State v. Davis

                                 606

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
        Argued and submitted July 29, reversed November 9, 2022


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                  STEVEN COLBY DAVIS,
                    Defendant-Appellant.
               Josephine County Circuit Court
                    19CR67322; A175028


   Matthew G. Galli, Judge.
   Bruce A. Myers, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   David B. Thompson argued the cause for respondent. Also
on the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
  Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Armstrong, Senior Judge.
   JOYCE, J.
   Reversed.
Nonprecedential Memo Op: 

 (2022)                              607

           JOYCE, J.
         Defendant appeals from a judgment of conviction
for unlawful possession of methamphetamine. In his first
and second assignments of error, defendant argues that
the trial court erred in denying his motion to suppress evidence that an officer discovered on defendant. Because we
conclude that the state failed to establish that the officer’s
inquiry about weapons was permissible, we reverse.1
         We review the denial of defendant’s motion to suppress for legal error. State v. Heise-Fay, 

,

 (2015). We are bound by the trial court’s express
and implicit factual findings, so long as constitutionally sufficient evidence in the record supports them. State v. Ehly,

, 

 (1993). “If findings of historical
fact are not made on all pertinent issues and there is evidence from which such facts could be decided more than one
way, we will presume that the facts were decided in a manner consistent with the court’s ultimate conclusion.” 

 We
thus state the facts, which are taken from the officer’s testimony at the motion to suppress hearing, consistently with
our standard of review.
          Officer Pruitt responded to a call of a “disturbance”
at a gas station around 10:00 p.m. Dispatch told Pruitt that
a male was “screaming at a female” in a vehicle and that
the “female is crying.” The person reporting the disturbance
said that the “male and female are the only occupants in the
vehicle.”
         When Pruitt arrived to the scene, he saw several
cars in the parking lot, gas station attendants, and people
in the gas station store. Pruitt could hear the “male and
female yelling at each other.” At that point, he suspected
that the car’s occupants could be engaged in disorderly conduct or harassment and he did not know whether—or if—
one of the occupants was an “aggressive party.” Pruitt introduced himself to the male, who is the defendant in this case.
     1
       Our resolution of defendant’s first and second claims of error obviates the
need to address his third assignment of error, which challenges the trial court’s
imposition of court-appointed attorney fees. Similarly, it obviates the need to
address his fourth and fifth assignments of error relating to certain special conditions of probation.
608                                             State v. Davis

Defendant said “something to the effect of we’re just arguing. She’s being overdramatic. She’s being really immature.”
Defendant was also calling the woman in the car, Sullivan,
names.
         Pruitt asked defendant to step out of the car. As
defendant was getting out of the car, Pruitt asked defendant
if he had any weapons on him. Defendant said no. Pruitt also
asked for and obtained defendant’s consent to pat him down
for weapons; he found none. Pruitt then asked defendant if
there were any weapons in the vehicle. Defendant responded
that there was a gun in the car. Defendant then explained
that he did not know whether he had taken the gun out of
his car earlier in the day or if it was still there. A second
responding officer later found a concealed gun underneath
the driver’s seat. Pruitt handcuffed defendant and searched
him again. In defendant’s pocket, Pruitt found a baggie of
methamphetamine. The state subsequently charged him
with possession of methamphetamine.
         Defendant moved to suppress the drug evidence. As
relevant to the question on appeal, he asserted that Pruitt’s
question about the presence of weapons in the vehicle was
not justified by the officer safety exception to the warrant
requirement or the community caretaking or emergency
aid exceptions to the warrant requirement, and was not
supported by reasonable suspicion “of any criminal wrongdoing[.]” The state, relying on State v. Miller, 

, 

, adh’d to as modified on recons, 

, 

 (2018), argued that Pruitt’s weapons inquiry was permitted because he was investigating a domestic disturbance
by himself and he reasonably believed that there could be
a safety risk to himself or others, including defendant or
Sullivan, if weapons were present.
         At the suppression hearing, Pruitt testified consistently with the facts set forth above. Additionally, he
testified that he had asked defendant to get out of the car
for several reasons: Pruitt was the only responding officer
and he wanted to de-escalate and separate defendant from
Sullivan to “make it safer for [him], safer for them, safer
for the public[.]” He also explained that he did not know
during the course of his investigation whether defendant
Nonprecedential Memo Op: 

 (2022)            609

or Sullivan (or neither) was an “aggressor” in the possible
domestic violence. Additionally, the fact that defendant was
calling Sullivan names and minimizing the incident raised
Pruitt’s suspicions:
      “I know from training and experience that when I’m
   dealing with kind of domestic violence-type stuff, you
   know, maybe there’s times where someone can try and
   really downplay that when maybe there is something going
   on, which kind of furthered my need to investigate what
   this disturbance was about.”
         The trial court denied defendant’s motion to suppress. It agreed with defendant that Pruitt’s inquiry about
weapons was not justified by the community caretaking or
emergency aid exceptions nor by “officer safety concerns.”
The trial court concluded, however, that the question about
weapons was justified under ORS 131.615. That statute
allows an officer who “reasonably suspects that a person
has committed or is about to commit a crime” to stop that
person and “make a reasonable inquiry.” ORS 131.615. The
trial court reasoned that Pruitt was concerned about the
possibility of domestic violence and disorderly conduct and
therefore Pruitt lawfully stopped defendant. The trial court
further observed that ORS 131.615(3)(c) and (4) allow an
officer to ask about the presence of weapons and consent
to search for weapons in certain circumstances and that,
under those statutes, Pruitt’s question about weapons was
therefore permissible.
          Defendant sought reconsideration of the trial court’s
ruling on the motion to suppress in light of State v. Arreola-Botello, 

, 

 (2019), a case that addressed
the subject matter limitations that apply to encounters
between officers and community members. The trial court
denied defendant’s motion and adhered to its prior decision.
The trial court noted that Arreola-Botello did not abrogate
ORS 131.615, the statute upon which it had relied initially
in denying defendant’s motion to suppress; to the contrary,
the court in Arreola-Botello specifically noted that the
Oregon legislature simply sought to codify the constitutional limitations on detentions of people who are subject
to police investigations. The trial court then concluded that
Arreola-Botello stood for the proposition that inquiries and
610                                             State v. Davis

requests by officers must be reasonably related to the reason
that the officer is on the scene in the first place. The trial
court found that Pruitt’s actions were consistent with the
limitations described in Arreola-Botello. More specifically,
the trial court found that Pruitt was called to the scene
based on reports “of a man and woman screaming at each
other within a vehicle, that was only verbal ‘so far.’ ” The
trial court further found that Pruitt was “concerned about
domestic violence” when he arrived at the scene because
defendant and his companion were still screaming at one
another and defendant attempted to minimize the incident.
In light of those facts, and noting that it “is not unusual for
a verbal argument of this degree to escalate into hitting or
slapping; and in some cases, even the use of a weapon[,]”
the trial court concluded that Pruitt “had reasonable suspicion that an assault had occurred or was about to occur.”
In short, Pruitt’s inquiry about a weapon “was reasonably
related” to the stop.
         On appeal, defendant reprises his argument that
Pruitt’s question about the presence of weapons in the car
was unlawful. The parties agree that the weapons inquiry
causally contributed to the discovery of the methamphetamine. The single question we must resolve is whether Pruitt
exceeded the “constitutionally permissible boundaries of the
stop.” Miller, 363 Or at 379. Under Article I, section 9, of the
Oregon Constitution, a stop that is “reasonable for a limited
investigatory purpose is not necessarily reasonable for all
purposes[.]” Arreola-Botello, 

; see also 

(concluding that ORS 131.615 is consistent with Article I,
section 9’s limitations). Rather, an officer who has seized a
person is limited to weapon inquiries that “are reasonably
related to [the officer’s] investigation and reasonably necessary to effectuate it[.]” State v. Jimenez, 

, 

 (2015); Miller, 363 Or at 381 (applying Jimenez to
stops based on reasonable suspicion to investigate a crime).
To demonstrate that a weapons inquiry meets that standard, the state must show 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.” Jimenez, 

. Moreover, “the officer’s
Nonprecedential Memo Op: 

 (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. Id. at 429, 430.
         As his arguments are framed below and on appeal,
we understand defendant to acknowledge that Pruitt had
some generalized subjective safety concerns. But in defendant’s view, those generalized concerns did not justify the
inquiry because Pruitt failed to articulate any circumstance-specific danger to justify the inquiry about weapons, which
in turn necessarily means that Pruitt’s perceptions were not
objectively reasonable.
          We agree. Here, as in Jimenez, the record is devoid
of any evidence that Pruitt had circumstance-specific concerns related to the stop about the presence of weapons that
could have been mitigated by asking defendant whether
there was a weapon in the car. See Miller, 363 Or at 384-85
(observing that in Jimenez, “[a]lthough the state argued that
various circumstances could have given rise to a perception
of danger, we emphasized that the officer did not identify
any of those circumstances as giving rise to a perception of
danger”); compare id. at 385-86 (concluding that “the evidence permitted the trial court to find that the officer …
had perceived a danger based on circumstances specific to
the stop of [the] defendant” where “the officer … explained
why the circumstances of [the] stop had caused him to have
concern for his safety”). Pruitt did not testify, for example,
that defendant’s or Sullivan’s actions or demeanor had given
rise to safety concerns. Nor did he provide details about
how or why domestic disturbance investigations pose particular safety concerns that a question about the presence of
weapons in the car would help alleviate. Compare Jimenez,

 (observing that the officer did not testify that
the defendant’s demeanor or motions gave rise to safety
concerns that could be addressed by asking about weapons) with Miller, 363 Or at 387-88 (question about weapons
permissible where the officer testified that performing the
field sobriety tests would put him “in a compromising situation[,]” that “[t]here is absolutely nothing safe about administering field sobriety tests on the side of the road at 12:30
in the morning”; and that, to address that risk, he needed
612                                             State v. Davis

to know if the defendant was carrying a weapon). Pruitt testified that he had asked defendant to get out of the car for
safety reasons, but he neither explained what those safety
concerns were nor, more importantly, did he explain what,
if any, safety concerns gave rise to the question about the
presence of weapons in the car once defendant was out of the
car.
         In short, the record in this case simply does not
support a finding that the officer in fact perceived a danger
that could be alleviated by asking about weapons in the car,
which is necessary to establish a logical relationship between
the weapons inquiry and the stop. See Jimenez, 

 (“[I]f the officer does not have at least a circumstance-specific safety concern, then the officer’s weapons inquiry
has no logical relationship to the … investigation.”). We
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, 

, 

 (2020) (quoting
State v. Pichardo, 

, 

 (2017)). And
we can envision any number of reasons that the officer here
might have had concerns about the presence of weapons in
the car, given the circumstances that he faced. But the state
needed to establish the necessary facts by evidence; it is not
enough for this court or the trial court to infer what the officer’s concerns were in the absence of evidence in the record
to support that perception in these circumstances. Jimenez,

 (“When an officer does not reasonably perceive
a danger, we will not presume that such danger nevertheless exists or that the officer’s inquiry about weapons would
address such danger.”); 

 (“[W]e cannot infer [the
necessary] facts in every case or in this case in particular.”).
        Reversed.