State v. Keck

296                         September 27, 2023                           No. 502

             Submitted June 21, 2022, affirmed September 27, 2023


                          STATE OF OREGON,
                           Plaintiff-Respondent,
                                     v.
                         TIMOTHY JON KECK,
                          Defendant-Appellant.
                       Polk County Circuit Court
                         19CR84339; A174471
                                    

    Defendant appeals from a judgment of conviction for felon in possession of a
firearm, assigning error to the denial of his motion to suppress evidence obtained
during a traffic stop. He challenges the trial court’s determinations that officer-safety concerns, reasonable suspicion, and probable cause justified extending the
traffic stop to order him out of his truck and to handcuff him, which led to discovery of the disputed evidence. Held: The trial court did not err. The officer’s belief
that defendant was on probation for assault and carried a dagger in the truck
supported a conclusion that the officer had reasonable suspicion that justified
extending the traffic stop to investigate whether defendant was violating the law.
See ORS 166.240 (carrying a concealed dagger is a misdemeanor). Likewise, reasonable suspicion justified the officer’s inquiries about weapons and his ordering
defendant out of the truck, as those actions reasonably related to the officer’s
investigation. Within that context, officer-safety concerns justified patting defendant down for weapons. Handcuffing defendant to conduct the patdown was a
reasonable precaution taken to ensure that the patdown itself proceeded safely,
particularly in light of defendant’s statement that he had a knife on his belt and
a multi-tool with him.
    Affirmed.



    Rafael A. Caso, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender,
Office of Public Defense Services, filed the brief for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
Cite as 

 (2023)   297

  ORTEGA, P. J.
  Affirmed.
298                                                      State v. Keck

          ORTEGA, P. J.
         Defendant appeals from a judgment of conviction
for felon in possession of a firearm, assigning error to the
denial of his motion to suppress evidence obtained during
a traffic stop. He challenges the trial court’s determination
that officer-safety concerns, reasonable suspicion, and probable cause justified extending the traffic stop to order him
out of his truck and to handcuff him, which led to discovery of the disputed evidence. We conclude that the officer’s
actions were justified and, accordingly, affirm.
          “We review [a trial court’s] denial of a motion to
suppress for legal error and are bound by the trial court’s
explicit and implicit factual findings if evidence in the
record supports them.” State v. Bailey, 

,

 (2020). We take most of the relevant historical
facts, which are undisputed, from the audio transcript of the
officer’s body camera recording of the traffic stop. Although
not admitted into evidence, “the recording was played into
the record at the hearing on the motion to suppress and
thereby made part of the transcript,” as in State v. Soprych,

, 

 (2023).
         Officer McBride pulled defendant over for a traffic violation around 4:30 a.m. while defendant was on his
way to do construction work. Upon approaching defendant’s
truck, McBride saw the handle of a knife tucked between
the driver and passenger seats and told defendant, “I see
the knife there. … As long as it stays there, we’re good.”
Defendant complied, as he did throughout the encounter.
McBride assessed that it was “a large knife” and, based
on his training and experience identifying and evaluating
weapons, he believed that what he saw was the handle of
a dagger.1 McBride testified that what he saw at the time
triggered officer-safety concerns.
         McBride contacted dispatch by radio to run a
warrant check on defendant and requested a cover unit.
Dispatch informed McBride that defendant was on probation for assault, but defendant denied that when McBride

   1
     Carrying a dagger concealed upon the person is a Class B misdemeanor.
ORS 166.240.
Cite as 

 (2023)                                               299

sought his confirmation.2 As McBride inquired about the
conditions of defendant’s probation, he advised, “now I’m
just waiting for another officer to get here so you and I are
both safe.” McBride testified that his impression was that
the knife could be an “easily accessible weapon,” and that
there would be “no reason to have a knife stuffed down in
there.”
          McBride asked whether defendant had “other weapons in the vehicle,” and defendant replied that he had his
work tools. McBride told defendant that, given the knife’s
approximately six-inch handle, he thought its blade could be
longer, and defendant responded, “probably about 10 inches
… like a machete.” McBride told defendant, “That’s going
to be a prohibited weapon, per your probation, for you to
possess.” They continued to talk about the knife and about
defendant’s probation, and McBride asked again, “So besides
that knife there, no other weapons?” Defendant responded,
“There’s another knife over here”—apparently referring
to an area inside of the truck—and “I don’t know why it’s
there.”
        When Officer Hendrick arrived, McBride told him,
“So [defendant has] probably about a 14-inch knife sitting
down on the seat right next to him” and “I’m going to pull
him out, pat[ ] him down real quick here.” McBride then
instructed defendant to get out of the truck. After defendant
did so, McBride said, “Put your hands behind your back.
You’re not under arrest. I’m just making sure you don’t have
any weapons.” McBride testified that his plan in asking
defendant to get out of the truck was “to make sure there
were no other weapons with him.”
        As defendant stood outside of the truck with his
hands behind his back, McBride asked, “So do you have any
other weapons on you, on your person right now?” Defendant

    2
      Defendant explained to McBride that he was not on probation for assault
but rather for a 2003 Colorado conviction for attempted contribution to the delinquency of a minor. McBride confirmed with dispatch that records showed the
defendant was on probation for assault; however, the Oregon Department of
Corrections had provided that information in error. We note these facts as contextual but do not address them in our analysis because they are irrelevant to our
conclusion that McBride had reasonable suspicion to extend the stop to conduct
further investigation.
300                                                          State v. Keck

replied that he had a pocketknife on his belt and also a
multi-tool with him. McBride continued:
      “So palms together. … Just for my safety for right
   now—you’re not under arrest, but I’m going to put you in
   handcuffs ….
       “…
      “Since … you are in handcuffs—right now you are
   not under arrest; you’re only being detained. I’m going to
   advise you of Miranda rights, though ….”
         McBride then advised defendant of his Miranda
rights and asked defendant, “Do you have any other weapons?
Firearms? Guns? Drugs? Anything like that?” Defendant
told McBride that he had a .22-caliber revolver in the floorboard in the back seat. McBride asked, “May I retrieve that
from your vehicle?” Defendant responded, “Yes, sir, you
may.” McBride searched defendant’s truck and retrieved the
revolver. During the interaction, defendant was calm, cooperative, not argumentative, pleasant, followed McBride’s
directions, and did not try to reach for anything, including
the knives.
         The state charged defendant by indictment with
felon in possession of a firearm (the revolver), ORS 166.270,
and carrying a concealed weapon (the pocketknife), ORS
166.240. He moved to suppress all the evidence obtained as
a result of the search of his person and his truck, including his statements, the knives, and the revolver, challenging McBride’s authority to stop him and run the warrant
check. Defendant alternatively argued that, even if the stop
was lawful, the officer lacked an objective basis for safety
concerns and lacked reasonable suspicion or probable cause
that defendant had committed a crime to justify extending
the traffic stop.3
         The trial court denied defendant’s motion to suppress, first concluding that the traffic stop and the warrant check were lawful. The court also concluded that
McBride’s observation of the knife handle, along with his
    3
      Defendant also argued that he did not consent but rather merely acquiesced
to the searches of himself and his truck, but he does not renew that argument on
appeal.
Cite as 

 (2023)                                               301

belief that defendant was not being honest about his probation and that defendant was in fact on probation for assault,
despite that belief being mistaken, was enough to give rise
to objective officer-safety concerns that justified McBride’s
questions about weapons.4 Furthermore, the court concluded that McBride’s belief that defendant was a felon on
probation—and defendant’s admission that he was in fact
a felon, though not for assault—indicated that McBride’s
subjective belief that defendant was violating his probation
or was in possession of a restricted weapon was objectively
reasonable.5 The court noted that defendant presented no
evidence to contradict that McBride’s training and experience justified his belief that what he saw appeared to be the
handle of a dagger.
        In a stipulated facts trial, the court convicted defendant of one count of felon in possession of a firearm, based
on McBride’s discovery of the revolver in defendant’s truck,
and acquitted defendant of the count of carrying a concealed
weapon.
         On appeal, defendant assigns error to the trial
court’s denial of his motion to suppress. He argues first
that McBride had no objectively reasonable officer-safety
concerns to justify expanding the traffic stop to the point
of handcuffing him outside the truck. Second, he argues
that, in the absence of officer-safety concerns, handcuffing
him was an unlawful arrest because McBride did not have
probable cause or reasonable suspicion that defendant was
a felon in possession of a restricted weapon or was violating his probation. According to defendant, neither McBride’s
mistaken belief that defendant was on probation for assault
nor McBride’s observation of the handle of the knife was
sufficient to raise probable cause or reasonable suspicion,
because the first provided no information about defendant’s
conduct and the second was speculative.

     4
       McBride testified that defendant did not know the name of his probation
officer, while the transcript of the audio recording shows that defendant provided
the name of his probation officer upon McBride’s request. However, that fact does
not affect any aspect of our analysis.
     5
       In his memorandum in support of his motion to suppress, defendant conceded that he was a convicted felon based on a 2003 conviction in Colorado for
attempt to contribute to the delinquency of a minor.
302                                               State v. Keck

         The state contends that the trial court did not err.
It argues that the court properly concluded that McBride’s
observation of what he believed to be a dagger next to defendant gave him objectively reasonable officer-safety concerns that justified asking defendant about weapons. The
state alternatively contends that McBride’s extension of the
traffic stop was justified by reasonable suspicion, based on
his belief that defendant was on probation for assault and
that defendant could be violating his probation or carrying a restricted weapon. According to the state, McBride’s
reasonable suspicion independently justified taking steps
to investigate those crimes, including asking defendant
about weapons and ordering him out of the truck. Finally,
the state contends that defendant’s statement that he had
a pocketknife in his belt also raised officer-safety concerns
that justified handcuffing and patting defendant down.
After reviewing the record, we agree that the trial court did
not err.
         The Oregon Constitution protects the right of persons to be secure “against unreasonable search, or seizure[.]”
Or Const, Art I, § 9. A traffic stop is a temporary investigative
seizure that implicates Article I, section 9. State v. Arreola-Botello, 

, 

 (2019). “Article I,
section 9, ensures that officers do not turn minor traffic violations into criminal investigations without a constitutional
basis for doing so.” 

. All investigative activities
during a traffic stop “must be reasonably related to the purpose of the traffic stop or supported by an independent constitutional justification.” State v. Sherriff, 

, 

 (2020). Justifications for a warrantless
extension of a traffic stop exist when an officer’s safety is
at issue or when the officer develops a reasonable suspicion
that the suspect is involved in criminal activity. See State
v. Bates, 

, 

 (1987) (explaining
the officer-safety exception to the warrant requirement); see
also State v. Watson, 

, 

 (2013)
(explaining the reasonable suspicion exception).
         The parties’ dispute centers on whether officer-safety concerns or reasonable suspicion permitted McBride’s
actions—asking about weapons, ordering defendant out of
Cite as 

 (2023)                                               303

the truck, handcuffing and patting him down—which led
to the discovery of the revolver that prompted defendant’s
arrest and conviction.
         We begin by addressing whether McBride’s actions
were supported by reasonable suspicion from the point that
he concluded the investigation of the traffic stop.6 To establish that an officer had reasonable suspicion,
    “[a] court (1) must find that the officer[ ] actually suspected
    that the stopped person had committed a specific crime or
    type of crime or was about to commit a specific crime or
    type of crime, and (2) must conclude, based on the record,
    that the officer[’s] subjective belief … was objectively reasonable under the totality of the circumstances existing at
    the time of the stop.”
State v. Maciel-Figueroa, 

, 

(2017). Reasonable suspicion can be based on inferences if
the officer can point to “specific and articulable facts” about
the specific defendant “that give rise to a reasonable inference that the defendant committed or was about to commit a
specific crime or type of crime.” Id. at 165. Reasonable suspicion may justify extending a traffic stop to conduct “activities
that would not have been permissible based on the original
purpose of [a] stop.” Watson, 

 (during a traffic
stop, an officer’s “reasonable suspicion that [the] defendant
had marijuana in his car” justified asking questions that
were reasonably related to the investigation of whether the
defendant was in possession of marijuana).
        As we explain below, the evidence in the record supports a conclusion that McBride reasonably suspected that
defendant was carrying a restricted weapon, and he therefore had independent constitutional justification to investigate that offense. ORS 166.240(1) provides that “any person”
who
    “carries concealed upon the person any knife having a blade
    that projects or swings into position by force of a spring
    or by centrifugal force, [including] any dirk, dagger … or
    any similar instrument by the use of which injury could be
    6
      On appeal, defendant abandons his prior challenges to the stop and the
warrant check, so we limit our review to the lawfulness of McBride’s actions after
he stopped defendant.
304                                              State v. Keck

   inflicted upon the person or property of any other person,
   commits a Class B misdemeanor.”
“A dagger is defined as a short knife used for stabbing.” State
v. Ruff, 

, 

, rev den, 

(2009) (internal quotations omitted).
         Here McBride saw what he reasonably believed,
based on his training and experience, to be a knife large
enough to constitute a dagger. As the record shows, after
defendant told McBride that the knife sitting by defendant was “probably about 10 inches,” McBride immediately
replied, “That’s going to be a prohibited weapon, per your
probation.” Accordingly, he had reasonable suspicion to support extending the traffic stop to investigate whether defendant possessed a restricted weapon. McBride’s reasonable
suspicion also justified his inquiries about weapons and his
ordering defendant out of the truck, as those actions reasonably related to the investigation, particularly in light of
defendant’s subsequent statements that the knife blade was
“probably about 10 inches” and that there was another knife
in the truck.
          Defendant cites several cases to argue that McBride’s
conclusion that the knife handle indicated a dagger was
mere speculation and did not support reasonable suspicion.
See State v. Nelson, 

, 

(2014) (a knife with a three and one-half inch blade could not
support a conviction for carrying a concealed weapon); State
v. McJunkins, 

, 

 (2000) (an
officer’s description of a concealed knife as “more or less like
a skinning knife, a hunting knife” was insufficient evidence
that the knife was a “dirk” or “dagger”); Ruff, 

 (a sword did not qualify as a dagger but qualified as
an “other similar instrument” for the purpose of an officer’s
reasonable suspicion that the defendant carried a concealed
weapon). He distinguishes his case from Ruff, arguing that
the knife in his case was not a samurai sword or similar
to be compared to the “other similar instrument” provision
under the applicable statute.
        Neither Nelson nor McJunkins helps defendant,
because in those cases we addressed the sufficiency of the evidence for a conviction rather than for an officer’s reasonable
Cite as 

 (2023)                                                 305

suspicion of criminal activity, as in the present case. Ruff
likewise does not help defendant, because in that case we
assessed whether the sword qualified as an “other similar
instrument” after concluding that the sword did not qualify
as a dagger, while here the evidence supports a conclusion
that McBride had reasonable suspicion to believe that the
purported knife was a dagger.7 McBride was therefore justified under Sherriff to investigate whether defendant was
violating the law.
         We turn to whether McBride’s actions—handcuffing
and patting defendant down—after ordering defendant out
of the truck were also justified. The parties’ dispute here
centers on whether officer-safety concerns justified handcuffing defendant. In defendant’s view, despite the presence
of the knife, his “wholly cooperative and calm” demeanor
indicated that no safety concerns justified handcuffing
him. Bailey, 

 (“where a defendant cooperates with police, in the absence of any threatening behavior by the defendant, generalized safety concerns … are
insufficient to justify an officer[-]safety search”). According
to defendant, in the absence of safety concerns, handcuffing him amounted to an unlawful arrest. We are again
unpersuaded.

     7
       Defendant also relies on other cases. See State v. Moore, 

, 

 (2021) (odor of unburnt marijuana and indication of the presence of “a
very small amount” of marijuana did not support reasonable suspicion that defendant possessed an unlawful amount of marijuana); State v. Bowen, 

, 

 (2021) (the act of traveling on a public highway known to be
part of a “drug trafficking corridor” and the defendant’s nervousness were insufficient to give rise to reasonable suspicion of unlawful delivery of marijuana);
State v. Schmitz, 

, 

 (2019) (“An officer’s training and
experience may help an officer interpret a specific and articulable fact in a given
situation or event, but training and experience is not, in and of itself, a specific
and articulable fact that can … establish reasonable suspicion of current drug
possession.”). Again, none of these cases helps defendant. Defendant relies on
Schmitz to argue that McBride failed to explain what in his training and experience made him think that the knife handle that he observed was of a dagger,
but Schmitz’s conclusion that the officer failed to meet the reasonable suspicion
standard was based on the officer’s lack of a “specific and articulable fact particularized to [the] defendant,” rather than on the officer’s training and experience. Schmitz, 299 Or App at 178. We do not address Bowen and Moore, because
defendant does not explain how those cases relate to his case, except for stating
that “[a]s in those cases, the further inferential leaps from the observation of the
knife-handle to conclude that the knife was likely a dirk or dagger were steps too
far.”
306                                                State v. Keck

       The officer-safety exception to the warrant requirement permits an officer
   “to take reasonable steps to protect himself or others if,
   during the course of a lawful encounter with a 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.”
Bates, 

. The state carries a two-part burden
if it invokes the officer-safety doctrine to justify a warrantless search. First, the state must prove that an officer had
a “subjective reasonable suspicion” that the defendant posed
an immediate threat of serious physical injury. State v.
Ramirez, 

, 

 (2020). Second,
the state must prove that, under the totality of the circumstances, the officer’s subjective safety concerns were objectively reasonable, and that the officer’s response to those
concerns was objectively reasonable. 

 The totality of the
circumstances for the purpose of our evaluation includes the
“entire encounter as it objectively transpired.” 

. “To
be objectively reasonable, the officer’s safety concerns must
be based on facts specific to the particular [suspect], not on
intuition or a generalized fear that the person may pose a
threat to the officer’s safety.” State v. Sarmento, 

, 

 (2019) (internal quotation marks
omitted).
         Here, we likewise agree with the trial court that
the state met its burden to show that McBride had specific
articulable officer-safety concerns that justified his actions
up to the point of handcuffing defendant. As an initial matter, reasonable suspicion justified McBride’s investigation of
defendant for possible law violations, as explained above.
         Within the context of McBride’s lawful investigation,
officer-safety concerns likewise justified patting defendant
down for weapons. See State v. Castillo-Lima, 

, 

 (2015), rev den, 

 (2016) (“an officer
may conduct a patdown of a person under the officer-safety
exception if the officer has a reasonable basis to believe that
the person poses a threat to the officer’s safety”). As the trial
court found, the specific facts known to McBride at the time
Cite as 

 (2023)                             307

he ordered defendant out of the truck (though not correct)
were that defendant had a knife with an approximately
10-inch blade with him, was not being straight about his
probation, and acknowledged that he had other knives in
the vehicle. Despite defendant’s cooperative behavior, those
facts support the court’s conclusion that, “under the totality
of the circumstances,” McBride’s “subjective safety concerns
were objectively reasonable.” Ramirez, 

;
compare Bailey, 

 (“the mere fact that a person possesses a weapon does not, per se, render officer-safety
concerns objectively reasonable”) with City of Portland v.
Weigel, 

, 

 (2016) (given other
circumstances, officers were not required to trust a suspect’s
cooperative behavior in making a safety-concern determination). Accordingly, under the Bates standard, patting defendant down was a reasonable step to ensure McBride’s safety
during the investigation.
         Officer-safety concerns further justified McBride’s
decision to handcuff defendant. In addition to the facts above,
defendant’s acknowledgment that he had a knife on his belt
and a multi-tool with him, immediately after McBride specifically indicated that he was going to pat defendant down for
weapons, substantiated McBride’s safety concerns. Compare
State v. Austin, 

, 

 (1996),
rev den, 

 (1997) (a defendant’s admission that
he had a BB gun during an investigatory stop was a reasonable basis that justified ordering him to the ground for
officer-safety concerns) with State v. Lora, 

, 

 (2021) (officers’ observation of a pocketknife on a suspect’s belt did not justify handcuffing the suspect for officer safety while patting him down because, in
addition to the suspect being cooperative throughout the
encounter, at the time the officers decided to handcuff the
suspect, the knife had been removed by the officers). Here,
despite defendant’s cooperative conduct, the totality of the
circumstances—including that defendant still had the knife
on his person—at the time of the patdown supports a conclusion that handcuffing him to conduct the patdown was a
reasonable “precaution[ ] taken to ensure that the patdown
itself proceeded safely.” Bailey, 

 (in
assessing whether officer-safety concerns existed, we look at
308                                             State v. Keck

“whether, at the time that the[ ] [officer] decided to conduct
a patdown search, it was objectively reasonable for the officer[ ] to suspect that defendant posed an immediate threat
of serious physical injury”).
        Article I, section 9, therefore did not forbid McBride
patting defendant down for weapons or handcuffing defendant to conduct the patdown, because those were “reasonable steps to protect” McBride as he lawfully investigated
whether defendant possessed restricted weapons. Bates, 

.
         We do not address any issues concerning the duration of defendant’s handcuffing, because defendant’s challenge is focused on whether McBride had reasonable suspicion or safety concerns to justify handcuffing him; he does
not object to the duration of the handcuffing. See State v.
Madden, 

, 

 (2021) (handcuffing a suspect may transform a detention associated with
a stop into an arrest when the duration of the handcuffing
outlasts the officer-safety considerations). We likewise do
not address any matters relating to after defendant was
handcuffed—which includes the lawfulness of the search of
defendant’s truck and the seizure of the revolver that gave
rise to defendant’s conviction—because defendant does not
present any specific argument concerning those matters. We
thus assume that defendant validly consented to the search
of his truck upon receiving the proper Miranda warnings,
which justifies the seizure of the revolver.
         In sum, we conclude that McBride’s actions up to
the point of handcuffing defendant did not violate defendant’s constitutional rights. The trial court therefore did not
err in denying defendant’s motion to suppress.
        Affirmed.