STATE v. MARCELL (2020)

Defendant appeals a judgment of conviction for unlawful possession of a firearm, ORS 166.250. The firearm was found during a stop of a car in which defendant was in the driver's seat. The car was parked too far from the curb such that the back of the car extended into the southbound lane of traffic, and defendant was initially stopped for that reason. The stop quickly evolved from a traffic stop into an investigatory stop related to the unlawful possession of marijuana, and, when the officer asked about weapons for safety reasons, defendant gave up the gun.

The only issue raised on appeal is the denial of defendant's motion to suppress the evidence of the gun: specifically, whether the officer's inquiry about weapons comported with Article I, section 9, of the Oregon Constitution under the standard set forth in State v. Jimenez, 357 Or. 417, 353 P.3d 1227 (2015), and elaborated on in State v. Miller, 363 Or. 374, 422 P.3d 240, adh'd to as modified on recons., 363 Or. 742, 428 P.3d 899 (2018). That standard “is less demanding than the particularized reasonable suspicion that Article I, section 9, requires before the officer may search the citizen for weapons.” Miller, 363 Or. at 376, 422 P.3d 240 (emphasis in original). It allows an officer to make a weapons inquiry during a traffic or investigatory stop if the inquiry “is reasonably related to and reasonably necessary to effectuate” the officer's investigation. Jimenez, 357 Or. at 429, 353 P.3d 1227; Miller, 363 Or. at 380, 422 P.3d 240.

In the context of a motion to suppress, to demonstrate that a weapons inquiry met that standard, “the state must ‘present evidence that (1) the officer perceived a circumstance-specific danger and decided that an inquiry about weapons was necessary to address that danger; and (2) the officer's perception and decision were objectively reasonable.’ ” Miller, 363 Or. at 380-81, 422 P.3d 240 (quoting Jimenez, 357 Or. at 430, 353 P.3d 1227). In the words of our Supreme Court, that test “is not a demanding one.” State v. Pichardo, 360 Or. 754, 762, 388 P.3d 320 (2017).

Here, defendant acknowledges that the state's evidence satisfies the first part of the Jimenez/Miller test. He contends, however, that the record is inadequate to permit the conclusion that the officer's perception of danger and question about weapons were objectively reasonable. Accepting the trial court's supported factual findings and otherwise reviewing the record in the light most favorable to the trial court's ruling, State v. Backstrand, 354 Or. 392, 405 n. 12, 313 P.3d 1084 (2013), we conclude that the record is sufficient to support the trial court's ultimate conclusion that the officer's concerns and ensuing weapons inquiry were objectively reasonable under the “not * * * demanding” Jimenez/Miller standard. Pichardo, 360 Or. at 762, 388 P.3d 320. The trial court properly denied defendant's motion to suppress.

Affirmed.

PER CURIAM