State v. Dacquisto

“Defendant appeals from a conviction of felon in possession of a restricted weapon. Defendant assigned error to the trial court’s denial of his motion to suppress evidence obtained during an officer safety-search.”

The State contended that, considering it was a domestic dispute with an unknown aggressor, the defendant's agitation and nervousness, his statement about returning to prison, and the officer being alone at the scene, it was objectively reasonable for the officer to believe the defendant posed a safety risk. “Under Article I, section 9, warrantless searches ‘are presumed to be unreasonable and must be justified by a recognized exception to the warrant requirement.’ Whitlock, 334 Or App at 108…. officer-safety exception… permits an officer ‘to take reasonable steps to protect himself or oth­ers if, during the course of a lawful encounter with a citi­zen, the officer develops a reasonable suspicion… that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present.’ State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987).” The Court reasoned that the officer’s safety concerns were  not objectively reasonable because each concern was too general to support an objectively reasonable suspicion that the Defendant posed an immediate threat of physical injury. Additionally, the Court stated that Defendant’s cooperation evidenced by answering the officer’s questions weighs heavily against the State’s contention. Reversed.