STATE v. MARSTON (2002)

Defendant appeals from her judgment of convictions for delivery and possession of a controlled substance.   ORS 475.992.   She assigns error to the trial court's denial of her motion to suppress evidence obtained pursuant to a warrantless search of defendant following a traffic stop of the vehicle in which defendant was a passenger.   At the suppression hearing, the police officer testified that, based on defendant's behavior, he did not have any concern regarding his safety but nonetheless conducted a pat-down for weapons.   During that search the officer discovered the controlled substance.

On appeal defendant contends that the trial court erred in ruling that the officer was justified in searching defendant for officer-safety reasons and that the officer had subjective probable cause to believe that defendant committed a crime.   The state concedes that the pat down search was not justified for officer safety reasons because the officer did not know specific facts creating a reasonable suspicion of an immediate threat of serious physical injury.  State v. Walker, 181 Or.App. 548, 553, 47 P.3d 65 (2002).   The state also concedes that the officer's testimony did not support a finding that the officer subjectively believed that defendant committed a crime.   State v. Getzelman, 178 Or.App. 591, 595-97, 39 P.3d 195, rev. den., 334 Or. 289, 49 P.3d 798 (2002).

We accept the state's concessions.   The trial court erred in denying the motion to suppress;  we reverse the judgment and remand this case to the trial court for further proceedings.

Reversed and remanded for further proceedings.

 PER CURIAM.