State v. Ivey

No. 738               August 20, 2025                    649

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
               TRAMAINE JUSTIN IVEY,
                   Defendant-Appellant.
              Multnomah County Circuit Court
                   23CR04322; A182439

   Rima I. Ghandour, Judge.
   Argued and submitted June 2, 2025.
   Stacy M. Du Clos, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
   Timothy A. Sylwester, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Aoyagi, Presiding Judge, Egan, Judge, and Pagán,
Judge.
   EGAN, J.
   Reversed and remanded.
650                                                State v. Ivey

         EGAN, J.
          In this criminal case, defendant appeals from a
judgment of conviction for felon in possession of a firearm,
ORS 166.270(1) (Count 1), and unlawful possession of a firearm, ORS 166.250(1) (Count 2). He assigns error to (1) the
denial of his motion to suppress evidence discovered as a
result of an allegedly unlawful search of his car and seizure
of a firearm, and (2) the denial of his demurrer to the charge
of felon in possession of a firearm, in which he argued that
ORS 166.270 violated the Second Amendment as applied to
him, because his predicate felony conviction is for unlawful use of a vehicle (UUV). For the reasons explained below,
we hold that the trial court erred in denying defendant’s
motion to suppress but that it properly denied his demurrer.
Accordingly, we reverse and remand.
                            FACTS
          The facts are relevant only to the motion to suppress,
so we state the facts in accordance with the standard of
review for that motion. “In reviewing a denial of a motion to
suppress, we are bound by the trial court’s findings of historical fact that are supported by evidence in the record.” State v.
Leiby, 

, 

 (2018). We therefore
“state the facts consistently with the trial court’s explicit and
implicit factual findings [that] the record supports.” 

         Around 9:30 p.m., Multnomah County Sheriff’s
Deputy Mark Farmer was patrolling in a “high crime area.”
He observed defendant driving a “blacked out” car—that is,
a car without any lights on—which, in his experience, can
be indicative of a stolen vehicle or involvement in criminal
activity. Farmer followed defendant more closely so that he
could check the license plate. Defendant then abruptly pulled
over to the curb without being signaled to do so. Farmer ran
the license plate and discovered that the car’s registration
had expired. Farmer parked, activated his overhead lights,
and approached the vehicle on foot.
         Farmer testified that he had conducted hundreds
of stops, and, in his experience, “that initial contact with
the driver walking up to a vehicle especially at night and
under the circumstances I described” is “the most tense.”
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 (2025)                                           651

Farmer was “cautious” as he approached defendant’s car,
which appeared to be turned off. His past experience with
traffic stops included “frequent” instances of people taking
off by car or on foot to elude law enforcement, as well as “a
lot” of instances of people “attempting to assault [police officers]or fighting or either trying to ditch contraband or hide
contraband to include firearm and stuff.” It is “extremely
dangerous and unsafe” for a person to flee in their car, in
Farmer’s experience. Farmer has seen other people actually
struck or nearly stuck in such situations, and Farmer himself has “almost [been] hit by a car” in the past.
         On this specific instance, as he approached, he
could see defendant engage in “rapid, furtive movements [as
if he was] accessing something or concealing something.”
Then, as Farmer “walked up,” defendant “abruptly dipped
his head forward,” such that he was leaning over the steering wheel and ignition area, and Farmer “immediately was
concerned that [defendant] was about to activate the vehicle
and take off.” Farmer’s “immediate action” to try to prevent
that situation was to open the driver’s door. He did not give
any orders before doing so, because “it was a tense, rapidly
evolving event from what [he] was seeing inside the vehicle,”
and he knew that “it takes a split second for somebody to
turn on a vehicle and take off[.]” Defendant responded by
immediately sitting up and removing his hands from the
ignition area and stating that he was just trying to turn
off the car. (Farmer believed the car was already off, so he
found that statement to be “weird”). With defendant’s hands
away from the ignition—and the perceived safety risk thus
dissipated—Farmer began a “basic traffic investigation.”
         In the course of the stop, Farmer requested and
obtained consent from defendant to search the car.1 Farmer
seized a firearm that he found in the pocket of the driver’s
side door. At that point, defendant was not in handcuffs,
but Farmer advised him of his Miranda rights based on the
unlawful possession of a firearm. He later arrested defendant for felon in possession of a firearm and unlawful possession of a firearm.

    1
      Defendant argues that his consent was involuntary, but we need not reach
that issue given our holding on the officer-safety exception.
652                                                 State v. Ivey

         A grand jury indicted defendant for felon in possession of a firearm and unlawful possession of a firearm.
Defendant filed a motion to suppress evidence, asserting
that Deputy Farmer violated his rights under Article I, section 9, of the Oregon Constitution by committing an unlawful warrantless search when Farmer opened his car door.
Defendant also demurred to the felon in possession charge,
arguing that ORS 166.270(1) is unconstitutional as applied
to defendant, as his predicate conviction was for a nonviolent felony, and there is no historical tradition in disarming
nonviolent felons.
         The trial court denied defendant’s motion to suppress, concluding that the initial search was justified by the
officer-safety exception:
       “THE COURT: “[F]or the initial search, … the totality of the circumstances is reasonable suspicion and [ ]what
   Officer Farmer testified that both his experience, the movement, the area, the time of day, and the no lights, and the
   moving to the curb is enough for the proper opening the
   door and especially the—it looked like [defendant] might be
   trying to restart the car.”
The trial court denied defendant’s demurrer, relying on
State v. Parras, 

, 

 (2023), rev den,

 (2023), rev den, 

 (2024), as controlling.
         Defendant entered a conditional guilty plea to both
counts, reserving in writing his right to challenge the suppression and demurrer rulings on appeal.
                  MOTION TO SUPPRESS
          Defendant first assigns error to the denial of his
motion to suppress. Our review is for legal error. State v.
Miller, 

, 

 (2014) (“We review
the trial court’s denial of a motion to suppress for legal
error.”). Defendant contends that the state failed to prove
that Farmer’s act of opening the driver’s side door—which
led to the discovery of the firearm—was justified by the
officer-safety exception to the warrant requirement. The
state defends the court’s ruling.
       Under Article I, section 9, of the Oregon Constitution,
warrantless searches are per se unreasonable unless they
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 (2025)                             653

fall within one of the “specifically established and welldelineated exceptions” to the warrant requirement. State v.
Davis, 

, 

 (1983). The officer-safety
exception is one such recognized exception. That exception
allows 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 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 must prove three elements for the officer-safety exception to apply: (1) that the officer acted during
a lawful encounter; (2) that the officer developed an objectively reasonable suspicion that the individual posed an
immediate threat of serious physical injury; and (3) that
the protective measures taken were objectively reasonable.
State v. Rodriguez-Perez, 

, 

(2014). Whether an officer’s concern is objectively reasonable depends on the totality of the circumstances as they
appeared to the officer at the time. Bates, 

.
         As we have previously explained, “[t]he officer-safety doctrine requires a careful balance of ‘the individual’s
constitutional right[s]’ ” and “an officer’s right to take reasonable safety measures.’ ” State v. Bailey, 

, 

 (2020) (quoting State v. Davis, 

, 

 (2016)). We recognize that police
officers “in the field frequently must make life-or-death
decisions in a matter of seconds,” and “[a]n officer must be
allowed considerable latitude to take safety precautions in
such situations.” Bates, 

. To that end, “it is
not our function to uncharitably second-guess an officer’s
judgment.” Bailey, 

 (internal quotation
marks omitted). At the same time, we must bear in mind
that [t]he concept of reasonableness in this context is not
biased in favor of the concerns of the police.” 

 (Internal
quotation marks omitted). “And, to maintain a proper balance, we evaluate an officer’s expressed safety concerns
through an objective lens, requiring reasonable suspicion to
be based on facts specific to the particular person searched,
654                                                 State v. Ivey

not on intuition or a generalized fear that the person may
pose a threat to the officer’s safety.” 

 (Internal quotation
marks omitted).
         Defendant contends that the state failed to prove
that Farmer developed an objectively reasonable suspicion
that defendant posed an immediate threat of serious physical injury to him. The state disagrees, pointing to the fact
that the stop took place after dark, that defendant was driving without any lights (what Farmer described as a “blacked
out” car), that defendant pulled over to the curb “abruptly”
without being directed to do so, that defendant’s car registration was expired, that Farmer suspected the vehicle was stolen, that Farmer was alone, and that, as he approached the
car, Farmer saw defendant make “rapid, furtive movements
[as if he was] accessing something or concealing something
potentially” and then “abruptly dip[ ] his head forward” over
the ignition area in a way that caused Farmer concern that
defendant “was about to activate the vehicle and take off.”
          We agree with defendant that the state failed to
meet its burden of proof with respect to the objective reasonableness of Farmer’s subjective safety concerns. That the
stop occurred at night in a high-crime area and that the officer was alone are relevant circumstances but do not carry
much weight on their own, at least in these circumstances.
See Bates, 

 (“Neither the hour nor the ‘high
crime’ nature of the area tells us whether this defendant is
likely to be a criminal ….”) (Emphasis in original.); State v.
Smith, 

, 

, rev den, 

(2016) (“[W]here 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.”). The blacked-out car, expired registration, and other circumstances may have provoked a more
individualized suspicion that defendant was driving a stolen car or otherwise engaged in criminality, but a suspicion
of criminal activity is different from officer-safety concerns.
See Bates, 

 (observing that “the mere possibility that [the defendant] might have committed a crime”
was not sufficient to establish an objectively reasonable officer safety concern). And, even if it was somewhat unusual
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for defendant to pull to the curb as he did without waiting
to see if Farmer was going to stop him, the state has not
explained how defendant doing so raised the safety risk to
Farmer in the ensuing stop.
         We next consider defendant’s furtive movements
inside the car as Farmer approached on foot, which were
consistent with defendant trying to access or conceal something. We have previously held that, because furtive movements in a vehicle may have many explanations, something
more than furtive movements is necessary for the officer-safety exception to apply, such as disobedience of police
instructions. See State v. Nye, 

, 

 (2019) (describing prior case law as requiring furtive
movements to be coupled with other alarming conduct—
such as disobedience of a police instruction, reluctance to
comply, or conduct inconsistent with police inquiry—for
the officer-safety exception to apply); Davis, 

 (holding that an officer’s patdown search was unlawful, where the defendant made furtive movements inside his
vehicle as the officer approached, refused to explain what
was in his bulging pockets, and showed other signs of recent
drug use and preparation to run).
         Here, defendant’s abrupt head-dipping was the
“something more” from Farmer’s perspective. Farmer’s testimony makes clear that it was that movement that spurred
his decision to pull open the door, because he was concerned
that defendant might be “about to activate the vehicle and
take off.” The question is whether that was enough to trigger the officer-safety exception, even if everything up to that
point was not.
         On this record, we conclude that the state failed
to prove that it was. That is because, on this record, the
facts of the situation are simply too vague. Farmer generally described fleeing cars as “extremely dangerous and
unsafe” to officers and others, and he relayed that he had
personally seen others hit or nearly hit and had been nearly
hit himself. However, he did not describe the specific risk
that he perceived on this occasion, given the specific circumstances. There were no other vehicles in the area, according
to Farmer, and apparently no other people either, so the risk
656                                                State v. Ivey

at issue was to Farmer himself. Yet the record is silent as to
where exactly Farmer was relative to defendant’s car when
he saw defendant’s head dip over the ignition and how that
created an objectively reasonable safety risk that Farmer
would be struck if defendant took off at that point. Merely
wanting to prevent defendant from taking off would not give
rise to the officer-safety exception. See State v. Whitlock, 

, 

 (2024) (“Even if [the] defendant’s behavior led to the officer fearing that [the] defendant might flee ‘or otherwise frustrate’ investigation efforts,
those concerns do not equate with a threat of serious physical injury to the officer.” (Quoting Baily, 

.)).
         The state bore the burden of proof. Because the
state failed to prove that Farmer developed an objectively
reasonable suspicion that defendant posed an immediate
threat of serious physical injury, the trial court erred in
denying defendant’s motion to suppress based on the officer-safety exception to the warrant requirement.
                         DEMURRER
          Next, defendant argues that the trial court erred in
denying his constitutional demurrer. The grand jury charged
defendant with unlawful possession of a firearm and felon
in possession of a firearm (based on his prior conviction for
UUV). Defendant demurred, arguing that while his predicate conviction of UUV may be a felony under Oregon law,
it is not akin to a felony under common law, as there is no
historical tradition of disarming “misdemeanants.” Relying
on State v. Parras, in which we upheld the application of
ORS 166.270(1) against a defendant with prior felony drug
convictions, the trial court denied the demurrer. Defendant
now appeals the denial of his demurrer, arguing that Parras
is either distinguishable or was wrongly decided.
        Whether a statute violates the Second Amendment
is a question of law. State v. Shelnutt, 

, 

, rev den, 

 (2021). This court reviews the
denial of a demurrer for errors of law, considering only the
information appearing on the face of the charging instrument. State v. Woodall, 

, 

(2013).
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 (2025)                                   657

         In District of Columbia v. Heller, 

, 

, 

 (2008), the United States Supreme
Court held that the Second Amendment protects an individual’s right to possess firearms for self-defense. After Heller,
courts across the country employed a two-part analysis to
determine whether firearm prohibitions survived a Second
Amendment challenge. That framework was later modified
in New York State Rifle & Pistol Ass’n v. Bruen, 

, 

, 

 (2022). After Bruen, a restriction
on firearm possession is constitutional only if it is consistent with the nation’s historical tradition of firearm regulation. In Parras, we upheld the application of ORS 166.270(1),
Oregon’s felon-in-possession statute, against a defendant
with prior felony drug convictions, concluding that the statute did not violate the Second Amendment as construed in
Bruen. Parras, 

. We explained:
   “The weight of historical evidence shows that it was understood that individuals could be divested of Second Amendment
   protections if they broke the social contract of being a virtuous citizen by committing a serious crime. While it may be
   true that prohibitions on the possession of firearms by people
   convicted of felonies did not exist at the time of the framing
   of the Second Amendment, the concept that those who committed serious crimes were historically not entitled to Second
   Amendment protections did exist at the time of the framing.
   We thus conclude that ORS 166.270 is consistent with ‘this
   Nation’s historical tradition of firearm regulation.’ ”

 (quoting Bruen, 

). The defendant in Parras
argued that his prior convictions—manufacture and possession of methamphetamine—were nonviolent, and thus
insufficient to permanently disarm him under the Second
Amendment. 

. We disagreed, explaining
that there was “little historical evidence that any differentiation was made between those who committed serious
violent versus nonviolent offenses with respect to Second
Amendment protections.” 

.
        Here, defendant contends that Parras is distinguishable because UUV is not as serious or violent as the
offenses in Parras. Defendant argues that, in an as-applied
challenge, his UUV conviction does not provide a sufficient basis for denying him his rights under the Second
658                                              State v. Ivey

Amendment. The state argues that defendant’s argument
has no merit because, in Parras, this court necessarily
assumed that whether a crime is sufficiently “serious” is an
issue to be decided by the legislature, which classifies criminal offenses. We agree with the state that Parras is both
controlling and correct. Defendant also argues that there
is no historical evidence supporting an American tradition
of permanently disarming individuals for UUV or similar
“joyriding” statutes. The state contends that the offense of
UUV certainly can be committed in a manner that would
have constituted felonious larceny under the common law.
We agree with the state’s reasoning and conclude that while
there may be no historical evidence of disarming individuals with UUV convictions, that is only because automobiles
did not exist at the time of the Second Amendment’s ratification. In United States v. Rahimi, 

, 

,

 (2024), the United States Supreme Court
explained that “when a challenged regulation does not precisely match its historical precursors, it still may be analogous enough to pass … but it need not be a ‘dead ringer’ or
a ‘historical twin.’ ” (Internal quotation marks omitted.). We
conclude that UUV is closely analogous to well-established
historical offenses including larceny, horse rustling, or trespass to chattels. Defendant even acknowledges that those
crimes could have been prosecuted at common law as felonies. Accordingly, we affirm the trial court’s denial of defendant’s constitutional demurrer to Count 1.
        Reversed and remanded.