S057279, Opinion — State v. Morgan

283
Argued and submitted November 3, 2009, decision of Court of Appeals and
judgment of circuit court affirmed May 13, 2010
STATE OF OREGON,
Respondent on Review,
v.
CAROLYN ANN MORGAN,
Petitioner on Review.
(CC 062638BFE; CA A134236; SC 8057279)
230 P3d 928
C,JS, Searches and Seizures § 88.
En Banc
On review from the Court of Appeals.*
* Appeal from ,Jackson County Circuit Court, William G. Purdy, ,Judge. 226 Or
App 515, 203 P3d 927 (2009).

284 	State v. Morgan
Peter Gartlan, Chief Defender, Office of Public Defense
Services, Salem, argued the cause for petitioner on review.
With him on the brief was David C. Degner, Deputy Public
Defender.
Susan 	G. 	Howe, 	Senior Assistant Attorney General,
Salem, argued the cause for respondent on review. With her
on the brief were John R. Kroger, Attorney General, and
Jerome Lidz, Solicitor General.
GILLETTE, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.

Cite as 348 Or 283 	285
GILLETTE, J.
This is a criminal case in which defendant was con-
victed of unlawful possession of heroin, ORS 475.854,1 which
a police officer discovered in defendant's purse. Defendant
reached into the purse after the officer indicated that he
needed to search it for weapons. The officer, concerned that
defendant was reaching for a weapon, seized the purse and
saw drug paraphernalia inside it. The trial court refused to
suppress the evidence found in the purse, and a divided panel
of the Court of Appeals affirmed. We allowed defendant's
petition for review and now affirm the decision of the Court of
Appeals and the judgment of the trial court.
Defendant's drug arrest arose out of a legal traffic
stop of a car in which defendant was a passenger. During the
stop, the stopping officer, Lance, learned that the driver's
license was suspended. At that point, Lance asked defendant
if she had a driver's license. He did so because he could
release the car to her rather than have it towed if defendant
were able to submit proof of valid driving privileges. See ORS
809. 720(3)(a) (permitting release of an impounded vehicle to
person entitled to lawful possession, who submits proof of
valid driving privileges). Defendant gave Lance her license,
along with the car's registration and insurance card (defen-
dant was the car's owner). Lance then contacted police dis-
patch and learned that defendant's license was valid but that
there was an outstanding warrant for the driver's arrest.
After placing the driver in the back of his patrol car, Lance
returned to the car where defendant still was sitting. He
handed defendant her license and told her that, because it
had checked out as valid, he would not need to have the car
towed. Lance then asked defendant "if [he] could look in the
vehicle and make sure [he] wasn't leaving her with any contra-
band." Defendant gave Lance permission to search the car.
When defendant consented to the search, she still
was seated in the car. She spontaneously got out, apparently
1 ORS 475.854 provides:
"(1) It is unlawful for any person knowingly or intentionally to possess
heroin.
"(2) Unlawful possession of heroin is a Class B felony."

286 	State v. Morgan
to permit the search. As she did so, she picked up and took
with her a large purse (also described in trial testimony as a
"tote bag''), which Lance previously had seen between the
front seats. Lance told defendant that, if she brought the
purse with her, he would have to search it for weapons. He
also told her, however, that she could just leave the purse in
the car. He testified that, had she done so, he would not have
searched it. ("There was no reason for me to look at it if she
left it in the vehicle.")
At that point, defendant's demeanor changed from
"relaxed and cordial" to "agitated and nervous." Speaking
very rapidly, she gave Lance "like four reasons why [he] could
not look in her bag," and, while doing so, she "clutched the
bag to her chest." Lance explained to defendant that, if defen-
dant were to leave her purse in the car, that would be satis-
factory, but, if she insisted on keeping it with her, he would
have to search it for weapons. 2 Defendant began backing
away from Lance while shaking her head. She then reached
into the purse. Lance, concerned that defendant was reach-
ing for a weapon, seized the purse. As he did so, he looked
down into the bag, which was open at the top, and observed
what he recognized as drug paraphernalia in it. A subse-
quent search of defendant's car produced drugs and more
drug paraphernalia. 3
The present criminal case ensued. Defendant moved
to suppress the evidence obtained as a result of the seizure of
her purse. The trial court denied defendant's motion and
made the following findings of fact, each of which is sup-
ported by the record:
"(l) 	Defendant * * * was a passenger in a vehicle
driven by [another person].
"(2) 	Deputy Lance lawfully stopped the vehicle driven
by [the other person].
2 The fairest reading of Lance's testimony, given the trial judge's ruling, was
that Lance also conveyed to defendant the fact that, if she left the purse in the car,
Lance would not search it. However, Lance did not testify to having used precisely
those words, and there is another basis for deciding this case. We therefore simply
not€ the likely meaning of the testimony in the record.
" Defendant does not raise any separate issue respecting the officer's subse-
quent search of the car.

Cite as 348 Or 283 	287
"(3) 	[The other person] had a suspended license. He
was arrested and placed in the [officer's] patrol vehicle.
"(4) 	Deputy Lance checked to see if [defendant] had a
valid license to drive the vehicle. She did. She was also the
registered owner of the vehicle.
"(5) 	Deputy Lance asked for and received permission
from [defendant] to search the vehicle prior to releasing it
to her.
"(6) 	When [defendant] exited the vehicle she also took
her bag. [Deputy Lance] told her he needed to look in her
bag for officer safety [reasons] if she was going to keep it[,]
or she could leave it in the car.
"(7) 	[Defendant] clutched her bag, shook her head and
backed up into the car when the deputy stated he needed to
search the bag. She became more nervous upon his state-
ment. She then reached into the bag.
"(8) 	The deputy then took the bag for officer safety rea-
sons and saw paraphernalia for drug use."
From the foregoing, the trial court concluded that the defen-
dant had not been impermissibly seized and that the officer
properly took defendant's bag from her. Defendant then
entered a 	conditional guilty plea, ORS 	135.335(3), and
appealed to the Court of Appeals. A divided panel of that
court affirmed. State u. Morgan, 226 Or App 515, 203 P3d 927
(2009). We granted defendant's petition for review.
In this court, defendant offers several alternative
arguments in support of her central premise, which is that
the seizure of her purse was constitutionally impermissible. 4
We address each in turn.
The arresting officer told defendant that, if she
insisted on removing her purse from the car, he would have to
search it. Defendant argues first that a motorist's consent to
a search of her car does not automatically justify a frisk of the
motorist or a search of items in her immediate possession.
From this, defendant posits that the officer was claiming
4 From that premise, defendant asserts that evidence derived from the search
of her purse must be suppressed. The state's quarrel is with defendant's premise; it
does not argue that, even if the purse were seized unlawfully, the challenged evi-
dence nonetheless would be admissible.

State v.
(and that the state now claims) that an investigating officer
at the scene of a vehicle stop may "pat[ ]down every motorist
before conducting a consent search of a car, regardless of the
particular circumstances of the incident."
But that is not this case. Here, the officer did not
patdown defendant or carry out a seizure of her purse on the
basis of some standard police practice. There is no question,
of course, that Lance acted in a constitutionally significant
way (by seizing the purse) after events led him to believe that
his safety was threatened, and defendant has every right to
contest what the officer actually did. But this argument is
premised on speculation about what the officer might have
done. It is not well taken.
In the Court of Appeals, the dissent opined that the
officer's advice to defendant-that she must either leave her
purse in the car or allow it to be searched-itself constituted
a seizure of defendant, her purse, or both. See Morgan, 226
Or App at 527-28 (Sercombe, J., dissenting). Defendant urges
us to adopt the dissent's view. However, our review of the rec-
ord shows that the Court of Appeals' majority was correct
when it asserted that no such argument ever was made to the
trial court. Id. at 523 n 2. Thus, the argument is not entitled
to consideration now.
Defendant next argues that Lance's insistence on
searching defendant's 	purse impermissibly expanded on
what defendant characterizes as her "clear intent" concern-
ing the scope of her consent to search her car. Defendant's
theory at this point is that, when Lance told defendant that
he intended to search her purse if she did not leave it in the
car, he somehow unilaterally expanded the scope of defen-
dant's consent to search the car. A single answer to this argu-
ment suffices: The state does not now and has never argued
that the search of defendant's purse was justified under a
consent theory. That argument is not well taken.
Defendant next argues that her refusal to consent to
a search of her purse did not give rise to either (1) reasonable
suspicion to believe that she was armed and an imminent
threat to the arresting officer or (2) probable cause to believe
that the purse contained evidence of a crime. The second part
of defendant's argument may be answered summarily: The

289
state has never contended that the arresting officer had prob-
able cause to believe, before it was seized, that defendant's
purse contained evidence of a crime. The matter is a non-
issue. That returns us to the first part of defendant's argu-
ment, viz., that the state is arguing that defendant's refusal
to permit a search of her purse itself created reasonable sus-
picion that she was "armed and an imminent threat." We
agree with defendant that her desire to maintain her privacy
interest in the contents of her purse did not itself create a
reasonable suspicion. But the crux of this case is not defen-
dant's privacy interest in her purse; it is what her overt acts
suggested that the purse contained. We turn to the parties'
various positions on that subject.
Both the trial court and the Court of Appeals' major-
ity based their rulings on the so-called "officer safety" doc-
trine that this court first described in State v. Bates, 304 Or
519, 524, 747 P2d 991 (1987):
"Upon consideration, we hold that Article I, section 9, of the
Oregon Constitution, does not forbid an officer to take
reasonable steps to protect himself or others if, during the
course of a lawful encounter with a citizen, the officer devel-
ops a reasonable suspicion, based upon specific and articu-
lable facts, that the citizen might pose an immediate threat
of serious physical injury to the officers or to others then
present."
We also stated in Bates that, in applying the doctrine, it is not
the role of the courts to "uncharitably second-guess an offi-
cer's judgment" concerning a potential threat. Id. All that is
required, under Bates, is that the officer's belief be reason-
able and based on specific and articulable facts. Id.; see also
State v. Amaya, 336 Or 616, 631-33, 89 P3d 1163 (2004) (to
same effect); State v. Ehly, 317 Or 66, 81-82, 854 P2d 421
(1993) (same).
In Bates, two officers stopped the defendant late at
night as he was driving in a "high crime" area. The defendant
was cooperative and did not display any hostile or aggressive
behavior. However, the officers became concerned for their
welfare when they noticed a partially concealed bag under
the defendant's seat. The officers asked the defendant to pull
the bag completely into view. He did not. Instead, he reached

State v.
down and placed his hands on the bag, and remained in the
position as the officers repeatedly ordered him to pull the bag
into view. After a few seconds, the officers drew their guns,
ordered the defendant out of the car, and found contraband in
the bag. This court ruled that, on the facts presented, the offi-
cers' actions did not come within the officer safety doctrine.
304 Or at 527-28.
Defendant argues that her actions in this case were
even less threatening than those of the defendant in Bates.
Nothing about defendant, her car, or the arrest of the driver
suggested that defendant was intoxicated or involved in ille-
gal activity. Defendant's behavior was not hostile or aggres-
sive and she fully cooperated with Lance's requests, even to
the point of agreeing to a search of her car.
Notwithstanding defendant's arguments to the con-
trary, some of defendant's actions, considered together, were
sufficient to elevate Lance's reasonable sense of concern for
his safety: Her sudden exit from her car was unexpected. Her
swift change of demeanor from calm to visibly nervous for an
unknown reason understandably surprised the officer. What
tipped the scales, however, was defendant's act of reaching
into the purse. Lance already had mentioned to defendant his
concern about weapons. To thereafter permit defendant to
reach into a capacious purse that readily could have con-
cealed a weapon would have been folly. Once defendant
began to reach into the purse, Lance could reasonably sus-
pect that she might pose an immediate threat of serious
physical injury to him, and Article I, section 9, of the Oregon
Constitution did not forbid him from taking reasonable steps
to protect himself-including seizing the purse. See Amaya,
336 Or at 619 (officer's question about contents of bag that
woman was trying to conceal was based on reasonable suspi-
cion that woman posed immediate threat and did not violate
Article I, section 9); Ehly, 317 Or at 81-83 (officers developed
reasonable suspicion that motel tenant was searching for gun
in duffel bag and could constitutionally search bag under offi-
cer safety doctrine). Defendant's argument to the contrary is
not well taken.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.