.
           Reversed and remanded.




    3
      The state makes no argument that the discovery of the evidence was attenuated from the unlawful seizure, and therefore, the evidence discovered after
defendant was unlawfully seized must be suppressed. State v. Miller, 

, 

 (2014) (“Whenever the state has obtained evidence following the violation of a defendant’s Article I, section 9, rights, it is presumed
that the evidence was tainted by the violation and must be suppressed.”); see
also State v. Davis, 

, 674 n 6, 

 (2016) (“The state
makes no argument on appeal that, in the event we conclude that the search of
defendant was unlawful, the challenged evidence was nevertheless admissible.
Absent a developed argument by the state, we conclude that the evidence must be
suppressed.”).