State v. Miglavs

FILED: May 20, 2004

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

DANIEL PAUL MIGLAVS,

Petitioner on Review.

(CC C000009CR, C000111CR; CA A111137 (Control), A111138;

SC S50279)

On review from the Court of Appeals.*

Argued and submitted March 3, 2004.

Garrett A. Richardson, Portland, argued the cause and filed

the brief for petitioner on review.

Jonathan H. Fussner, Assistant Attorney General, Salem,

argued the cause for respondent on review. Julie A. Smith,

Assistant Attorney General, filed the brief. With her on the

brief were Hardy Myers, Attorney General, and Mary H. Williams,

Solicitor General.

Before Carson, Chief Justice, and Gillette, Durham, Riggs,

De Muniz, and Balmer, Justices.**

DE MUNIZ, J.

The decision of the Court of Appeals and the judgment of the

circuit court are affirmed.

*Appeal from Washington County Circuit Court, Timothy P. Alexander, Judge. 186 Or App 420 , 63 P3d 1202 (2003).

**Kistler, J., did not participate in the consideration or

decision of this case.

DE MUNIZ, J.

The issue in this criminal case is whether a police

officer lawfully engaged in a precautionary patdown (1) of

defendant in accordance with the officer safety rule set out in

State v. Bates , 304 Or 519 , 747 P2d 991 (1987). Because there

were multiple charges against defendant arising out of separate

police patdowns and a subsequent search of defendant's residence,

we first set out the procedural history in some detail.

Defendant was charged with two counts of unlawful

possession of a firearm based on evidence uncovered during a

patdown (the patdown at issue here) conducted in August 1999.

Defendant moved to suppress the evidence that the police

discovered during that patdown. Following an evidentiary

hearing, the trial court denied defendant's motion to suppress

that evidence.

The same indictment also charged defendant with two

other counts of unlawful possession of a firearm as a result of

evidence uncovered in a patdown that the police conducted in

September 1999. Defendant moved to suppress the evidence

obtained as a result of that patdown, and the trial court granted

that motion.

Finally, the police executed a search warrant at

defendant's residence in December 1999 and seized evidence that

led to defendant being charged separately with seven other weapon

and drug-related crimes. Defendant moved to suppress that

evidence as well, and the trial court denied that motion.

The court consolidated all charges and tried them at

the same time. Defendant ultimately was convicted of two counts

of unlawful possession of a firearm seized as a result of the

August patdown and three counts of unlawful possession of a

firearm seized during the December search of defendant's

residence.

Defendant appealed, contending that the police had

relied on the evidence that they discovered during the August

patdown to obtain the search warrant that led to the discovery of

the evidence seized during the December search of defendant's

residence. A divided en banc Court of Appeals affirmed the trial

court's rulings denying defendant's motions to suppress evidence

discovered during the August patdown and the December search of

his residence. State v. Miglavs , 186 Or App 420 , 63 P3d 1202

(2003). We allowed defendant's petition for review. For the

reasons that follow, we conclude that the August patdown was

lawful and, therefore, affirm the trial court judgment and the

decision of the Court of Appeals.

We take the following facts from the Court of Appeals

majority opinion:

"Just after midnight in August 1999, Officer

Brown, who was on patrol alone, saw defendant and

another man standing outside a car, talking to a woman

seated in the car, in the parking lot of an apartment

complex in Beaverton. They were below an apartment

overhang, which caused the area to be fairly dark.

Because Brown suspected that all three individuals were

under 18 years of age and possibly violating curfew,

she approached the group. On approaching, she saw

alcohol in the car. She asked for identification so

that she could determine if any alcohol-related or

curfew violations may have occurred. Defendant and the

woman in the car gave Brown their identification, which

she kept while she ran a records check on them. The

other male said that he was 17 years old and gave his

name and date of birth in lieu of other identification.

The dispatcher reported that defendant was a possible

runaway, but defendant told the officer that he had

recently turned 18. He also told the officer that he

lived in the apartment complex, even though his

identification listed a different address. He was

unwilling to tell the officer in which apartment he

resided.

"Because she was on patrol alone, Brown called for

backup while she was checking the ages and identities

of the three individuals. Two backup officers arrived

within a couple of minutes. By the time they arrived,

Brown had determined that the driver of the car was 21

years old and therefore lawfully in possession of

alcohol. She also had determined that defendant was 18

years old and therefore not violating curfew. Brown

returned defendant's and the driver's identification to

them, making no overture to cite or hold them. They

were then free to go, but Brown did not expressly tell

them that. They remained while Brown continued her

investigation of the 17-year-old for a possible curfew

violation.

"At that point, Brown was concerned for her

personal safety and that of the backup officers.

Defendant and his male companion were wearing

distinctive clothing commonly associated with a gang

called the '18th Street' gang. Typical of that gang,

defendant had a shaved head and was wearing baggy tan

pants and a baggy black shirt with the term '18th

Street' printed on the back in large white letters.

Defendant's companion also was wearing baggy gang-style

clothes and had a three-dot tattoo under his eye that

is associated with gang membership. The baggy style of

the clothing concerned Brown because, in addition to

signaling gang affiliation, the clothing permitted easy

concealment of a weapon. Within the preceding year,

Brown had come into contact with a similarly attired

gang member in the parking lot of the same apartment

complex who, on a patdown search, was found to have a

weapon concealed in his waistband under his baggy

clothing. Also, based on her training and experience

more generally, Brown knew that members of the 18th

Street gang commonly carry weapons--in particular,

guns.

"One of the backup officers, Officer Cockreham,

shared Brown's safety concerns. His concerns arose

because of defendant's 18th Street gang-affiliated

clothing, as well as the way in which defendant's shirt

was draped over his waist. Cockreham had personally

removed weapons from several 18th Street gang members

in the same general area ( i.e. , along Allen Boulevard

between Hall and King); one such encounter occurred

'just previously to this incident' and the weapon he

found on the gang member was a gun. Brown directed

Cockreham to patdown defendant for weapons. On doing

so, Cockreham found a gun concealed in the waistband of

defendant's pants."

186 Or App at 422-24 (footnote omitted).

In affirming the trial court's rulings denying

defendant's motion to suppress the gun, the Court of Appeals

majority relied on this court's earlier decision in Bates .

There, this court held that

"Article I, section 9, of the Oregon Constitution, does

not forbid 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."

Id. at 524 . The Court of Appeals majority began its analysis by

characterizing the basis for the officers' particularized

suspicion of defendant:

"The officers' safety concerns here were not

stereotypical in the sense that they derived only from

a generalized and oversimplified view of how all

members of a broad group behave in all circumstances.

Rather, Brown and Cockreham had particular training in

and experience with members of a particular gang--the

18th Street gang--and its local activities. The

officers, based on training and experience relating to

that particular gang, knew that its local members

commonly carried concealed weapons. They knew,

moreover, that guns were often the weapon of choice for

members of the 18th Street gang."

Miglavs , 186 Or App at 427 (emphasis in original). The court

concluded that several factors contributed to the officers'

reasonable fear for their safety:

"On whole, then, we have this: defendant was a

likely member of not just an urban gang but of a

particular gang known to operate in the area--the 18th

Street gang--whose local members commonly carry guns;

he was wearing clothes that could have concealed a gun;

the officers had both longer-term and very recent

experience with members of the 18th Street gang in the

area who were armed with concealed weapons; it was

late; it was dark; and defendant chose to protract the

encounter with the officers. The totality of what the

officers knew and the circumstances with which they

were confronted went beyond a generalized understanding

of the practices of urban gangs and encompassed a

specific and particularized reality as to defendant and

the 18th Street gang, of which defendant was a likely

member."

Id. at 428 . The court thus affirmed defendant's convictions.

Judge Haselton agreed with the majority, but wrote

separately to clarify that the court's decision did "not

authorize 'officer safety' searches based solely on a citizen's

'suspicious' appearance or possible association with a

potentially dangerous group." Id. at 435 (Haselton, J.,

concurring). He further explained that "our holding does not

write a blank check for 'officer safety' patdowns resulting from

officer-initiated contacts with young men or women wearing 'gang

style' clothing." Id. (Haselton, J., concurring).

Judge Edmonds and Judge Armstrong dissented in separate

opinions. Judge Edmonds asserted that the constitutional right

to associate requires that the constitutional protections against

unreasonable searches and seizures apply equally to "those who

belong to gangs, wear baggy gang-related clothing, or identify

with groups known to be violent" as they do to others. Id.

(Edmonds, J., dissenting). He opined that defendant's decision

to remain at the scene after Brown concluded her investigation of

him was the only fact that could have contributed to her concern

that defendant might pose an immediate threat to her safety or

that of others. Id. at 436 (Edmonds, J., dissenting). But that

fact, Judge Edmonds asserted, was of little significance in light

of defendant's cooperative attitude and the fact that Brown did

not tell him that he was free to leave. Id. (Edmonds, J.,

dissenting). Judge Edmonds further posited that Brown's failure

to direct defendant to leave indicated that she did not perceive

defendant to be a greater threat at the end of the investigation

than she had at the beginning. Id. (Edmonds, J., dissenting).

According to Judge Edmonds, the majority's decision would permit

the police to patdown "any person dressed in gang attire and

present in a mall or other public place * * * even in the absence

of individualized suspicion[,]" contrary to Article I, section 9,

of the Oregon Constitution. (2) Id. at 436-37 (Edmonds, J.,

dissenting).

Judge Armstrong similarly believed that the officers'

knowledge that defendant was a member of the 18th Street gang,

and their prior experiences with that gang, were not "sufficient

to give the officers a reasonable basis to believe that defendant

was a member of the 18th Street gang who, because of that

membership, was reasonably likely to be carrying a gun." Id. at

439 (Armstrong, J., dissenting). He also could not discern a

difference between the officers' knowledge that defendant was a

member of a particular gang that was known to carry guns and

their knowledge that members of a particular type of gang carry

guns. Id. at 440 (Armstrong, J., dissenting). "In either case"

Judge Armstrong observed, "the state seeks to rely on a syllogism

that people of a particular group often carry weapons, that the

defendant appears to be a member of that group, and that it is

therefore reasonable to suspect that the defendant is carrying a

weapon." Id. (Armstrong, J., dissenting). He noted further, as

did Judge Edmonds, that Brown did not have a reason to fear for

her safety because defendant was cooperative and because Brown

had not waited for the backup officers to arrive to conduct her

investigation of the three individuals. Id. at 440-41

(Armstrong, J., dissenting). In Judge Armstrong's view,

defendant's failure to leave when Brown returned defendant's

identification was of no significance because Brown should have

understood that defendant merely wished to resume his encounter

with his friends. Id. at 441-42 (Armstrong, J., dissenting).

In this court, defendant relies on the dissenting

opinions by Judge Edmonds and Judge Armstrong and argues that the

Court of Appeals majority erred in its application of the Bates

rule because Brown did not have a particularized suspicion that

defendant was armed and might pose a threat to the officers'

safety. He observes that, when Brown had concluded her

investigation of defendant, she did not tell him that he was free

to leave, from which he argues that his failure to leave should

not have contributed to Brown's safety concerns. He notes

further that he was "cooperative and unthreatening" and, thus,

should not have made the officers feel that he presented an

immediate risk to their safety.

The state responds that this court needs to decide only

whether "the officers' belief that defendant might be armed and

dangerous [was] a reasonable one." In its view, "the officers

reasonably believed that this defendant might pose an immediate

threat primarily because he had expressly affiliated himself with

a particular gang, the local members of which operate in the

immediate vicinity and, in the officers' training and experience,

often are armed." Further, the state argues, "[t]hat suspicion

was sufficiently particularized because it was based on

characteristics shared by a narrow and well-defined category of

persons with whom the officers had specific experiences and about

whom the officers had received training." For the reasons that

follow, we agree with the state.

We begin with a review of Bates . In that case, a City

of Eugene police officer stopped the defendant for "'excessive

vehicle emissions'" at 4:40 a.m. Id. at 521 . The stop occurred

in a "'high crime'" area and the officer called for assistance.

Id. Two officers approached the defendant's vehicle and one

officer asked for the defendant's driver license. Id. The

officers noticed that there was a "television and a videocassette

recorder [VCR]" on the back seat of the defendant's vehicle. Id.

One officer also noticed "an object on the floorboard between

[the] defendant's feet." Id. The other officer also took note

of the object and "'asked [the defendant] if he would reach down

and very cautiously pull that item from between his feet," so

that the officer could see what it was. Id. The defendant

refused and instead "reached under the seat and remained in that

position" while the officer repeatedly asked him to pull the item

into plain view. Id. The officer then pulled his gun and

ordered the defendant to step out of the car. Id. The officer

then obtained the bag from under the seat, felt something hard

inside, opened it, and discovered "several rounds of live

ammunition, drugs, and drug paraphernalia." Id. at 522 .

The court began its analysis by noting the state's

reliance on the Supreme Court's analysis of officer safety

searches in Michigan v. Long , 463 US 1032 , 103 S Ct 3469 , 77 L Ed

2d 1201 (1983), and this court's own previous analysis in State

v. Riley , 240 Or 521 , 402 P2d 741 (1965), in which the court had

acknowledged that "police officers are entitled to take steps

reasonably necessary to their safety." Bates , 304 Or at 523 .

The court then held, as set out above, that Article I, section 9,

of the Oregon Constitution "does not forbid 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" that the suspect "might pose" a danger to

the officer or others. Id. at 524 . The court explained that

"it is not [this court's] function to uncharitably

second-guess an officer's judgment. A police officer

in the field frequently must make life-or-death

decisions in a matter of seconds. There may be little

or no time in which to weigh the magnitude of a

potential safety risk against the intrusiveness of

protective measures. An officer must be allowed

considerable latitude to take safety precautions in

such situations. Our inquiry therefore is limited to

whether the precautions taken were reasonable under the

circumstances as they reasonably appeared at the time

that the decision was made. "

Id. at 524-25 (emphasis added). See also State v. Amaya , __ Or

___, ___ P3d ___ (April 29, 2004) (same).

The Bates court concluded, however, that the officers

had exceeded the permissible bounds of the rule. Id. at 525-26 .

It reached that result by assessing the significance of each

factor that the officer identified as contributing to his

conclusion that the defendant posed an immediate threat. Id.

The officer testified that the vehicle's out-of-state license

plates, the time of day, the high crime area, the defendant's

appearance, the fact that there was a television and a VCR on the

back seat of the defendant's vehicle, and the fact that the

defendant did not comply with the officer's instruction to pull

into plain view the item that he could not see fully, all

contributed to his concern about the defendant's possible

dangerousness. Id. at 525 .

This court, however, concluded that none of the

identified factors, even when considered collectively, supported

a reasonable suspicion that the defendant posed an immediate

threat to the officers' safety. The court observed that the

suspicions of the officer who ordered the defendant out of the

car

"may have been an excellent guess–-the kind resulting

from a sixth sense that many officers develop over the

years. But, again, there is no objective quality to

them that entitles them to any weight, either

individually or collectively, in the constitutional

calculus. Neither the hour nor the 'high crime' nature

of the area tells us whether this defendant is likely

to be a criminal, unless there is some reason to think

that everyone driving in that particular area at that

time of night is up to no good[.]"

Id. at 526 (emphasis in original). As in Bates , our inquiry in

this case is limited to whether the precautionary patdown was

reasonable under the circumstances as they reasonably appeared at

that time.

Here, the officers testified that the following factors

contributed to their determination that defendant might pose an

immediate threat to their safety: (1) defendant "was wearing

bagg[y] tan pants and a black bagg[y] shirt that had '18th'

written on the back of the shirt in large white letters[,]" (3)

which the officers associated with the attire of 18th Street gang

members; (2) the young man with defendant also had a gang-related

tattoo consisting of three dots in the shape of a triangle that

Officer Brown knew meant "'[m]i vida loca'" or "'my crazy life'

in English" and his shirt also had the number 18 on it; (3) both

defendant and the man with him were wearing, "untucked[,]"

"extremely bagg[y clothing that] could easily conceal weapons";

(4) the officers knew that 18th Street gang members operated in

the vicinity of the encounter and that they carried guns; (5)

Officer Cockreham personally removed weapons from several 18th

Street gang members and had, just previously to this incident,

had removed a gun from an 18th Street gang member; and (6)

neither defendant nor the woman in the car chose to leave after

Brown returned their identification.

Before evaluating the factors described above, we first

address defendant's argument that his cooperative attitude and

lack of suspicious behavior was sufficient to dispel any concerns

that the officers had for their safety. Defendant is correct

that those circumstances must be considered in the overall

assessment of the reasonableness of the officers' decision to

engage in the patdown. However, defendant's attitude and

demeanor are just two circumstances that the officers and,

ultimately, this court must consider in determining whether the

totality of the circumstances justified the decision to engage in

a precautionary patdown. See State v. Ehly , 317 Or 66, 83 , 854

P2d 421 (1993) ("totality of the circumstances" are considered in

determining whether officer's suspicion was reasonable). As we

now explain, those countervailing circumstances, considered in

light of the totality of the circumstances, are not sufficient to

dispel the reasonableness of the officers' particularized

suspicion that defendant might have posed a danger to their

safety.

Under Bates , a limited precautionary patdown is

authorized under Article I, section 9, only when the initial

contact between the police and the individual is lawful. Here,

defendant concedes that Brown was engaged in a lawful contact

with defendant. Brown had approached the vehicle to investigate

possible curfew, and later, alcohol violations. She requested

defendant's identification and, upon concluding her

investigation, promptly returned defendant's identification to

him. In other words, as noted previously, the police contact was

not initiated solely (or at all) because defendant and his

companion were wearing gang attire.

Next, Bates requires an evaluation whether the factors

that the officers claim supported their belief that defendant

might pose an immediate threat to their safety are sufficiently

particularized to defendant as required under Article I, section

9. This court repeatedly has explained that a person's

appearance alone never can support a reasonable suspicion of

unlawful activity. See State v. Valdez , 277 Or 621, 628 , 561 P2d

1006 (1977) (explaining that "shined shoes, sharp clothes, neat

'Afro' haircuts and people who stand and stare at officers"

cannot say much about those people engaging in criminal

activity); Bates , 304 Or at 525 (explaining that fact that

defendant was "an 'Indian' with long hair and beard" wearing

black leather jacket could not support reasonable suspicion to

believe that he was dangerous). A police officer's suspicion

must be particularized to the individual based on the

individual's own conduct. State v. Stanley , 325 Or 239, 245-46 ,

935 P2d 1202 (1997); Bates , 304 Or at 525 ; Valdez , 277 Or at 628 .

Regardless of the officers' belief that gang members wear baggy

clothing, that type of clothing alone could not support a

reasonable suspicion that defendant posed a risk to the officers'

safety. That is, nothing about such attire alone could tell the

officers anything about defendant, except that he liked to wear

baggy clothing. Nevertheless, a particular style of attire may

be a circumstance that, when considered in the overall context or

totality of the circumstances of a police-citizen contact,

contributes to the reasonableness of an officer's safety

assessment.

Similarly, clothing that announces a gang affiliation

does not, by itself, give rise to the kind of individualized

suspicion of a safety threat required under Article I, section 9.

However, officers reasonably may draw inferences about human

behavior from their training and experience. See Stanley , 325 Or

at 246-46 (in officer's experience, people who commit robberies

often are armed); Ehly , 317 Or at 80-81 (in officer's experience,

drug users often are armed). In this instance, the officers knew

from training and recent personal experience that the gang

identified on defendant's shirt operated in the immediate

vicinity of the contact and that members of that gang carried

weapons. Furthermore, one of the officers recently had removed a

gun from one of the members of that gang. Under those

circumstances, the officers' safety concerns regarding defendant

were not based solely on generalized or stereotypical information

about gang behavior but, instead, were sufficiently

particularized, based on specific training about and recent

personal experience with a narrowly identified group, viz. ,

members of the local gang to which defendant and his male

companion proclaimed their allegiance and which operated in the

area where the officers encountered defendant.

Finally, in addition to defendant's self-proclaimed

gang membership and the officers' training and recent experience

with other gang members, there are other factors that contribute

to the reasonableness of the officers' safety concerns. First,

the contact with defendant and his two companions occurred at a

late hour in a darkened area in the general vicinity where one of

the officers recently had encountered armed members of the 18th

Street gang. Defendant was uncooperative during the initial

investigation when he refused to reveal the location of his

residence in the apartment complex. See Amaya , ___ Or at ___

(refusal to leave purse-like bag in vehicle when requested to do

so was one factor that heightened officer's safety concern).

Second, although defendant was free to move from the

immediate area after his identification was returned to him, he

chose to remain in the area near where the police were conducting

an ongoing investigation. When defendant remained in that close

proximity to the officers, the officers' safety concerns

reasonably were heightened because the officers needed to focus

their attention on defendant's companion and were not able to

watch defendant as closely as they could before that time. As

this court explained in Bates :

"A police officer in the field frequently must make

life-or-death decisions in a matter of seconds. There

may be little or no time in which to weigh the

magnitude of a potential safety risk against the

intrusiveness of protective measures. An officer must

be allowed considerable latitude to take safety

precautions in such situations."

Bates , 304 Or at 524 (emphasis added).

Here, the combination of factors that the officers

identified were sufficient to give rise to a reasonable and

individualized suspicion that defendant might have posed a safety

threat to them. That individualized suspicion justified the

limited precautionary patdown of defendant that occurred in this

case and did not violate defendant's protection against

unreasonable search and seizure under Article I, section 9, of

the Oregon Constitution.

The decision of the Court of Appeals and the judgment

of the circuit court are affirmed.

1. Our use of the term "patdown" is intended to mean "an

external patting of a person's outer clothing," as described in

ORS 131.605(3).

Return to previous location .

2. Judge Edmond's concern notwithstanding, this case is

not about whether Article I, section 9, would allow the police to

patdown a known gang member in a public place for the sole reason

of performing a patdown for weapons. Among other differences,

the patdown in this case occurred in the context of a lawful

police investigation and took place at night in the general area

where one of the officers had recently encountered an armed

member of the same gang.

Return to previous location .

3. Officer Cockreham testified that defendant's shirt

"actually said '18th Street' on it[.]"

Return to previous location .