# State v. Miglavs

> Court of Appeals of Oregon · February 19, 2003 · 186 Or. App. 420

URL: https://www.frixlaw.com/law-library/cases/9796383

## Case

- **Full name:** STATE OF OREGON, Respondent, v. DANIEL PAUL MIGLAVS, Appellant
- **Court:** Court of Appeals of Oregon
- **Decided:** February 19, 2003
- **Citations:** 186 Or. App. 420; 63 P.3d 1202; 2003 Ore. App. LEXIS 256
- **Precedential status:** Published
- **Opinion:** Concurrence by Haselton
- **Judges:** Deits, Edmonds, Landau, Haselton, Armstrong, Linder, Wollheim, Kistler, Brewer
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9796383

## Opinion text

HASELTON, J.,
concurring.
This is a hard case. Officer safety cases are frequently difficult — but this one is especially so.
Why? In general, officer safety cases are hard because they require judges to resolve a tension between our profound appreciation of line-level police officers and our *434 sworn obligation to enforce constitutional limitations on police conduct. Judges, like other citizens, respect — and frequently admire — police officers and the service that they perform every day. Most of us recognize that we could never do that work — and we are deeply grateful to those who do, and do it, so often, so well. We also recognize, even more than most in our community, that police work is dangerous— inherently, yet randomly, dangerous. Our empathy is necessarily imperfect — we can never really know what it is like to make a traffic stop at 2:00 a.m. on a deserted highway — but it is there, nevertheless.
That empathy is at least implicit in Bates’s axiom that we should not “uncharitably second-guess” the instincts of line officers in officer safety situations. State v. Bates, 304 Or 519, 525 , 747 P2d 991 (1987). That empathy often silently underlies our decisions upholding officer safety searches. At some, perhaps subconscious, level, at least some of us ask, “If I had been the officer, what would I have done? Would I have been apprehensive — even scared? Would I have done the pat-down because the cost of being wrong is too high?” And if the answer is “yes,” the usual result — precedent permitting — is to sustain the search.
But, for all that we invoke Bates , we rarely note that in Bates itself the court held that the search was not justified by officer safety concerns. 304 Or at 525-28 . Empathy alone is not enough. There are constitutional limits. Id. at 527 . Accord State v. Rickard, 150 Or App 517, 528 , 947 P2d 215 , rev den, 326 Or 234 (1997) (Haselton, J., dissenting). And, thus, the tensions.
This case exacerbates those tensions. That is so because a misunderstanding or misapplication of our holding can produce great mischief. Just as many of our officer safety decisions attempt to acknowledge and accommodate the real dangers of everyday police work, some of our decisions also involve pretextual abuses of police authority based on purported “officer safety’ justifications. Those cases are infrequent, but they do occur — and it is the potential that overzealous officers may view our decision today as carte blanche that is most disturbing.
*435 So let’s be clear: We do not authorize “officer safety” searches based solely on a citizen’s “suspicious” appearance or possible association with a potentially dangerous group. In particular, 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. Rather, our holding, in a very close case, is based on the confluence of the following factors: (1) defendant’s explicit self-affiliation with an identifiable group; (2) at least one of the officers’ very recent encounter in the same area with members of the same group who were unlawfully carrying concealed weapons; (3) defendant’s baggy clothing, which potentially cloaked, but permitted ready access to, a concealed firearm; (4) the presence of defendant’s two companions; and (5) the late hour in a darkened area.
Given the totality of those circumstances, and for the reasons expressed in the majority opinion, I concur.
Deits, C. J., and Wollheim and Kistler, JJ., join in this concurrence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9796383. Public record. Not legal advice.