State v. Whitlock

No. 525               July 31, 2024                  107

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
              KLINT ADAM WHITLOCK,
                 Defendant-Appellant.
               Lane County Circuit Court
                 19CR15412; A176847

  Bradley A. Cascagnette, Judge.
  Argued and submitted April 24, 2023.
   Stephanie Hortsch argued the cause for appellant. On
the brief were Ernest G. Lannet, Chief Defender, and Mark
J. Kimbrell, Deputy Public Defender, Criminal Appellate
Section, Office of Public Defense Services.
   Emily N. Snook, 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, Powers, Judge, and
Hellman, Judge.
  HELLMAN, J.
  Reversed and remanded.
108                                                       State v. Whitlock

          HELLMAN, J.
         Defendant appeals from a judgment of conviction for
felon in possession of a restricted weapon, ORS 166.270(2),
assigning error to the trial court’s denial of his motion to
suppress evidence obtained during an officer-safety search.1
He asserts that the police officer’s subjective suspicion that
defendant posed an immediate threat of serious physical
injury to the officer was not objectively reasonable. As a
result, defendant argues, the warrantless search was not
justified by the officer-safety exception, and the trial court
should have granted his motion to suppress. We agree, and
reverse.
         “ ‘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. Keck, 

, 

 (2023) (quoting State v. Bailey, 

, 

 (2020)).
         “Article I, section 9, of the Oregon Constitution recognizes a citizen’s right ‘to be secure in their persons …
against unreasonable search, or seizure.’ To that end, warrantless searches are presumed to be unreasonable and
must be justified by a recognized exception to the warrant
requirement.” Bailey, 

. The warrant exception at issue here, the officer-safety exception, 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.’ ”

 (quoting State v. Bates, 

, 

(1987)).

   1
     ORS 166.270(2) provides in relevant part:
   “Any person who has been convicted of a felony under the law of this state or
   any other state, or who has been convicted of a felony under the laws of the
   Government of the United States, who owns or has in the person’s possession
   or under the person’s custody or control any instrument or weapon having a
   blade that projects or swings into position by force of a spring or by centrifugal force … commits the crime of felon in possession of a restricted weapon.”
Cite as 

 (2024)                                 109

         “ ‘[U]nder the officer-safety doctrine, the state bears
a two-part burden of proof and persuasion’ to justify a warrantless search.” Bailey, 

 (quoting State v.
Ramirez, 

, 

 (2020)). Under
the first part, “the state must prove that an officer had subjective reasonable suspicion that the person searched posed
an immediate threat of serious physical injury.” 

 (internal quotation marks omitted). Then, under the second part,
“the state must 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 (2) the officer’s response to the safety concerns was, itself, objectively reasonable.” 

 (internal quotation marks and ellipses omitted). Because defendant does
not challenge the officer’s subjective suspicion, we focus on
whether that suspicion was objectively reasonable.
         We briefly address the underlying facts. A police
officer responded to a car accident and interacted with
defendant for less than two minutes before conducting an
officer-safety search. During that search, he discovered a
spring-loaded knife on defendant’s person. Defendant filed
a pretrial motion to suppress evidence obtained from the
search. The trial court found the following:
      “[T]he officer responded to this scene because there was
   a report of erratic driving, leading to a truck in a ditch.
   It was reported that [defendant] had left the scene and
   returned.
      “When the officer arrived at the scene and confronted
   [defendant] originally, his hands were in his pockets at the
   outset of the investigation.
            “[The officer] saw a bulge in the pants’ pocket.
   Throughout this interaction, [defendant] was extremely
   emotionally labile. He made a statement that he was
   recently involved in a domestic breakup of some sort that
   led to the erratic behaviors leading up to this encounter.
      “And, further, [defendant] was exhibiting drastic hand
   movements, fluctuating from wrapping around his body to
   swinging swiftly and abruptly out towards the side, including next to and or touching his pants’ pockets.”
110                                        State v. Whitlock

The court thereafter denied defendant’s motion to suppress,
concluding that those facts led to a “subjective, reasonable
belief of an immediate threat of serious, physical injury”
and that under the totality of the circumstances, the officer’s concern was objectively reasonable.
         We accept the court’s factual findings and nonetheless conclude that those findings do not show that “the officer’s subjective safety concerns of an immediate threat of
serious physical injury were objectively reasonable.” 

 To
determine whether an officer’s concern for safety is objectively reasonable, we “examine the totality of the circumstances as they reasonably appeared to the officer[ ] at the
time of the patdown.” State v. Jackson, 

,

 (2003), rev den, 

 (2004); see also State
v. Amell, 

, 

 (2009) (“Whether
a gesture or movement will give rise to a reasonable suspicion that a citizen poses an immediate threat of serious
physical injury depends on the individual circumstances of
each case.”). “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.” Ramirez, 

.
“Rather, the concern must be reasonable more broadly, to a
standard [that] society views as objectively reasonable.” 

.
         In considering the totality of the circumstances, we
recognize that human interactions cannot be appropriately
reviewed by examining individual facts independent of their
context. Jackson, 

; see also Ramirez, 

 (explaining that the court does not consider
the points relied upon by the state in isolation because “[a]
totality of the circumstances approach does not lend itself to
divide and conquer tactics”). Importantly, human communication involves more than just words; body language, tone,
implications, and other subtle cues are also involved. As
such, “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 whole greater than the sum of
its parts.’ ” Ramirez, 

-12 (quoting State v.
Radtke, 

, 

 (2015)).
Cite as 

 (2024)                                            111

          The bodycam video of the encounter substantially
aids our assessment of this case because it provides a contemporaneous, holistic, and accurate depiction of the encounter.2 That video, along with the officer’s hearing testimony,
provide a comprehensive record to determine whether the
officer’s subjective suspicion was objectively reasonable.
         We understand the state to argue that the officer’s
training and experience, combined with the facts surrounding the interaction, supported the trial court’s determination that the officer’s subjective suspicion was objectively
reasonable. The state highlights the following facts in support of objective reasonableness: The officer arrived at the
scene of an accident and saw a “highly charged argument”;
the officer knew that defendant had left the scene and
returned; defendant displayed “elevated emotions throughout the short interaction”; the officer knew that elevated
emotions “could easily turn to violent behavior”; the officer
observed “a bulge that was potentially a weapon”; and the
officer observed that defendant was “fidgeting and moving
constantly, including twice touching the bulge within ninety
seconds.” As we explain below, we disagree.
          We first consider the situation in which the officer
encountered defendant. The officer was responding to a call
about a “reckless or intoxicated” driver and was aware before
arriving to the scene that defendant had been in a crash
and reportedly left the scene. Although reckless or intoxicated driving can pose serious danger to others, it does not
inherently pose a risk to the safety of the officers who are
called to investigate it. When the officer arrived, defendant
was involved in a “heated verbal exchange” with some other
people. Even though people were yelling at defendant and
called him offensive names, defendant did not react violently. Instead, he responded, “It was an accident, I’m sorry.”
He also willingly followed the officer when directed without
complaint, protest, or demonstrating any aggression.
        Defendant’s continued lack of aggression and general compliance throughout the pre-patdown interaction
weighs against objective reasonableness. The bodycam video
    2
      The state never challenged the accuracy of the bodycam video, and we have
no independent reason to question its accuracy.
112                                        State v. Whitlock

shows that during the encounter defendant’s shoulders were
slumped and he was folded in on himself. For most of the
encounter, defendant’s hands were folded across his chest.
He cried off and on throughout the encounter and wiped
tears from his eyes multiple times. Although defendant
made hand movements while talking that the trial court
found to be “drastic,” those hand movements, in the context
of this encounter, did not provide objective support that the
officer was in “immediate threat of serious physical injury.”
Bailey, 

; see also State v. Rodriguez-Perez,

, 

 (2014) (Nothing about the
defendant’s physical behavior “objectively indicate[d] that
he was an immediate threat.”). “[A] suspect’s furtive movements and nervousness, without more, do not support an
inference of likely violence.” State v. Nye, 

, 

 (2019).
         As to defendant’s emotional state, we accept the
trial court’s finding that defendant was “extremely emotionally labile.” But the record shows that defendant’s emotions
did not include anger, aggressiveness, or hostility. Instead,
defendant alternated between appearing distraught about
the circumstances surrounding the car accident and about
difficult circumstances surrounding his marital relationship. Even though defendant was in considerable personal
distress, he responded appropriately to the officer’s questions and never displayed any threatening behavior toward
the officer. While a defendant’s attitude and demeanor are
not dispositive, “we recognize that a defendant’s compliant
behavior may play a significant role in our determination of
whether officer-safety concerns justify a search.” Bailey, 

.
          Of course, demeanor is not considered in isolation.
Instead, we weigh demeanor “in the context of any other circumstances present or facts that an officer may have known
about the person at the time.” 

 Here, the officer cited in
support of his decision to pat down defendant that he knew
that defendant had an earlier dispute with his wife. The
officer testified that “it’s not uncommon” for people who are
experiencing breakups in domestic partnerships to be “very
distraught or violent with each other or with third-party
Cite as 

 (2024)                               113

bystanders.” The officer further explained that “[d]omestic
violence calls for service are some of the most dangerous
things for police officers to go to because we’re now involved
in something very personal … to people,” because people involved in breakups who have escalated emotions can
sometimes become violent. However, the officer never connected that general knowledge to the specific circumstances
in which the officer encountered defendant.
          Although defendant had been in a dispute with
his wife before the accident, the officer was not responding
to a domestic violence call related to that dispute. He was
responding to reports of a car accident in which defendant
was not accompanied by his wife. “To be objectively reasonable, ‘the officer’s safety concerns must be based on facts specific to the particular person searched, not on intuition or
a generalized fear that the person may pose a threat to the
officer’s safety.’ ” State v. Davis, 

, 

 (2016) (quoting Jackson, 

); see also
State v. Prouty, 

, 

 (2021)
(concluding that an officers’ suspicion was not objectively
reasonable due to a “lack of specific and articulable facts that
would reasonably create a fear for the safety of the officer or
others” (internal quotation marks and ellipses omitted)).
          We also consider the officer’s knowledge that defendant had left the scene and then returned. This fact carries
almost no weight in the analysis. The officer-safety doctrine
does not exist to prevent people from fleeing or frustrating
investigations. It serves to protect an officer when a citizen
“might pose an immediate threat of serious physical injury
to the officer or to others then present.” Bailey, 

 (internal quotation marks omitted). Even if defendant’s
behavior led to the officer fearing that defendant might flee
“or otherwise frustrate” investigation efforts, those concerns
do not equate with a threat of serious physical injury to the
officer, and as such cannot support a determination that “the
officer’s subjective safety concerns of an immediate threat of
serious physical injury were objectively reasonable.” 

 (internal quotation marks omitted).
          It is within this entire context that we consider the
officer’s observation of a bulge in defendant’s pocket, and
114                                                       State v. Whitlock

defendant “next to or touching” his pocket twice: first, when
he had both hands in his pockets as he complied with the
officer’s request to accompany him to a different area so they
could talk; and second, when he “patted” his pocket once
after swinging his arms out to the side in the middle of a
discussion with the officer about the events that led to defendant leaving and coming back.3 The officer testified that he
knew it was “pretty typical” for people to touch their pocket
when they want to make sure they have a specific thing. He
further explained, “so, when I kept seeing his hand go to that
pocket, it was an indicator to me that there’s something in
there—potentially a weapon that I need to make sure is safe
for me to be doing an investigation.” On cross-examination,
the officer described the “bulge” in more detail:
       “[Defense Counsel]: Okay. So, his hand was outside of
    his pocket, was it—he didn’t stuff his hands back in his
    pockets like he had when he was first talking to you?
       “A: Correct. So, he’s putting is [sic] hand on a bulge
    that I can see through his pocket.
        “[Defense Counsel]: Okay.
        “A: It’s like if you had a big set of car keys or for example
    a large knife or a gun—
        “[Defense Counsel]:        Right.
        “A: —so those are ladies—like ladies’ pockets are a
    lot higher than men’s so regular guy jeans is right where
    they’re going to rest, you’re going to put a knife or keys or
    anything that’s going to hang down there.
       “[Defense Counsel]: Or bananas or pieces of fruit or
    dog toys—I mean, we don’t know.

    3
      We recognize that on the bodycam video defendant can be heard to say that
he has money and a pocketknife in his pocket prior to the officer completing the
patdown. However, that fact does not change our disposition in this case for three
reasons. First, the state has never relied on that fact to demonstrate objective
reasonableness of the officer’s actions. Second, the officer’s actions on the video
and his testimony at the hearing demonstrate that he did not hear defendant
mention the pocketknife, and so that fact did not play a role in his decision to
conduct the patdown. Third, the fact that defendant had a pocketknife is not
dispositive, because “a defendant’s possession of a weapon … does not necessarily support a reasonable suspicion of an immediate threat to officer safety.”
Rodriguez-Perez, 

 (citing State v. Dyer, 

, 

 (1998)).
Cite as 

 (2024)                               115

      “A:   Sure, sure, that’s very true.
      “So, anything bulgy but yeah, and I’m looking for weapons—specifically looking for weapons when I’m doing a patdown search. Had I found a banana, we wouldn’t be here
   today.”
         That testimony lacks specific and articulable facts
that support an objectively reasonable belief that defendant might have possessed a weapon. The mere fact that
the bulge could “potentially” be a weapon is insufficient.
Davis, 

 (concluding that the bulges in the
defendant’s pockets did not contribute to an objectively reasonable officer-safety concern where the officer “did not …
describe the size or shape of the bulges” or otherwise “testify that there was a reason to believe that the bulges were
caused by a weapon”). Nor is it enough that the officer mentioned a knife or a gun as two of the objects that could have
caused the bulge: The list of items that the officer agreed
could have formed the bulge in defendant’s pocket (described
as “anything bulgy”) included such disparate items that it
gave no specific indication of any shape or dimension that
would indicate a weapon. Indeed, the officer admitted that
the bulge resembled a “big set of car keys,” and we have
previously held that officers must provide facts to support
that a bulge in a pocket was not a common object like car
keys. Nye, 

 (explaining that the officer “did
not testify to the shape or size of the bulges to suggest why
[the] defendant’s pockets were more likely to contain weapons than other common objects such as a wallet or keys”).
Moreover, apart from a description of the bulge, the officer
identified no other circumstances that supported his suspicion that the object causing the bulge was a weapon. Indeed,
instead of providing facts specific to this case, the officer
testified that he “almost always” pats people down for weapons during DUII investigations, undercutting a conclusion
that he made a case-specific determination regarding the
patdown in defendant’s case.
         Having reviewed the totality of the circumstances
of the encounter, we conclude, as we did in Rodriguez-Perez,

, that “[n]either defendant’s demeanor nor
his physical actions, either individually or collectively, would
116                                        State v. Whitlock

support a reasonable suspicion that defendant posed an
immediate threat of serious physical injury” to the officer.
The officer’s subjective suspicion that defendant posed an
immediate threat of serious physical injury was not objectively reasonable. The trial court therefore erred in denying
defendant’s motion to suppress.
        Reversed and remanded.