State v. Amsbary

Where the State failed to prove an officer subjectively believed the defendant’s small black pouch was or contained a dangerous or deadly weapon, and that belief was objectively reasonable, the seizure of the evidence did not meet the officer safety exception to the warrant requirement of Article I, section 9, of the Oregon Constitution and must be suppressed absent rebuttal of the presumption that the evidence was tainted by the violation.

Defendant conditionally pleaded guilty to one count of unlawful possession of methamphetamine, a violation of ORS 475.894, reserving the right to appeal the trial court’s denial of his motion to suppress the evidence that he possessed the meth. Defendant argued the officer’s warrantless seizure of a pouch containing the meth did not fall under the officer safety exception to the warrant requirement of Article I, section 9, of the Oregon Constitution. To qualify for the officer safety exception, the officer must subjectively have believed the pouch was or contained a dangerous or deadly weapon and that belief must have been objectively reasonable. The Court found that the officer may have subjectively suspected the pouch was a weapon based on previous contacts with Defendant until the point where Defendant showed the officer the pouch, at which time the officer testified he asked Defendant whether the pouch contained drugs, and not whether it was or contained a weapon. The Court held the State failed to meet its burden to show the seizure met the officer safety exception, and the presumption that the evidence was tainted and must be suppressed was not rebutted. Reversed and remanded.