S057378, Opinion — State v. Guggenmos

243
Argued and submitted February 19, 2010, at De La Salle North Catholic High
School, Portland, decision of Court of Appeals reversed; judgment of circuit court
reversed, and case remanded to circuit court for further proceedings May 5, 2011
STATE OF OREGON,
Respondent on Review,
u.
BOBBY LEE GUGGENMOS,
Petitioner on Review.
(TC 0500398CR; CA A133266; SC S057378)
253P3d1042
Police discovered drug-related evidence in plain view in defendant's bedroom
during a warrantless "protective sweep" of the residence in which defendant lived.
Defendant subsequently gave consent to search his bedroom and made incriminat-
ing statements. The trial court denied defendant's motion to suppress, concluding
that the officer's warrantless search of the bedroom was justified by officer safety
concerns and that the officer had obtained valid consent to search, and convicted
defendant of possession of a controlled substance. The Court of Appeals affirmed in
a written opinion and defendant sought review, arguing that the trial court had
erred in denying his motion to suppress. Held: The trial court erred in denying
defendant's motion to suppress because (1) The officer's search of defendant's bed-
room was not justified by the officer safety exception to the warrant requirement
contained in Article I, section 9, of the Oregon Constitution; and (2) defendant's
subsequent consent to search was not voluntary.
The decision of the Court of Appeals is reversed. The judgment of the circuit
court is reversed, and the case is remanded to the circuit court for further
proceedings.
On review from a decision of the Court of Appeals.*
Robin A 	Jones, Senior Deputy Public Defender, Salem,
argued the cause and filed the brief for petitioner on review.
With her on the brief was Peter Gartlan, Chief Defender,
Office of Public Defense Services.
Douglas F. 	Zier, Assistant Attorney General, 	Salem,
argued the cause and filed the brief for respondent on review.
With him on the brief were John R. Kroger, Attorney
General, and Jerome Lidz, Solicitor General.
Before De Muniz, Chief Justice, and Durham, Balmer,
Kistler, Walters, and Linder, Justices.**
* Appeal from Klamath County Circuit Court, Richard B. Rambo, Judge. 225
Or App 641, 202 P3d 892 (2009).
** Gillette, J., retired December 31, 2010, and did not participate in the deci-
sion of this case. Landau, J., did not participate in the consideration or decision of
this case.

244 	State v. Guggenmos
DURHAM,J.
The decision of the Court of Appeals is reversed. The judg-
ment of the 	circuit court is reversed, 	and the 	case is
remanded to the circuit court for further proceedings.
Kistler, J., dissented and filed 	an opinion, in which
Linder, J.,joined.

Cite as 350 Or 243 (2011) 	245
DURHAM,J.
Defendant seeks review of a decision of the Court of
Appeals that affirmed his conviction for possession of a con-
trolled substance. Defendant contends that the trial court
erred in denying his motion to suppress drug-related evi-
dence seized by a police officer from defendant's bedroom fol-
lowing what the state describes as a "protective sweep" of the
home in which defendant resided. For the reasons set out
below, we conclude that the trial court should have granted
defendant's motion to suppress. Accordingly, we reverse the deci-
sion of the Court of Appeals and the judgment of the trial court.
We take the following facts from the trial court's
findings and other record evidence, which we view in the
light most favorable to the state. The search at issue occurred
on February 9, 2005, when Detective Mogle of the Oregon
State Police, acting without a warrant, searched defendant's
bedroom in a house located on Third Street in Klamath Falls.
According to Mogle's testimony at the hearing on the motion
to suppress evidence, an unnamed informant, at some time in
the past, had pointed out the house on Third Street to Mogle
as a place where people were selling drugs. The informant
also had stated that persons in the house hid "wanted people"
there. In the past, Mogle had used an informant in an
attempt to buy drugs at the house, but the record does not
indicate whether that effort was successful.
Mogle also believed that the house on Third Street
was "associated" with another house on Fifth Street in
Klamath Falls. Either Mogle or an informant had seen two
men, Monteith and Fonseca, at the Fifth Street house at
some unidentified time in the past. According to Mogle,
Fonseca "had warrants," i.e., he was the subject of one or
more outstanding arrest warrants, but Mogle did not explain
the basis of the warrants for Fonseca or why the police had
not executed them.
Another 	police 	officer, 	Corporal 	Deese 	of 	the
Klamath Falls Police Department, testified at the suppres-
sion hearing that he had heard from an unidentified source
that the Third Street house was a "drug house." Deese also
testified that he had had "previous dealings" with one of the

246 	State v. Guggenmos
residents of the Third Street house, Tidwell. At one point in
his testimony, Deese described Tidwell as a felon who was
involved with guns, but later acknowledged that he had con-
fused Tidwell with another person with a similar name, and
stated that Tidwell was not a felon and had no history of
involvement with guns. Deese testified that two of Tidwell's
associates, Monteith and Coatsworth, were involved in guns
and that he had seen their cars parked near Tidwell's car at
an unidentified place and time in the past.
Deese also had heard from an unnamed informant
that there might be drugs in a certain brown pickup truck.
On February 9, 2005, Deese saw the brown pickup truck
parked in an alley behind the Third Street house and notified
Mogle. Mogle asked Deese to accompany Mogle and another
police officer, Morrison, to the Third Street house. Mogle
planned to conduct a "knock and talk" contact with any resi-
dents to learn, if possible, whether any people with outstand-
ing warrants were present. Mogle had no specific wanted per-
son in mind when he formulated that plan.
The police officers drove to the Third Street house.
Mogle and Morrison were dressed in plainclothes, not uni-
forms, and went to the front door; Deese, in uniform, stood
outside the back door. Mogle knocked on the front door. After
he identified himself and Morrison and displayed a police
badge, he was invited inside to the living room. At that point,
Tidwell, an adult woman, and a child were present in the liv-
ing room with Mogle and Morrison. Mogle told Tidwell that
he had information that wanted persons might be present
and asked to look for them in the house. Tidwell denied that
wanted persons were inside the house, and said that only his
girlfriend, her child, and someone named "Sam" were there.
Tidwell agreed to allow Mogle to search the residence for
wanted persons. Mogle asked Tidwell to accompany him in
walking through the house, and Tidwell agreed. Tidwell
exhibited a cooperative attitude and a conversational tone of
voice.
At that point, an event occurred that is central to the
state's argument, discussed below, that Mogle subsequently
searched defendant's bedroom on the basis of a reasonable
suspicion that he or others present faced an immediate

Cite as 350 Or 243 	247
threat of serious physical injury. As Tidwell and Mogle began
walking past a stairway that descended from the kitchen to a
back door, Mogle observed two men running or moving
quickly down the stairs. Mogle yelled at them to stop.1 The
two men paused briefly and looked at Mogle, but continued
down the stairs and out the back door. They encountered
Deese beyond the door and stopped. Morrison remained with
the woman and child in the living room, and Mogle and
Tidwell joined Deese and the others downstairs. Mogle asked
the men why they were running but received no answer.
Mogle had the following information about the peo-
ple that he had encountered in the house. Mogle had heard
Tidwell's name in the past but he could not recall any official
contact with him and had no information that he was a vio-
lent person. Mogle recognized one of the two men stopped
outside the back door-defendant-as someone with whom
he had had official contact, but he could not recall the nature
of the contact or whether it involved guns or violence. Mogle
had not had any previous contacts with the other man, who
was later identified as "Sam." Mogle told Deese to "run"
defendant and Sam, that is, to obtain their identification and
determine whether any outstanding warrants existed for
them.
Mogle went back inside to "clear" the rooms upstairs
in the house to determine whether any other persons might
be present. The parties agree that Mogle's action was a
"search" within the meaning of Article I, section 9, of the
Oregon Constitution. Mogle did not request consent from
anyone to search the rooms upstairs or, in particular, the
bedroom occupied by defendant, and the state does not con-
tend that Mogle's search of that bedroom was a consent
search. Mogle testified that he conducted the search in the
interest of officer safety. He pointed out that Tidwell had
indicated earlier that only one other person, "Sam," was pres-
ent in the house, but that, contrary to Tidwell's statement,
two men had emerged on the staircase. Mogle was concerned
1 The evidence is in conflict about whether Mogle used the term "police" and
commanded the two men to stop or, instead (as Deese testified), simply asked
where they were going. The trial court apparently chose to take a middle road, find-
ing only th at "Mogle yelled at them to stop."

248 	State v. Guggenmos
that Tidwell had not been honest about the number of per-
sons present in the house and that Morrison remained in the
living room without additional police support.
During the search of the upstairs rooms, Mogle
looked into the bedroom that defendant occupied and saw in
plain view on a table a mirror with white powder residue and
straws. Mogle recognized the items as drug paraphernalia
and returned downstairs.
Deese advised Mogle that an outstanding warrant
existed for defendant but that no warrants existed for the
other man, Sam. Mogle asked Tidwell for consent to search
the house for drugs. Tidwell gave consent for all areas of the
house except the bedroom that Mogle had just searched,
explaining 	that 	that 	was 	defendant's 	bedroom. 	Mogle
advised defendant of his Miranda rights, disclosed what he
had seen on the bedroom table, and requested consent to
search the bedroom. Defendant gave his consent to a second
search and made some incriminating statements. Mogle's
subsequent search of the bedroom brought to light a plastic
bag that had contained methamphetamine. Mogle seized the
mirror, straw, and plastic bag.
The state charged defendant with possession of a
controlled substance. Before trial, defendant moved to sup-
press the physical evidence seized from his bedroom and his
incriminating statements to Mogle, relying on the search and
seizure provisions of the state and federal constitutions. 2
After a hearing, the trial court denied the motion, concluding
that Mogle's observation of two men running down the stairs
gave rise to a valid officer safety concern and justified a
2 Article I, section 9, of the Oregon Constitution provides:
"No law shall violate the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable search, or seizure; and no
warrant shall issue but upon probable cause, supported by oath, or affirmation,
and particularly describing the place to be searched, and the person or thing to
be seized."
The Fourth Amendment to the United States Constitution provides:
"The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or affir-
mation, and particularly describing the place to be searched, and the persons
or things to be seized."

Cite as 350 Or 243 	249
search of the house to determine who else might be present.
Further, the court determined that Mogle subsequently
obtained valid consent from defendant to search his bedroom
for drugs. The trial court admitted the disputed evidence at
trial, and defendant was convicted.
Defendant appealed. The Court of Appeals con-
cluded that Mogle had "stopped" defendant by ordering him
to stop as he descended the stairs. However, the court held
that the stop was justified by the totality of the circum-
stances, including the flight by defendant and "Sam," the
informants' reports about harboring wanted persons and
past drug activity in the house, and Tidwell's act of misin-
forming Mogle about the presence of a fourth adult in the
house. State v. Guggenmos, 225 Or App 641, 645, 202 P3d 892
(2009). The court also concluded that the circumstances jus-
tified Mogle's first entry into defendant's bedroom as part of a
protective sweep of the house and that, because the protec-
tive sweep was valid, Mogle did not "exploit" an illegality in
subsequently obtaining defendant's consent to a 	second
search of his bedroom. Id. at 648-49.
On 	review, 	defendant 	contends 	that 	the 	police
unlawfully seized him by ordering him to stop as he left the
house. Defendant makes the point that the police had no
reasonable suspicion, supported by specific and articulable
facts, that he had committed or was committing any crime, or
was a threat to anyone. Defendant argues that the reports of
unnamed informants recited by Mogle and Deese were not
shown to be credible or reliable through any form of corrobo-
ration and, in any event, those reports never mentioned
defendant at all.
Defendant argues that, because the police stopped
him without adequate cause, the subsequent search of his
bedroom constituted an exploitation of the illegal stop. Thus,
according to defendant, the trial court should have sup-
pressed the evidence that the search of his bedroom exposed,
including his admissions, because those items of evidence are
the fruit of the illegal stop.
The state responds that the court need not deter-
mine the legality of the stop of defendant, because the basis of
the search of defendant's bedroom was officer safety, not the

250 	State v. Guggenmos
stop. According to the state, because Mogle developed a con-
cern for officer safety, a search of defendant's bedroom was
justified whether or not the initial stop of defendant was
valid. Defendant responds that the evidence in the record
does not satisfy the applicable standards that this court has
imposed for a valid search of the private areas in a residence
to protect the safety of police officers or others.
We begin by resolving state law issues before federal
law issues. See State v. Juarez-Godinez, 326 Or 1, 5, 942 P2d
772 (1997) (stating principle). The police seized the evidence
in dispute here as the result of a warrantless search of a bed-
room and, consequently, "the burden of proving by a prepon-
derance of the evidence the validity of the search is on the
prosecution." ORS 133.693(4); see State v. Tucker, 330 Or 85,
89, 997P2d182 (2000) (applying statutory rule).
The state is correct in contending that we can resolve
the validity of the search here without analyzing the separate
question of whether Mogle improperly stopped defendant. If
Mogle's search of defendant's bedroom violated defendant's
rights under Article I, section 9, then the drug evidence that
Mogle observed would be subject to suppression. In that
event, this court would have no reason to examine whether
Mogle had authority to stop defendant, whether the stop
caused the subsequent bedroom search, and whether the
search constituted an exploitation of the stop. Therefore, we
focus our discussion on the validity ofMogle's search of defen-
dant's bedroom.
We have described a person's living quarters as "the
quintessential domain protected by the constitutional guar-
antee against unreasonable searches." State v. Louis, 296 Or
57, 60, 672 P2d 708 (1983). Under Article I, section 9, of the
Oregon Constitution, a warrantless search of one's private
living quarters is per se unreasonable and unlawful unless
the search fits within a recognized exception to the warrant
requirement. State v. Paulson, 313 Or 346, 351, 833P2d1278
(1992).
Relying on a series of cases decided by this court, the
state argues that the search here-a "protective sweep" of the
house-was conducted to protect officer safety. Those cases

Cite as 350 Or 243
permit a police officer, during a lawful police-citizen encoun-
ter, to take reasonable precautions to protect the safety of the
officer or others present if the officer develops a reasonable
suspicion, based on specific and articulable facts, that there
exists an immediate threat of serious physical injury to the
officer or others present. E.g., State v. Bates, 304 Or 519, 524-
25, 747 P2d 991 (1987) (explaining that the requirement of
an immediate threat of serious physical injury must be
"based on specific and articulable facts" viewed in light of
"the circumstances as they reasonably appeared at the time
that the decision was made"). In State v. Cocke, 334 Or 1, 9,
45 P3d 109 (2002), this court summarized the teaching of
those cases:
"[T]his court has recognized the reasonableness, for pur-
poses of the Oregon Constitution, of actions by police offi-
cers who are in a place where they are entitled to be and are
responding to an immediate threat to the officers or to oth-
ers who might be present. See, e.g., [State v.] Davis, [295 Or
227,) 242, 666 P2d 802 (1983)] (illustrating point); State v.
Bates, 304 Or at 519 (officer who has reasonable suspicion
that citizen whom officer has encountered poses immediate
threat of serious physical injury to officer or others then
present may take reasonable steps to protect himself or
others)."
Cocke declined the state's invitation to recognize a new
exception to 	the warrant requirement for 	a 	"protective
sweep." However, the court did not rule out use of that tactic
by police where the circumstances justify it under this court's
standards for an officer safety search.
As in Cocke, 334 Or at 7, we again find helpful the
discussion of what constitutes a lawful protective sweep that
appears in Maryland v. Buie, 494 US 325, 110SCt1093, 108
L Ed 2d 276 (1990). Buie began by noting that the United
States Supreme Court had authorized police to carry out "a
limited patdown for weapons where a reasonably prudent
officer would be warranted in the belief, based on 'specific
and articulable facts,' and not on a mere 'inchoate and unpar-
ticularized suspicion or "hunch" that he is dealing with an
armed and dangerous individual'[.]" Id. at 332 (quoting Terry
v. Ohio, 392 US 1, 21, 27, 88 S Ct 1868, 20 L Ed 2d 889 (1968))
(citations omitted). Buie observed that the Court had applied

252 	State v. Guggenmos
the principles of Terry in the context of a search for weapons
in an automobile during a roadside encounter:
"'[T]he search of the passenger compartment of an auto-
mobile, limited to those areas in which a weapon may be
placed or hidden, is permissible if the police officer pos-
sesses a reasonable belief based on "specific and articulable
facts which, taken together with the rational inferences
from those facts, reasonably warrant" the officer in believ-
ing that the suspect is dangerous and the suspect may gain
immediate control of weapons.' "
Id. (quoting Michigan v. Long, 463 US 1032, 1049-50, 103
S Ct 3469, 77 L Ed 2d 1201 (1983)).
Drawing on the principles express in Terry and
Long, the Buie Court stated the following in the context of an
arrest in a home pursuant to an arrest warrant:
"We*** hold that as an incident to the arrest the officers
could, as a precautionary matter and without probable
cause or reasonable suspicion, look in closets and other
spaces immediately adjoining the place of arrest from
which an attack could be immediately launched. Beyond
that, however, we hold that there must be articulable facts
which, taken together with the rational inferences from
those facts, would warrant a reasonably prudent officer in
believing that the area to be swept harbors an individual
posing a danger to those on the arrest scene. This is no more
and no less than was required in Terry and Long, and as in
those cases, we think this balance is the proper one.
"We should emphasize that such a protective sweep,
aimed at protecting the arresting officers, ifjustified by the
circumstances, is nevertheless not a full search of the prem-
ises, but may extend only to a cursory inspection of those
spaces where a person may be found. The sweep lasts no
longer than is necessary to dispel the reasonable suspicion
of danger and in any event no longer than it takes to com-
plete the arrest and depart the premises."
Id. at 334-35 (footnotes omitted).
We need not decide here whether every feature of
the discussion in Buie of Fourth Amendment law also reflects
principles that this court applies under Article I, section 9.
We, however, have applied at least a similar understanding

Cite as 350 Or 243 	253
of the rules that pertain to a protective sweep challenged
under the Oregon Constitution. For example, Cocke consid-
ered the lawfulness, under Article I, section 9, of a protective
sweep carried out by police following an arrest of a proba-
tioner in a large house that contained several private apart-
ments. The police determined after the arrest that other per-
sons might be present in the house. One officer had heard
from another officer that some occupants of the house had
firearms. Additionally, the police had visited a neighboring
house about one month earlier when a neighbor had com-
plained that someone had pointed a laser sight from a win-
dow in the probationer's house, thus suggesting the presence
of a firearm. During the sweep of the residence, the police
entered the defendant's separate apartment, observed drugs
in plain sight, and arrested the defendant.
After confirming that police are permitted to take
reasonable steps to protect themselves from an immediate
threat of serious physical injury, the court concluded that a
"sweep" of the defendant's private apartment was not a
reasonable step:
"(W]e cannot say that such reasonable actions would
include entering the private apartment of another individ-
ual whose identity, connection to the scene, or even pres-
ence is unknown to the officers. * * *
"* * * (T]his case is one in which the officers could artic-
ulate only a generalized concern that was based on stale
information and that focused neither on defendant nor
his apartment. Those circumstances do not justify the
police officers' intrusion into the privacy of defendant's
apartment."
Cocke, 334 Or at 9-10.
Defendant, relying on passages in Buie and Cocke,
contends that a protective sweep was not permissible here,
because Mogle was not conducting a sweep incident to the
arrest of anyone. We think that defendant reads those cases
too narrowly.
Buie and Cocke referred to searches incident to
arrest because the police in each case were conducting a
search incident to an arrest. Bates, 304 Or at 524, confirmed

254 	State v. Guggenmos
that the necessity of taking protective measures can arise
"during the course of a lawful encounter with a citizen * * *."
Cocke, 334 Or at 9, stated that the officer-safety justification
applies to the actions of police officers responding to an
immediate threat when they are in a place where they are
entitled to be. But, as Bates and Cocke indicated, an officer's
lawful encounter with a citizen may give rise to a reasonable
suspicion that the citizen poses an immediate threat of seri-
ous physical injury to the officer or others regardless of
whether the officer is conducting an arrest. That kind of
encounter may occur when the police are lawfully present in
a private residence or an occupied building, even if they have
no intention of arresting anyone. Consequently, we examine
the reasonableness of the precautions taken, including the
tactic of a protective sweep as discussed above, to determine
whether it satisfies the requirements that pertain to any
search to safeguard officer safety.
Our cases require a careful examination of the facts
to determine whether the circumstances justify the police in
carrying out the particular search in question. Two cases
illustrate that point. In Bates, this court concluded that the
circumstances of a late-night traffic stop fell short of creating
a reasonable belief that the defendant, who drove the car,
posed an immediate threat of serious physical injury to the
officer. In State v. Foster, 347 Or 1, 217 P3d 168 (2009), this
court concluded that the information known by police about
the past violent history of the occupants of a house and the
presence of weaponry on the premises permitted the police to
believe reasonably that the residents constituted an imme-
diate threat of serious physical injury. 3
3 This court has evaluated police searches conducted to protect officer safety in
several other cases, including State u. Miglaus, 3:-17 Or 1, 13, 90 P3d 607 (2004) (pat-
down search justified by officer safety exception where police knew from personal
experience that members of the particular gangofwhich the defendant was a mem-
ber carried weapons and that one officer had recently confiscated a gun carried by
another member of that gang); State u. Amaya, 3:-16 Or 616, 6:-11-33, 89 P3d 1163
(2004) (during traffic stop, passenger's nervous behavior and attempts to conceal a
bag, together with early morning hour and high crime area, justified scrutiny of
interior of bag to eliminate immediate threat to officer safety); State u. Ehly, :-117 Or
66, 8:-l, 854 P2d 421 (199:-l) (officer safety exception applied where defendant, who
was a known felon, belligerent, under the influence of methamphetamine, and had
recently associated with an individual likely armed with an automatic handgun,
rummaged in a gym bag suspiciously with both hands hidden); State v. Davis, 295
Or 227, 243, 666 P2d 802 (1983) (warrantless entry to motel room and search of

Cite as 350 Or 243 (2011) 	255
Our task here is to apply the officer safety exception
to the facts of this case. The state relies on several circum-
stances to justify Mogle's search of defendant's bedroom:
(1) the statements by two unnamed informants (discussed
below) to Deese and Mogle; (2) information that one of
Tidwell's associates, Fonseca, "had warrants," and other
associates, Coatsworth and Monteith, were "involved" with
guns; (3) the allegation that the Third Street house was
"associated" with a house on Fifth Street; (4) the fact that two
men were seen running down the stairs, and they disre-
garded Mogle's command that they stop; (5) the fact that
Tidwell had misstated the number of adults present in his
house; and (6) the fact that Morrison was alone in the living
room with the adult female and her child. We examine those
circumstances to determine whether, either viewed sepa-
rately or as a whole, they constitute specific and articulable
facts on which an officer could base a reasonable suspicion
that one or more persons in Tidwell's house posed an imme-
diate threat of serious physical injury to an officer or others
present.
It is unremarkable that the state seeks to rely in
part on tips from informants to the police to carry its burden
to prove that Mogle had a reasonable suspicion of an imme-
diate threat in the Third Street house. The state may rely on
such tips to establish the probable cause standard to search
and to seize private property4 or the somewhat less demand-
ing standard of reasonable cause to stop a person, 5 and the
occupant not justified by need to ensure officer safety where alleged rape victim
walked out of room, thus dissipating any exigency).
4 See State v. Spicer, 254 Or 68, 71, 456 P2d 9659 (1969) (In establishing prob-
able cause for a search warrant, affidavit may recite facts reported by a police
informant if the affiant corroborates those facts with other "facts within the per-
sonal knowledge of the affiant which would lead a reasonably cautious person to
believe the informant to be reliable* * *.").Although the legislature later codified
reliability requirements that pertain to the use of hearsay in an affidavit to estab-
lish probable cause to search, see ORS 133.545(4) (affidavit must set forth facts
bearing on any unnamed informant's reliability), the statute simply restates the
reliability requirements that Article I, section 9, of the Oregon Constitution long
has imposed.
5 See State v. Lichty, 313 Or 579, 584, 35 P2d 904 (1992) (information supplied
by named informant that she saw "a bag of coke" was sufficiently credible and reli-
able to justify investigative stop based on reasonable suspicion).

256 	State v. Guggenmos
same is true of the reasonable suspicion standard that
applies in the officer-safety search context.
As in other contexts, we assess whether the police
properly relied on an unnamed informant's tip to form a
reasonable suspicion by examining the content of the infor-
mation supplied by the informant and the degree of its relia-
bility. We examine each of those factors separately. The stan-
dard of reasonable suspicion permits an invasion of privacy
in order to safeguard officer safety on the basis of an inform-
ant's report that is different in quantity or content than prob-
able cause might require, but the state nevertheless must
show that the information supplied is reliable or that the
informant is credible. As in other settings, we determine from
the record the reliability of an unnamed informant's state-
ments by evaluating the informant's basis of knowledge of
the facts reported and the facts demonstrating that the
informant is credible or that the information reported is
reliable.
The record does not disclose the basis of knowledge
for the unnamed informant who reported to Mogle that drug
sales had occurred in the Third Street house and that the
occupants had harbored "wanted people" there. Neither does
the record contain any information about the credibility of
that informant or the reliability of the reported information.
As noted, Mogle testified that he "had been by [the house]
with an informant to see if we could buy narcotics out of it."
However, Mogle did not testify about the results of that
effort. He did not relay any observations by himself or by the
informant of drug activity or the presence of weapons during
that visit.
Finally, Deese testified that he had heard from an
unnamed informant that a certain brown pickup truck might
contain drugs. Deese and Mogle later observed that truck in
the alley behind the Third Street house, although the record
does not indicate whether the brown truck was present when
the officers subsequently visited that house. The record does
not disclose the basis of the informant's information about
the truck, and Deese did not report any drug activity or any
suspicious people or activities in connection with their obser-
vation of the brown truck beyond where it was parked. That

Cite as 350 Or 243 	257
limited information is insufficient to demonstrate that the
informant was credible or that the tip about the brown
pickup truck was reliable. Even if we assume that the brown
truck still was parked behind the Third Street house when
Mogle knocked on the door, the lack ofinformation in the rec-
ord about the informant's credibility or reliability under-
mines the state's argument that the truck was linked to drug
activity or dangerous persons.
In sum, the record does not demonstrate that the
reports of the unnamed informants to Mogle and Deese were
credible or reliable. Bates requires that an officer's suspicion
of an immediate threat of serious injury be based on "specific
and articulable facts." 304 Or at 524. Those reports of the
unnamed informants to Mogle and Deese do not satisfy that
standard. Those reports are insufficient to support a reason-
able suspicion that any of the occupants of the Third Street
house posed an imminent threat of serious physical injury to
the officers during Mogle's visit. 6
The state sought to demonstrate that the Third
Street house was "associated" with a house on Fifth Street.
Mogle reported that two men, Fonseca and Monteith, had
been at the Fifth Street house, and that Fonseca "had war-
rants." However, Mogle did not report any observation of sus-
picious or dangerous activities by those men at the Fifth
Street house or at any other location. Deese stated that two
of Tidwell's 	associates, 	Coatsworth and Monteith, were
"involved in guns" and that they and their cars had been seen
together and with Tidwell. Deese did not indicate his source
for that information. He also did not disclose when or where
Coatsworth and Monteith had been seen together, whether
their involvement in guns was unlawful, or whether anyone
had observed them engaged in any unlawful, suspicious, or
violent activity. No evidence placed Coatsworth, Monteith, or
Fonseca at or near the Third Street house at any time.
6 During a lawful police-citizen encounter, a threat of serious physical injury to
an officer may occur so suddenly that the officer has no opportunity to consider the
reliability of an informant's information on which the officer has relied in assessing
the threat. We will judge the validity of a search conducted by an officer in response
to such an exigent circumstance according to the constitution's touchstone, reason-
ableness, and any other applicable criteria. This case does not present such an
extreme exigency.

The state's evidence about Tidwell's alleged associa-
tion with Fonseca, Coatsworth, and Monteith, and with the
Fifth Street house, is too vague to deserve weight in the cal-
culus. No evidence explained whether any of those persons,
acting either singly or in concert, had ever been violent to a
police officer. No evidence placed those persons in or near the
Third Street house at any time. Considering the record as a
whole, the state's contention that Tidwell had an unex-
plained 	"association" 	with 	Fonseca, 	Coatsworth, 	and
Monteith is not sufficient to create a reasonable suspicion
that those men, or any of them, were hiding in Tidwell's
house on February 9, 2005, much less that they were about to
attack the police.
The state next points to the fact that, while lawfully
present in the Third Street house, Mogle observed two men
running down the stairs. The two men paused briefly when
Mogle told them to stop, but then continued down the stairs
and toward a back door. They stopped when Deese met them
at the back door; according to Deese, the two men "absolutely
complied" with him at that point. The state contends that
that incident contributes to a reasonable apprehension of
imminent serious injury to the officers.
The context of that incident is important. Mogle
reported no sign of drug activity or weapons in the house
when he first was admitted with the consent of Tidwell's
girlfriend. Tidwell and his girlfriend were cooperative and
spoke in a conversational tone of voice.
According to the state, the conduct of the men on the
stairs nonetheless was suspicious for two reasons. First, the
conduct constituted, or at least resembled, flight from the
police. Second, the appearance of the two men demonstrated
that Tidwell had understated the number of adults in the
house by at least one.
It cannot be gainsaid that, during an encounter with
one or more people, the police may take into account any
quick movements or furtive gestures by suspects or others
nearby in deciding whether, in the totality of the circum-
stances, an immediate threat of serious physical injury

Cite as 350 Or 243
exists. We view those sorts of actions, and all surrounding cir-
cumstances, in a common-sense fashion. But here, the sur-
rounding circumstances are not sufficient to support an infer-
ence that the conduct of the men on the stairs created an
immediate threat to officer safety. 7
There can be circumstances when flight from a police
officer or other evasive behavior can combine with other sus-
picious circumstances to provide reasonable suspicion sup-
porting police protective measures. See Illinois v. Wardlow,
528 US 119, 124, 120 S Ct 673, 145 L Ed 2d 570 2000) (eva-
sive behavior "a pertinent factor in determining reasonable
suspicion" when considered with other suspicious circum-
stances, such as whether the location was a high crime area).
The actions of the men in running down the stairs and disre-
garding a verbal directive to stop from a person wearing
plainclothes-which is all that the trial court seems to have
found to have occurred-was a circumstance that under-
standably justified heightened police attention. The same is
true of the facts that it became apparent that one more adult
was present in the house than Tidwell had reported.
7 The dissent argues that the circumstances surrounding Mogle's search of
defendant's bedroom were at least as compelling as the circumstances surrounding
the search of the passenger's purse in State v. Morgan, 348 Or 283, 230 P3d 928
(2010). We conclude that Morgan is distinguishable. Morgan involved a traffic stop.
A female passenger unexpectedly got out of the car and acted agitated and nervous
in the presence of the officer. She clutched her purse tightly and shook her head
when the officer said he would have to inspect its contents if she insisted on keep-
ing the purse with her. In response, and in the officer's immediate presence, she
reached into the purse. Fearing a weapon, the officer grabbed the purse, looked
inside and saw drug paraphernalia.
In the present case, Mogle faced no agitated person in his immediate presence
reaching into a closed container that could have hidden a weapon. He saw no evi-
dence of weapons and the persons in the house spoke in conversational tones. The
behavior of the two men on the staircase, as noted, was somewhat unusual, but it
was unaccompanied by threats, clenched fists, or any gesture signaling imminent
violence. When Mogle decided tc search defendant's bedroom, defendant and
"Sam" were standing still and cooperating with Deese.
In our view, the dissent declines to view the facts here as distinguishable from
those in Morgan because the dissent places less emphasis than do we on the
requirement in Bates that the officer's suspicion of imminent serious physical
injury must be based on both specific and articulable facts, not speculation or
guesswork. ,Judged by that standard, Mogle did not have a reasonable suspicion
that defendant's bedroom harbored a person who constituted an imminent threat
of serious harm to the officers.

260 	State v. Guggenmos
Considered alone or together, however, those facts
do not indicate that the police were facing an immediate
threat of serious physical injury in the circumstances of this
case. Several other factual circumstances inform that conclu-
sion. The additional adult-defendant-and his companion,
"Sam," complied with Deese's direction to stop at the back
door, and otherwise were cooperating with Deese. Their sole
intention seemed to be to leave, not to remain and interfere
with or threaten the police. Neither the two men nor any
other occupant of the house exhibited any weapon or any vio-
lent or threatening behavior. The police saw no evidence that
the occupants were armed, and the record lacks evidence of
reliable information from police informants that other per-
sons were in the house or were armed and dangerous.
Finally, Morrison remained in the house, but he had engaged
only in small talk with Tidwell's girlfriend and her child in
the front room. 	The record contains no indication that
Morrison was facing a threat of serious personal injury from
anyone.
Considering the totality of the circumstances, Mogle
could have no more than a hunch, not reasonable suspicion,
that one or more people were hiding upstairs in defendant's
bedroom and were about to inflict serious personal injury on
an officer. Our review of the record indicates that the state
has not demonstrated that Mogle's suspicion was supported
by the kind of specific and articulable facts that our cases
require for an officer safety search of defendant's bedroom. If
there was something more that might have justified Mogle's
actions, the state did not demonstrate it on the record. As this
court observed in Bates, 304 Or at 527, "[w]e cannot presume
the existence of other favorable facts; we must confine our
review to the record made." We conclude that Mogle con-
ducted an unlawful search when he entered defendant's bed-
room and saw drug paraphernalia in the form of a mirror and
a 	straw. 	The 	trial 	court 	should 	have 	suppressed 	that
evidence.
After he completed the search of defendant's bed-
room, Mogle notified defendant of his discovery of the mirror
and straw in the bedroom and asked for defendant's consent
to conduct another search of the bedroom. Defendant gave

Cite as 350 Or 243
consent and made inculpatory admissions. Mogle, in search-
ing defendant's bedroom a second time, discovered a plastic
bag 	that 	had 	contained 	methamphetamine. 	Defendant
argues that the trial court should have suppressed the
incriminating statements that he made and the evidence dis-
covered after Mogle disclosed his observations in defendant's
bedroom.
In our view, that question is controlled by State u.
Williamson, 307 Or 621, 772 P2d 404 (1989). In Williamson,
police officers conducted what they acknowledged to be an
unlawful stop of the defendant's pickup truck. One officer
leaned over the truck bed and smelled marijuana from closed
boxes in the truck bed. The officer told the defendant that he
had smelled marijuana, gave the defendant his Miranda
warnings, and told the defendant that he could refuse to con-
sent to a search of the truck. The officer then asked the defen-
dant for consent to search the boxes. The officer also said that
if the defendant refused to consent, he would detain the vehi-
cle until he could obtain a warrant to search it. The defendant
agreed to the search. The officers searched the boxes and
found marijuana.
The defendant in Williamson weighed the conse-
quences of consenting to a search only after he knew that the
police would detain him and his truck until they could obtain
a search warrant and search the truck. This court stated that
"[i]n putting the choice to defendant in those terms, the offi-
cers * * * were trading on evidence that they had only by
virtue of the unlawful roadblock."
307 Or at 626. The court declined to recognize defendant's
consent, given under those circumstances, as voluntary, and
the court affirmed the Court of Appeals decision requiring
suppression of the evidence.
In this case, defendant similarly knew that he was
not free to leave and that the police inevitably would seize the
drug-related evidence that Mogle already had seen in plain
view in defendant's bedroom. Mogle traded on evidence that
he had observed in his unlawful search of the bedroom by dis-
closing what he had seen and asking for consent to reenter
and search the bedroom. As was true in Williamson, the

262 	State v. Guggenmos
resulting consent was not voluntary. Consequently, the evi-
dence obtained through Mogle's conduct, including the defen-
dant's statements and the plastic bag found in defendant's
room, also must be suppressed. 8
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
KISTLER, J., dissenting.
I agree with the majority that police officers may
take reasonable steps to protect themselves when they
reasonably suspect that they are faced with the risk of an
immediate threat of serious physical injury. Those steps
include the ability to engage in a "protective sweep" of a home
to ensure the officers' safety. I disagree with the majority,
however, when it holds that Detective Mogle did not reason-
ably perceive an immediate threat of serious injury to
another officer. In my view, he did, and his response to that
threat was a reasonable one. Because Mogle lawfully discov-
ered defendant's methamphetamine while taking reasonable
steps to protect another officer's safety, I agree with both the
trial court and the Court of Appeals that there was no basis
for suppressing that evidence. I respectfully dissent.
Officer Deese of the Klamath Falls Police Department
received a report from an informant that "drugs were being
sold out of [a] residence" at 614 North Third Street in
Klamath Falls. The informant also reported that a brown
Jeep pickup was either delivering drugs to the house or asso-
ciated with the delivery of drugs to the house. Deese passed
that information on to Mogle of the Oregon State Police and
told him that "if[he] saw the pickup [at that address] there'd
probably be a good chance to [contact the homeowner]." One
evening, Mogle drove by the house and "spotted the brown
pickup in [an] alley" beside the house. On driving by the
house, Mogle realized that it was the same house that a dif-
ferent informant had recently shown Mogle "as a location
8 In State v. Rodriguez, 317 Or 27, 40-41, 854 P2d 399 (1993), this court stated
that "the result [in Williamson] may also be explained as based on an exploitation
analysis." In light of our result here, we have no reason t-0 determine whether an
exploitation analysis, as discussed in Rodriguez, also requires the same outcome.

Cite as 350 Or 243 (2011) 	263
that they were selling narcotics out of and [the informant
had] said [that] they hide wanted people there." Mogle was
also aware that the house on Third Street was "associated
with an address on 5th Street where Nicholas Monteith and
Vince Fonseca had been," and he knew that there was an out-
standing warrant for Fonseca's arrest.
On seeing the brown pickup parked in the alley,
Mogle called Deese and suggested that they go to the house,
knock on the door, and talk with the occupants. A third offi-
cer, Detective Morrison, went with them. When they got to
the house, they noticed a back door to the house that opened
onto the alley. 1 Mogle told Deese "that if anybody would want
to, they'd probably run out" that door. Mogle asked Deese if
"he'd cover the exit of the back door which is on the side in the
alley by the pickup." Deese did so, while Mogle and Morrison
went to the front door. They knocked, and a man named
Tidwell came to the door. Mogle identified himself and
Morrison as police officers and told Tidwell that they had
information that "there were wanted people" living at the
house. Tidwell replied that "it was just him, his girlfriend
and a guy named Sam." There also was a child in the living
room. Mogle asked if they could look through the house to see
if anyone else was there, and Tidwell replied, "go ahead and
look." 2
Morrison stayed in the living room with the girl-
friend and the child while Mogle and Tidwell started walking
through the house. They walked through a kitchen, down a
hall, and came to a stairway that leads to a lower level. The
lower level contains two bedrooms and opens onto the alley,
where Deese was waiting. (Defendant's bedroom was on the
first floor while Tidwell occupied the two bedrooms on the
lower level.) As Mogle got to the stairway, he saw "two men
running down the stairs." He "hollered stop police. They
stopped for a short time. Looked back and then started run-
ning again."3 Mogle ran down the stairs after the two men,
1 Although Mogle referred to the door as a back door, it appears to have been a
side door that opened onto an alley running beside the house.
2 At that point, Tidwell did not place any restrictions on where Mogle could
look in the house.
3 Mogle testified that he yelled, "[S]top police." When asked whether Mogle had
yelled "stop," Deese initially said, "No." Deese then immediately added, "Not that I

264 	State v. Guggenmos
who ran out the door to the alley and into Deese. At that
point, they stopped.
Mogle caught up with the two men and asked them
why they were running, but "[t]hey didn't give [him] an
answer." Mogle asked Deese to check whether either man
had any outstanding warrants while he "went back upstairs
to clear the upstairs because my other officer was up there by
himself." Mogle then "cleared" the upstairs by briefly looking
into the rooms to see if there were any other unexpected per-
sons there. When asked why he had not taken Tidwell with
him, Mogle explained:
"Because I didn't want to have, I was told there was only
go[ing to] be one other person there, now all of a sudden I
got two other people there and Mr. Tidwell makes three. I
didn't want to go back upstairs with Mr. Tidwell after
seeing two people already run, because as I testified, he
[Tidwell] was associated with Vince Fonseca and Nick
Monteith and I knew that at that time Fonseca had war-
rants so I thought maybe he might be upstairs."
In briefly checking the rooms on the first floor for
other persons, Mogle saw, in plain view in what turned out to
be defendant's bedroom, a "mirror with white powder residue
and a yellow straw on a table next to the bed." Mogle contin-
ued to check for other persons. When he had satisfied himself
that Morrison was safe, Mogle came back to the alley where
Deese, defendant, Tidwell, and the other man (who turned
out to be Sam) were. At that point, Mogle learned that the
bedroom in which he had found the powder, mirror, and
straw was defendant's and that there was an outstanding
warrant for defendant but not for Sam. Mogle also learned for
the first time that Tidwell may not have had authority to con-
sent to a search of the entire house; that is, although Tidwell
initially had told Mogle to "go ahead and look" through the
house and had placed no restriction on Mogle's ability to do
so, Mogle learned after he had checked defendant's bedroom
recall." When asked again whether Mogle had said stop, Deese explained, "I just
don't recall that." The trial court found that, when Mogle saw the "two men run
down the stairs[,] Officer Mogle yelled at them to stop." The two officers' testimony
differed only in whether Mogle had yelled "stop," not whether Mogle also had iden-
tified himself as a police officer. When the trial court credited Mogle, it implicitly
credited his testimony that he "hollered stop police."

Cite as 350 Or 243 (2011) 	265
for wanted persons that Tidwell may have lacked authority
to consent to a search of that bedroom.
The issue in this case is narrow. There is no dispute
that Mogle searched defendant's bedroom when he entered
the room to look for wanted persons. Because Mogle did not
have a warrant, the search must come within an exception to
the warrant requirement, such as consent or officer safety, to
comply with Article I, section 9, of the Oregon Constitution.
See State v. Snow, 337 Or 219, 223-24, 94 P3d 872 (2004). On
that issue, the state does not argue that Tidwell had author-
ity to consent to Mogle's search; that is, the state does not
contend that Tidwell's initial, unrestricted consent to look
through the house was sufficient to permit Mogle's later
search of defendant's bedroom.4 Rather, the state argues that
Mogle's search was valid because it came within the officer
safety exception; that is, the state contends that Mogle had a
reasonable suspicion, based on specific and articulable facts,
that there was a risk of serious physical injury to Morrison.
In resolving that issue, the majority and I part company over
one aspect of it. We disagree whether the evidence in this
case was sufficient to meet that standard.
The question whether Mogle's actions came within
the officer safety exception entails three related but separate
issues, and it is helpful to distinguish them. The first issue is
whether Mogle had a reasonable suspicion to believe that
there were other persons in the house. If he did, the second
In 1983, this court held that, under the Fourth Amendment, a person must
have actual authority to consent to a search of someone else's property. State u.
Carsey, 295 Or 32, 46, 664 P2d 1085 (1983). This court implied in Carsey that actual
authority also would be required under Article I, section 9, but it specifically did
not decide that question. See 295 Or at 34 n 1. Seven years later, the United States
Supreme Court rejected this court's Fourth Amendment holding in Carsey. Illinois
v. Rodriguez, 497 US 177, 186, 110 S Ct 2793, 111 L Ed 2d 148 (1990). The Court
held that, under the Fourth Amendment, actual authority is not required to con-
sent to a search of someone else's property; apparent authority is sufficient. Id.
This court has never returned to the state law question that it did not decide in
Carsey-whether Article I, section 9, requires actual authority to consent. In this
case, the state has not argued that Tidwell had either actual or common authority
to consent to the search of defendant's bedroom, nor has it argued that apparent
authority is sufficient under Article I, section 9. Accordingly, I assume, as does the
majority, that some other exception to the warrant requirement is necessary to jus-
tify Mogle's entry into defendant's bedroom.

266 	State v. Guggenmos
issue is whether Mogle reasonably suspected that those per-
sons might pose an immediate risk of serious physical injury
to Morrison. The final issue is whether the steps that Mogle
took to 	protect Morrison from 	the 	risk of injury were
reasonable.
In resolving those issues, we consider both the qual-
ity and quantity of information that Mogle possessed when
he went back into the house to check for wanted persons. See
Alabama v. White, 496 US 325, 330, 110 S Ct 2412, 110 L Ed
2d 301 (1990) (considering those issues). As other courts have
recognized, the quality of information necessary to establish
reasonable suspicion is less than that required for probable
cause. Id.; cf. State v. Montigue, 288 Or 359, 363-67, 605 P2d
656 (1980) (establishing a higher evidentiary standard for
probable cause determinations). In considering that issue,
the courts have distinguished among anonymous tips, infor-
mation obtained from known but undisclosed informants,
and information obtained from disclosed informants. See
Wayne R. LaFave, 4 Search and Seizure§ 9.5(h), 570-98, (4th
ed 2004). For instance, in the context of determining whether
reasonable suspicion exists, the courts have recognized that
information obtained from an undisclosed informant may
have sufficient indicia of reliability because the informant is
subject to criminal charges for supplying false information to
an officer. See Adams v. Williams, 407 US 143, 146-47, 92
S Ct 1921, 32 L Ed 2d 612 (1972); LaFave, 4 Search and
Seizure§ 9.5(h) at 573-74. Conversely, the courts have found
reasonable suspicion based on anonymous tips only when
corroborating circumstances provide grounds for determin-
ing the reliability and basis of the anonymous tipster's infor-
mation. Compare White, 496 US at 331-32 (anonymous tip
that accurately predicted the defendant's future behavior
sufficient to support reasonable suspicion), with Florida v.
J. L., 529 US 266, 271-72, 120 S Ct 1375, 146 L Ed 2d 254
(2000) (anonymous tip that failed to provide any predictive
information and thus left the police without a basis to test the
informant's knowledge or credibility insufficient to establish
reasonable suspicion).
In this case, Mogle relied on information from two
known but undisclosed informants. Because both informants

Cite as 350 Or 243 	267
were subject to criminal penalties for falsely reporting infor-
mation to the police, ORS 162.375, their reports have some
reliability. See State v. Lichty, 313 Or 579, 584-85, 835 P2d
904 (1992) (so holding regarding named informant). Addi-
tionally, the two reports cross-corroborate each other, and
the officers observed a brown Jeep pickup parked by the
house, consistently with one informant's report. It may be
that the two informants' reports would not be sufficiently
reliable, standing alone, to establish a reasonable suspicion
that drug sales were being conducted out of the house on
Third Street or that wanted persons were hidden inside.
However, what Mogle learned once he was inside the house
corroborated the informants' reports.
As noted, when Mogle first spoke with Tidwell,
Tidwell told him that there were three adults in the house:
Tidwell, his girlfriend, and Sam. However, when Mogle saw
two men running down the stairs, he realized that there was
at least one more person in the house than Tidwell had
reported. The information that Mogle learned corroborated
the informants' reports in two respects. First, the men's sud-
den flight and their refusal to stop when Mogle directed them
to do so corroborated the informants' reports that people
inside the house were involved in criminal activity. Second,
Mogle reasonably could infer that the reason that Tidwell
had not been truthful about the number of people in the
house was because the people in the house were involved in
drug sales or because the house was used to hide wanted per-
sons, further corroborating the information that both Mogle
and Deese had received from the informants. That corrobo-
ration sufficiently validated the informants' reports so that
those reports, together with the information that Mogle per-
sonally observed once inside the house, should be considered
in determining whether Mogle reasonably suspected that
another person could be in the house who posed a risk of seri-
ous physical injury to Morrison.
That substantive determination entails two issues.
The 	first 	is 	whether Mogle 	reasonably 	suspected 	that
another person could be at large in the house. The second is
whether he reasonably suspected that any person still at
large posed a risk of serious physical injury to Morrison. On

268 	State v. Guggenmos
the first issue, when Mogle undertook a protective sweep, he
knew that Tidwell had "underreported" the number of per-
sons in the house. Specifically, Mogle had already discovered
one more person than Tidwell had reported, and he reason-
ably suspected that there could be other people in the
house-persons 	whom Tidwell 	had 	not disclosed 	either
because Tidwell was hiding wanted persons or because those
persons were engaged in drug sales or for both those reasons.
On the second issue, Mogle reasonably suspected
that any persons still at large in the house posed a risk of
serious physical injury to Morrision, who remained in the liv-
ing room. Tidwell had not told the truth about the number of
persons in the house. That fact, coupled with defendant's and
Sam's sudden and unexplained flight down the stairs, tended
to corroborate the informants' reports that drug sales were
occurring in the house and that Tidwell was hiding wanted
persons there. Mogle reasonably suspected that any person
still at large in the house had pressing reasons to avoid cap-
ture and could pose a risk of serious physical injury to
Morrison, who at that point stood in the way of the only other
exit from the house.
It may be that not every person who sells drugs or is
subject to warrants poses a risk of danger to the police. But
when the two persons whom Mogle had uncovered in the
house had sought to flee despite the detective's commands to
stop and when the detective had reason to suspect that other
wanted persons could still be hiding in the house, he also had
reason to suspect that any person who remained at large in
the house posed a risk of danger to the one officer who, at that
point, was still inside. The question, after all, is not whether
Mogle was certain that any person still at large in the house
posed a risk of danger to Morrison or even whether Mogle
had probable cause to believe that fact. Rather, the question
is whether Mogle had a reasonable suspicion "that [any per-
son still at large in the house] might pose an immediate
threat of serious physical injury to the officer." State v. Bates,
304 Or 519, 524, 747 P2d 991 (1987) (emphasis added). He
did.
To be sure, as the majority notes, when Mogle under-
took a protective sweep of the house, he was not aware that

Cite as 350 Or 243 (2011) 	269
defendant, Sam, or Tidwell possessed any weapons, nor had
they made any threats or belligerent gestures toward Deese
or himself. Tidwell, however, had lied about the number of
people in the house, and defendant and Sam had continued to
flee despite Mogle's command to stop. When asked why they
had run, they had provided no explanation, and Mogle
reasonably suspected that they, and anyone else still at large
in the house, were involved in drug sales or were wanted per-
sons. This is not a case, such as a roadside traffic stop, in
which the officers have no basis for suspecting that the occu-
pants of the car are engaged in criminal activity and in which
we consequently have required some evidence of the presence
of a weapon or furtive gestures before upholding a search for
officer safety. See, e.g., State v. Amaya, 336 Or 616, 632-33, 89
P3d 1163 (2004) (discussing cases). In that regard, in deter-
mining whether Mogle reasonably suspected that any person
who remained in the house "might pose an immediate threat
of serious physical injury," it is helpful to compare this case to
our most recent officer safety case, State v. Morgan, 348 Or
283, 230 P3d 928 (2010).
In Morgan, the defendant was a passenger in a car
stopped for a traffic offense. Id. at 285. She got out of the car
on her own, acted "agitated and nervous," and clutched her
purse or tote bag tightly. Id. at 286. When the officer told her
that he would have to check her purse for weapons if she were
going to keep it with her, she began backing away, shaking
her head, and reached into the purse. Id. At that point, the
officer seized the purse and, in doing so, saw drug parapher-
nalia inside. Id. This court held that the officer's actions came
within the officer safety exception to Article I, section 9. Id. at
290. Specifically, we held that the officer in Morgan reason-
ably suspected that the defendant posed a risk of immediate
serious physical harm based on her unexpected exit from the
car, her visibly nervous behavior, and the fact that she had
reached into her purse. Id.
The officer in Morgan had no reason to suspect that
the defendant in that case was involved in drug sales or hid-
ing from the police, as Mogle did here. For all the officer in
Morgan knew, the defendant was merely a passenger in a car
stopped for a minor traffic offense. If the defendant's actions

270 	State v. Guggenmos
in Morgan were sufficient to give rise to a reasonable suspi-
cion that she might pose an immediate, serious threat to the
officer's physical safety, a fortiori so was defendant and
Sam's unexplained flight from the officer, when coupled with
the fact that Mogle reasonably suspected that defendant,
Sam, and anyone else still at large in the house was involved
in drug sales or was wanted by the police and hiding from
them.
The final question is whether Mogle took reasonable
steps to check whether anyone else was present in the house.
On that point, the officers did not have to be at Tidwell's
house. They did not, for example, have to be there to execute
an arrest or search warrant or serve a restraining order on
anyone. If all the officers had been safely out of the house
when Mogle caught up with defendant, Sam, and Deese in
the alley, it might not have been reasonable, at least for offi-
cer safety purposes, for Mogle to have reentered the house to
ensure that no one else was inside. Morrison, however,
remained in the living room with defendant's girlfriend and
the child, and Mogle reasonably went back into the house to
briefly check through a cursory visual scan that no one else
was there. The check was no more extensive than necessary
to ensure Morrison's safety.
In my view, Mogle was well within the scope of the
officer safety exception when he came upon the methamphet-
amine in defendant's bedroom and, for that reason, did not
violate defendant's Article I, section 9, rights. I would hold, as
both the Court of Appeals and the trial court did, that the offi-
cer's actions stayed within constitutional limits. I respect-
fully dissent.
Linder, J., joins in this dissenting opinion.