No. 121 February 20, 2025 91
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
NATHAN LEE DACQUISTO,
Defendant-Appellant.
Lane County Circuit Court
22CR24229; A181094
Erin A. Fennerty, Judge.
Argued and submitted January 9, 2025.
Matthew Blythe, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
Elise Josephson, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Stacy M. Chaffin.
Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
JOYCE, J.
Reversed and remanded.
92 State v. Dacquisto
JOYCE, J.
Defendant appeals from a conviction of felon in possession of a restricted weapon, assigning error to the trial
court’s denial of his motion to suppress evidence obtained
during an officer-safety search. We conclude that the officer
conducting the search did not have an objectively reasonable suspicion that defendant posed an immediate threat of
serious physical injury. Therefore, the warrantless search
was not authorized by the officer-safety exception to the
warrant requirement of Article I, section 9, of the Oregon
Constitution. Accordingly, we reverse and remand.
We review the 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. Whitlock, 334 Or App 107, 108,
554 P3d 825 (2024). We
state the facts, which are taken from the bodycam footage
of the encounter and the officer’s testimony at the motion to
suppress hearing, consistently with that standard of review.
In the early afternoon, Trooper Maher responded
to a report of a domestic dispute in a residential area. After
Maher parked his car, he saw defendant and a woman, who
was later identified as defendant’s neighbor, walking towards
him. Maher asked defendant to “step over here with me” on
the side of the road and asked defendant which house he
lived in. Defendant complied and pointed to a house across
the street and down a long driveway. Defendant’s t-shirt
was torn on both sides at the collar, his face was puffy under
one eye, and he was smoking a cigarette.
Maher asked defendant what was going on and
defendant said he had had a toothache for days and he had
been asleep because he had been drinking. Maher interrupted him and asked if anyone in the house was injured.
Defendant said no, then pointed to the puffy area under his
eye and said he was the one who had asked for the police to
be called. Defendant said, unprompted, that he “didn’t fucking touch her, bro,” and “I’m going to prison, bro, I know I
am.” Around that time, Maher radioed a backup officer and
told them that that officer could slow their response to the
scene.
Cite as 338 Or App 91 (2025) 93
Defendant’s girlfriend, who was in the house with
their two children, came out of the house. Maher directed
her to go back inside, which she did. Maher asked defendant for his ID and defendant reached into the back pocket
of his pants, got his wallet out, and handed Maher his ID.
Maher asked defendant why he assumed he was going back
to prison, and defendant said because he had been to prison
before. Maher asked defendant if he “laid hands on” his girlfriend, and defendant said no. Maher asked defendant if his
girlfriend hit him, and he said, “I’m going to say no.” Maher
questioned defendant about his living situation and his
kids and girlfriend, and defendant answered each question.
Maher asked defendant how he got the injury on his face,
and defendant shrugged his shoulders, smiled, and said
something inaudible. Throughout the encounter, defendant
appeared somewhat nervous and distressed, pacing, rocking
side to side, and putting his hands on his head and face. At
no point did defendant raise his voice or make any threatening or furtive movements.
Maher told defendant that he was going to pat
him down and asked defendant if he had any weapons.
Defendant said he had a pair of brass knuckles in his back
pocket. Defendant complied with Maher’s directions during
the patdown, and Maher removed the brass knuckles from
defendant’s pocket. When a second officer arrived, Maher
told the officer that defendant had been “real cooperative.”
Defendant moved to suppress the brass knuckles, arguing that Maher’s search of defendant was unlawful because Maher did not have reasonable suspicion that
defendant posed an immediate threat of serious physical
injury. The state argued that under the totality of the circumstances—including that it was a domestic dispute with
an unknown aggressor, that defendant appeared agitated
and nervous, that defendant told Maher he was going back
to prison, and that Maher was the only officer on the scene—
Maher’s belief that defendant posed a safety risk was objectively reasonable.
At the suppression hearing, Maher testified that
“domestic violence situations can be one of the most dangerous ones … we respond to based on simply the tempers
94 State v. Dacquisto
sometimes are very elevated when we arrive.” He further
testified that situations where he does not know who the
aggressor is “are especially dangerous because … there’s
even more unknowns.” Maher testified that he had safety
concerns because of defendant’s “actions and demeanor,”
including that defendant was “smoking a cigarette right
away,” and defendant’s comment about not wanting to go
back to prison. The trial court denied the motion, noting
that it was a “physical-based domestic violence situation,”
that the aggressor was not known, and that defendant said
he had been in prison before.
On appeal, defendant challenges that ruling, reprising his argument that the search was unlawful because
Maher did not reasonably believe that defendant posed an
immediate threat. As explained below, we agree.
Under Article I, section 9, warrantless searches
“are presumed to be unreasonable and must be justified by a
recognized exception to the warrant requirement.” Whitlock,
334 Or App at 108 (internal quotation marks omitted). One
such exception is the officer-safety exception, which 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.” State v. Bates,
304 Or 519, 524,
747 P2d 991 (1987). The state has the burden to prove that,
under the totality of the circumstances, the officer’s subjective safety concerns were objectively reasonable. Whitlock,
334 Or App at 109. Whether an officer’s safety concerns
were objectively reasonable is 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. Jackson,
190 Or App 194, 198-99,
78 P3d 584 (2003),
rev den,
337 Or 182 (2004).
As it did below, in arguing that Maher’s safety
concerns were objectively reasonable, the state relies on
the following facts: it was a domestic violence dispute with
an unknown aggressor; defendant “had obviously been
involved in a physical altercation” and the other party to the
Cite as 338 Or App 91 (2025) 95
altercation “was just across the street”; defendant appeared
agitated and nervous; defendant said he did not want to
go back to prison; defendant told Maher he “didn’t fucking
touch” his girlfriend; and defendant “was smoking a fresh
cigarette.”1 We consider each of those factors while cognizant of our obligation to consider them in the totality of the
circumstances and not in isolation.
To begin, the state does not elaborate on why defendant’s statement that he did not touch his girlfriend would contribute to Maher’s safety concerns, and we do not give weight
to that factor. Nor do we give weight to the fact that defendant’s girlfriend was “just across the street.” As defendant
points out, neither Maher nor the trial court relied on that as
a factor contributing to Maher’s safety concerns, and there is
no evidence in the record that the location of defendant’s girlfriend contributed to the dangerousness of the situation.
As to defendant’s “fresh” cigarette, the state argues
that it supports an inference that the altercation defendant
was involved in had happened immediately before Maher
arrived, and because the altercation was close in time,
defendant was more likely to be dangerous. The state does
not point to any other evidence in the record that would
establish the timing of the altercation or show that the timing contributed to objectively reasonable officer-safety concerns and again, this was not a factor relied upon by the
trial court. Under those circumstances, defendant’s act of
smoking a “fresh” cigarette, without more, does not support
a reasonable inference that defendant posed an immediate
threat of serious physical injury.
With respect to Maher’s safety concerns based on
domestic disputes being especially dangerous, Maher did
not connect those concerns to anything specific to defendant
and thus his concerns amount to nothing more than a “generalized suspicion.” See State v. Redmond, 114 Or App 197,
201,
834 P2d 516 (1992) (cautioning that officer’s perceptions
about the dangerousness of gang members “is the kind of
1
At oral argument the state also contended that defendant’s statement about
drinking contributed to the officer’s safety concerns and that defendant’s evasive
answers about the injury to his face counteracted defendant’s cooperativeness.
Because those arguments were not relied on by the officer, the state, or the trial
court, we do not address them.
96 State v. Dacquisto
generalized suspicion that seldom will constitute a reasonable suspicion” but finding that the officer’s generalized
understanding “became a specific and particularized reality
when he saw that defendant was armed with a knife”).
As to defendant’s agitation and nervousness, we
have consistently held that those facts, without more, do not
give rise to reasonable officer-safety concerns. See State v.
Nye, 295 Or App 559, 564,
435 P3d 805 (2019) (“[A] suspect’s
furtive movements and nervousness, without more, do not
support an inference of likely violence.”); State v. Rodriguez-Perez,
262 Or App 206, 215,
325 P3d 39 (2014) (the fact that
the defendant became “ ‘very agitated’ ” at the mention of
weapons did not support a reasonable belief that defendant
posed an immediate danger because the defendant “did not
make any aggressive, hostile, or threatening movements,
nor did he make any threatening remarks”). Further, defendant’s cooperativeness with Maher’s questions and commands weighs heavily against a conclusion that Maher’s
subjective safety concerns were objectively reasonable. See
Whitlock,
334 Or App at 111 (“Defendant’s continued lack of
aggression and general compliance throughout the pre-patdown interaction weighs against objective reasonableness.”);
State v. Bailey,
307 Or App 782, 792,
479 P3d 304 (2020) (recognizing that “a defendant’s compliant behavior may play
a significant role in our determination of whether officer-safety concerns justify a search”).
Turning to defendant’s statement that he had been
in prison before and did not want to go back, that factor
is entitled little weight because Maher did not know why
defendant had been in prison or whether defendant had committed violent crimes. See State v. Zumbrum, 221 Or App
362, 369,
189 P3d 1235 (2008) (officer’s knowledge that the
defendant was on post-prison supervision did not contribute to reasonable officer-safety concerns because the officer
“did not know the basis for defendant’s prior conviction, nor
was he otherwise aware of whether defendant had a history
of violent behavior”); see also State v. Steffens,
250 Or App
742, 750,
282 P3d 888 (2012) (“An officer’s knowledge of the
defendant’s past conduct is relevant to the officer-safety
inquiry; however, where past conduct is not coupled with
Cite as
338 Or App 91 (2025) 97
any indication that the defendant is currently dangerous, it
is unlikely to be determinative.” (Emphasis in original.)).
In sum, although we are mindful that “it is not our
function to uncharitably second-guess” an officer’s “life- or-death decisions,” Bates, 304 Or at 524, we conclude that
the foregoing facts—considered in their totality—do not
support an objectively reasonable suspicion that defendant
posed an immediate threat of serious physical injury. See,
e.g., Whitlock,
334 Or App at 111-13 (officer’s suspicion was
not objectively reasonable where the defendant displayed
“elevated emotions”; the officer observed a “bulge that was
potentially a weapon”; the defendant was “fidgeting and
moving constantly, including twice touching the bulge”; and
the defendant had an earlier dispute with his wife and the
officer knew that people involved in domestic disputes “who
have escalated emotions can sometimes become violent”);
Zumbrum,
221 Or App at 365-66, 369 (officer’s suspicion was
not objectively reasonable where officer knew the defendant
was on post-prison supervision but did not know the basis
for the prior conviction; defendant appeared “abnormally
nervous”; location was an area known for illegal drug activity; and the defendant was compliant). Accordingly, the trial
court erred in denying defendant’s motion to suppress.
Reversed and remanded.
