State v. Musalf

Where a criminal defendant gives limited consent to a search, a police officer violates his right against unreasonable search and seizure under Article I, section 9, of the Oregon Constitution, if the police officer's search extends outside that limited consent. A police officer must make a particularized explanation as to the nature of a threat to his safety in order for a warrantless search to comport with the officer safety exception of Article I, section 9, of the Oregon Constitution.

Defendant appealed conviction of unlawful possession of a Schedule I controlled substance. He argued that the trial court erred by denying his motion to suppress evidence discovered in a warrantless search of his pocket. Specifically, he argued that the search of his pocket was outside the scope of the consent he granted to a patdown search. The Court found that Defendant consented to a limited patdown search because the Defendant only explicitly consented to a search of the outside of his clothing, and made an express distinction between the search to which he consented and a search to which he would have been subject while under arrest. The Court therefore held that a search of the inside of Defendant’s pocket was not consensual, and, moreover, there were no officer safety grounds with which to make the search legitimate, because the police officer lacked a particularized explanation as to why feeling a hard container inside Defendant’s pocket would make him fear for his safety. Therefore, the Court held Defendant's motion to suppress should have been granted. Reversed and remanded.