State v. Cocke

LANDAU, P. J.,

dissenting.

A police officer may conduct a warrantless “protective sweep” of an arrestee’s premises only on very narrow grounds. Under the federal constitution, when “specific and articulable facts” support an officer’s belief that the premises “harbor an individual posing a danger to the officer or others,” the officer may conduct

*195 “a quick and limited search of [the] premises, incident to an arrest * * * narrowly confined to a cursory visual inspection of those places in which a person might be hiding.”

Maryland v. Buie, 494 US 325, 327 , 110 S Ct 1093 , 108 L Ed 2d 276 (1990). Under the state constitution, an officer similarly may 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 officers in this case arrived at Quaschnick’s three-story home, where they found Quaschnick on the front porch with his probation officers and two or three other individuals. Quaschnick had been found in the possession of marijuana and a weapon, both in violation of the conditions of his probation. After placing Quaschnick under arrest, Officer Goldschmidt questioned him about whether others were in the house. Quaschnick did not know.

It was at that point that Goldschmidt decided that it was necessary to search the entire house, before he began what he estimated to be the 25- to 30-minute process of conducting an inventory of the evidence on site. Goldschmidt reasoned — and the majority holds, reasoned correctly — that (1) it was a big house, and others could still be inside; (2) drugs and a knife had been found in the house; (3) one month earlier, Goldschmidt had responded to a complaint about a laser sighting coming from the house; and (4) Goldschmidt had been told that, once again a month earlier, some residents of the house had been observed possessing firearms. Those facts, Goldschmidt later explained, led him to be concerned that other members of the house also could have been involved with the drugs and that those individuals might have a motivation to attack the police.

I do not understand how the foregoing facts — separately or in conjunction with one another — satisfy the prerequisites for a safety-justified warrantless search. At best, *196 they give rise to a series of speculations: that the house might have contained other people, that those people might have been the same people who had been seen with weapons a month earlier, that those people might have been involved in drugs, and, because of that involvement, they might have been motivated to interfere with the processing of the evidence at some point during the next half hour. A conjecture that there might be people who might have a motivation to interfere with an investigation some time in the next half hour hardly qualifies as a reasonable suspicion of an “immediate” threat of serious physical injury.

In that regard, the facts of this case recall those in State v. Reinhardt, 140 Or App 557 , 916 P2d 313 (1996), rev den 327 Or 521 (1998). In that case, the police arrived at a suspected drug house, where an informant had reported that, “at some unspecified time in the preceding two months,” a man had been observed with “biker-type” people, one of whom carried a weapon. Upon arriving at the house, the police saw the defendant, dressed in a black leather “motorcycle-type” jacket, sporting “extensive tattoos.” The police immediately seized the defendant and handcuffed him. They justified the seizure by their safety concerns, reasoning that the defendant might have been a member of an outlaw motorcycle gang, who might have been among or associated with those who had been seen at the house earlier, who might have been involved in drugs at the house, and therefore might have been motivated to interfere with the officers’ search of the premises. We rejected such reasoning:

“Intuition and generalized fear do not give rise to reasonable suspicion of an immediate threat to the safety of the officers or others present at the search. * * * Rather, there must be specific and articulable facts to justify the officer’s conclusion that a particular person presents an immediate threat of harm.”

Id. at 562-63 . The same reasoning should lead to the same result in this case.

I do not deny the inherent danger involved in effecting an arrest. Nor do I suggest that we uncharitably second-guess the difficult decisions that officers must make in the pressure of the moment. But there are limits to what we may *197 accept as a safety-based justification for departing from the general rule that searches must be supported by a warrant and probable cause. The majority’s decision does not comport with those limits. I therefore respectfully dissent.