S056299, Opinion — State v. Foster

1
Argued and submitted May 12, decision of Court of Appeals reversed;
judgment of circuit court affirmed September 17, 2009
STATE OF OREGON,
Petitioner on Review,
v.
ROBERT LYNN FOSTER,
Respondent on Review.
(CC CM0520170; CAA129929; SC S056299)
217 P3d 168

2 	State v. Foster
CJS, Searches and Seizures § 14.
En Banc
On review from the Court of Appeals.*
Douglas F. 	Zier, Assistant Attorney General, 	Salem,
argued the cause and filed the brief for petitioner on review.
With 	him 	on 	the 	brief 	were 	John 	R. 	Kroger,
Attorney 	General, 	and 	Rolf C. 	Moan, 	Acting 	Solicitor
General.
Bronson D. James, Chief DEiputy Defender, Salem, argued
the cause and filed the brief for respondent on review. With
him 	on 	the 	brief 	was 	Peter 	Gartlan, 	Chief 	Deputy
Public 	Defender, 	Appellate 	Division, 	Office 	of 	Public
Defender Services.
GILLETTE, J.
The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is affirmed.
* Appeal from Benton County Circuit Court, Janet Schoenhard Holcomb,
Judge. 219 Or App 276, 182 P3d 262 (2008).

Cite as 347 Or 1 	3
GILLETTE, J.
In this criminal case, we are asked to consider
whether evidence seized as a result of observations by an offi-
cer who looked into an open, lighted window of a residence at
night, before serving a restraining order at that residence,
should be suppressed under either the state or federal consti-
tutional prohibitions against unreasonable searches and sei-
zures. The trial court refused to do so, concluding, on the facts
of this case, that the actions of the officer were justified by
officer safety concerns. The Court of Appeals disagreed and
held that the evidence should have been suppressed. State v.
Foster, 219 Or App 276, 182 P3d 262 (2008). We allowed the
state's petition for review and now reverse the decision of the
Court of Appeals.
We take the following facts from the trial court rec-
ord and the findings of the trial court. See State v. Ehly, 317
Or 66, 75, 854 P2d 421 (1993) ("A trial court's findings of his-
torical fact are binding on appellate courts if there is consti-
tutionally sufficient evidence in the record to support those
findings.").
The Benton County Sheriffs Office was engaged to
serve a restraining order on Aaron Mathews Spinney. On
Saturday, January 15, 2004, the Sheriffs Office received
information that Spinney was staying at defendant's resi-
dence near Philomath. Both defendant and his residence
were well known to the members of the Sheriffs Office.
Deputy Hardison, one of the officers sent to 	serve the
restraining order, stated that he had been to the residence
"numerous times"-"! couldn't even begin to tell you how
many times I've been to th[at] residence." In Hardison's expe-
rience, the number of people at the residence at any particu-
lar time varied from two to as many as 10 or more. On several
occasions, persons at the residence had fled the police. On at
least two occasions, deputies had been required to use force
and fight with people at the residence. Defendant and his
father (who also lived in the residence) had both been known
to have weapons in the past. Firearms had been recovered
from the residence, and Hardison had seen a fully automatic

4
weapon 	that the 	police 	had 	seized there. 	According to
Hardison, because of past problems with people at the resi-
dence, "[i]t's usually four or more [deputies] go up there."
In this case, it was four deputies. They arrived at
approximately 11:35 p.m. 1 According to Hardison, when the
deputies arrived they were deployed to meet two concerns:
"[W]e wanted to make sure that we didn't have people run-
ning out of the back and people circling around on us, as
well as keeping an eye on the residen[ts] inside the house
* * *"
One deputy went up the path to the front door, while another
deputy was sent around to the back door. Hardison went
20 feet past the front door to look into a lighted bedroom win-
dow. In looking in, Hardison stood in a flower or dirt bed
directly beneath the window. The window was open, and
Hardison did not use any device to help him look inside. 2
Almost immediately after first looking in the win-
dow, Hardison saw defendant enter the room, remove an off-
white substance from a sandwich bag, and place it into a
pipe. 	Based 	on 	his 	training 	and 	experience, 	Hardison
believed that defendant was loading methamphetamine into
the pipe. From prior contacts, Hardison was aware that
defendant had used methamphetamine. Hardison reported
what he had seen to the officer in charge at approximately
the same time that Spinney came out of the residence to be
served with the restraining order. The deputies were con-
cerned that defendant would destroy the drugs, either by con-
suming them or by flushing them down the toilet. Hardison
then entered the residence, arrested defendant, and seized
the bag, the pipe, and a set of scales.
1 The reason that the officers chose that hour is not altogether clear. Obvious
reasons include the greater likelihood that the man they sought would be there, as
well as the value of darkness in concealing the officers' approach.
' The trial court concluded that the window was open. Hardison testified that
there were horizontal blinds on the window, but he did not testify that the blinds
were down or closed, and his other statements implied that the blinds either were
up or open. Thus, the trial court's inferentially based conclusion was a permissible
one.

5
Defendant was indicted for unlawful possession of a
controlled substance (methamphetamine). He moved to sup-
press the evidence that Hardison had seized as having been
obtained in violation of his state and federal constitutional
rights to be secure from unreasonable searches and seizures.
The trial court held a hearing and, on July 11, 2005, sent a
letter to the parties setting out its findings of fact and conclu-
sions oflaw. Although the trial court agreed that defendant
had a privacy interest in the curtilage of the residence, 3 the
court nonetheless concluded that Hardison had taken up the
position near the window for valid officer safety reasons and
that the evidence that Hardison saw and later seized was in
plain view from that position. The trial court therefore denied
defendant's motion to suppress.
Defendant subsequently entered a conditional guilty
plea, reserving the right to appeal the trial court's ruling on
the motion to suppress. See ORS 135.335(3) (authorizing
such a procedure). The trial court entered a judgment of con-
viction and sentence. Defendant appealed.
As 	noted, 	the 	Court 	of Appeals 	reversed 	and
remanded, concluding that Hardison's observations through
the window constituted an illegal search under Article I, sec-
tion 9, of the Oregon Constitution. The court began its
analysis by noting that the privacy protections of the Oregon
Constitution are particularly applicable to a person's home
and the area immediately surrounding it. Foster, 219 Or App
at 281. The court noted, however, that there would be
no search if "a police officer makes an 'unaided observation'
from a 'lawful vantage point.'" Id. at 281 (quoting State v.
Ainsworth, 310 Or 613, 617, 801 P2d 749 (1990)). The issue
thus was whether Hardison was at a lawful vantage point
when he looked in the window. The Court of Appeals con-
cluded that the deputies could approach the front door,
because there was an implied consent for visitors to contact
the residents of a house in that way. Hardison's viewpoint,
however, was not from the driveway or from a path to the
" "'[T]he common-law distinguished "open fields" from the "curtilage," the land
immediately surrounding and associated with the home.'" State v. Dixson I Digby,
307 Or 195, 209, 766 P2d 1015 (1988) (quoting Oliver v. United States, 466 US 170,
180, 104 S Ct 1735, 80 L Ed 2d 214 (1984)).

6 	State v. Foster	··-----···---------
front or back door. Indeed, Hardison had walked past the
front door to look in the window. Id. at 282.
The state argued to the Court of Appeals that "officer
safety" concerns permitted Hardison to position himself out-
side the window. 4 The Court of Appeals assumed, for pur-
poses of argument, that the officer safety doctrine could
extend to "the invasion of the curtilage of a residence beyond
the boundaries of driveways or pathways to an exterior door,"
id. at 284, but nevertheless concluded that the state had
failed to meet its burden of proof under the doctrine. That
was so because it had
"failed to identify sufficient, articulable facts to show that
officer-safety concerns required Deputy Hardison to posi-
tion himself 20 feet away from the front door, immediately
next to defendant's bedroom window, at a location that is
not on a path to the front door, back door, garage, or drive-
way as distinguished from a different location that could
ensure officer safety."
Id. 	at 	284 	(emphasis 	added). 	Having 	determined 	that
Hardison had not been standing at a lawful vantage point
when he observed defendant's conduct, the Court of Appeals
concluded that Hardison's observations were an unconstitu-
tional 	search 	under Article 	I, 	section 9, 	and therefore
reversed defendant's conviction. Id. at 284-85. As noted, we
allowed the state's petition for review.
On review, the state asserts that Deputy Hardison's
act of positioning himself under, and looking into, the win-
dow fell within the officer safety doctrine and, thus, did not
violate Article I, section 9, of the Oregon Constitution. The
state contends that the Court of Appeals applied the officer
safety doctrine in too narrow a fashion. For his part, defen-
dant contends that Court of Appeals correctly held that the
evidence must be suppressed under Article I, section 9. Alter-
natively, defendant argues .that the evidence should be sup-
pressed under the Fourth Amendment to the United States
Constitution.
4 We describe the "officer safety" doctrine at considerable length later in this
opinion. 34 7 Or at 7-8.

Cite as 347 Or 1 	7
We begin our analysis under the state constitution.
Article I, section 9, of the Oregon Constitution provides, in
part:
"No law shall violate the right of the people to be secure
in their persons, houses, papers, and effects, against unrea-
sonable search, or seizure * * *."
This court has held that certain actions taken by police offi-
cers to protect the safety of the officers (or others present) do
not violate Article I, section 9. The most comprehensive dis-
cussion of the officer safety doctrine is found in State v. Bates,
304 Or 519, 747 P2d 991 (1987). Although the facts in Bates
do not parallel those in this case, an explanation of the officer
safety doctrine that this court identified in Bates will illumi-
nate our analysis here. We therefore discuss Bates in some
detail.
In Bates, an officer had stopped the defendant's car
for excessive emissions. It was night, the stop occurred in a
"high crime" area, and the car had out-of-state license plates.
When officers approached the car, they saw that it contained
a television and a videocassette recorder. One of the officers
noticed an object on the floorboard between the defendant's
feet; he could not identify it, so he asked the defendant to pull
it out. The defendant did not pull the object out, but instead
reached under the seat and remained in that position. The
officer drew his service revolver, ordered the defendant from
the car, and pulled a closed black bag from under the seat. On
opening the bag, the officer discovered drugs (among other
things). Id. at 521-22. In the defendant's subsequent prose-
cution on drug and weapons charges, the trial court rejected
a defense motion to suppress the evidence obtained from the
search of the bag. In its review of that ruling, this court con-
sidered whether the warrantless search was justified by offi-
cer safety concerns.
The Bates court began its analysis by observing that,
generally, officers are entitled to take reasonably necessary
steps to protect their safety during an encounter with a citi-
zen, provided certain requirements are met. Specifically, the
court held that:

8 	State v. Foster
"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 develops a reasonable suspicion, based
upon specific and articulable facts, that the citizen might
pose an immediate threat of serious physical injury to the
officer or to others then present."
Id. at 524. This court added that police must be given some
discretion in the officer safety context:
"[l]t is not our function to uncharitably second-guess an
officer's judgment. A police officer in the field frequently
must make life-or-death decisions in a matter of seconds.
There may be little or no time in which to weigh the mag-
nitude of a potential safety risk against the intrusiveness of
protective measures. An officer must be allowed considera-
ble latitude to take safety precautions in such situations.
Our inquiry therefore is limited to whether the precautions
taken were reasonable under the circumstances as they
reasonably appeared at the time that the decision was
made."
Id. at 524-25.
Under the facts found in Bates, however, the court
concluded that the requirements of the officer safety doctrine
had not been met. The officer had identified five facts that
caused him to be concerned for his safety: the out-of-state
license plates, the time of day, the high crime area, the defen-
dant's appearance, 	and the presence of a 	videocassette
recorder and television on the back seat of the vehicle. Id. at
525. The court concluded that none of those facts "either indi-
vidually or collectively justified a suspicion on [the officer's]
part that this defendant posed an immediate threat [of phys-
ical harm]." Id. at 526.
The court separately addressed whether the bag
under the driver's seat justified the officer's conclusion that
the defendant was such a threat and concluded that it did
not: "In light of defendant's cooperative attitude, his lack of
aggressive or threatening behavior[,] and the absence of any
apparent weapon, the mere possibility that he might have
committed a crime and the presence of what appeared to be a
bag are not sufficient." Id. at 527. The court explained that,
although police officers "are entitled to some leeway in taking

Cite as 347Or1 	9
protective measures," the facts articulated by the officer were
not sufficient to show a reasonable belief that the defendant
was an immediate threat, and the motion to suppress the evi-
dence should have been granted. Id.
But the facts in Bates are not the facts here. In Bates,
the 	circumstances 	that 	aroused 	the 	officer's 	concerns
occurred "during the course of a lawful encounter with a citi-
zen." Id. at 524. In the present case, the pertinent facts all
were historical, i.e., they all were known before the officers'
encounter. But, in our view, the timing of the officer's knowl-
edge is not the point of invoking the officer safety doctrine.
Instead, it is sufficient that the officers be able to point to spe-
cific and articulable facts-whether historical or contempo-
raneous--that would reasonably create a fear for the safety
of the officers or others from an imminent threat to them of
serious physical injury. 5
We have summarized the pertinent facts above. Dep-
uties had been to this residence repeatedly. The residence
sometimes had 10 or more occupants. In some past visits,
persons at the residence had used force to fight the deputies.
Defendant and his father had both been known to have weap-
ons; firearms had been recovered from the residence; and a
fully automatic weapon had been seized at the residence.
Those are specific, articulable facts. The next question is
whether those facts would justify the required reasonable
suspicion of an immediate threat to the officers during the
anticipated encounter with the occupants.
Defendant contends that the foregoing facts are
"staJe," because the state's witnesses did not give the dates of
'We note in passing that the Court of Appeals analyzed the case as if the only
privilege that the deputies had to enter into the property was one of implied con-
sent for the public to go to the front door. That, however, does not exhaust the
potentially applicable privileges to engage in what would otherwise be a trespass.
"Where one is privileged to execute civil process on the person* * *of another, one
is also privileged to enter the other's land, by force if necessary, to serve the proc-
ess." 1 Fowler V. Harper, Fleming James, Jr., and Oscar S. Gray, Harper, James
and Gra.Y on Torts § 1.19, at 75 (2006) (footnote omitted); see Restatement (Second)
of Torts§§ 208, 209 (1965) (discussing requirements of the privilege). In Oregon, a
sheriff is required to serve court orders. ORS 206.030. If resistance is anticipated,
the sheriff may even command others to assist in overcoming the resistance. ORS
206.050. On the other hand, the privilege of entry to serve civil process does not
necessarily permit the server to roam at will across the property.

10 	State v. Foster
the prior incidents. That is, defendant contends that the
other incidents on which Hardison relied may have been so
remote in time that it was not reasonable to rely on them as
showing that occupants of the residence might pose an imme-
diate threat of serious physical injury. We disagree. Here, the
evidence concerned the tendency of the occupants of the
house to be prepared to, or to actually, resort to violence.
Information about the presence of a small amount of contra-
band at a given place (to use but one example) may grow
stale, see, e.g., State v. Ingram, 251 Or 324, 445 P2d 503
(1968) (magistrate could not find probable cause to search
residence for narcotics based solely on fact that heroin had
been obtained from residence one month before application
for search warrant was filed), but human tendencies have a
longer shelf life. Moreover, and even if "staleness" were the
pertinent inquiry, the state did offer evidence establishing at
least the outer boundary of when the incidents occurred:
Hardison testified that he had been with the sheriff's office
for six years. That fact, coupled with Hardison's testimony
that he had been to the residence "many times," showed that
the residence and the people residing in it had a history that
a reasonable officer would believe still was applicable. Given
that history of violence and of weaponry on the premises and
in the hands of the occupants, we conclude that the deputies
had a reasonable suspicion that the occupants of the resi-
dence posed an immediate threat of serious physical injury.
We turn to the next part of the officer safety doctrine,
viz., "whether the precautions taken were reasonable under
the circumstances as they reasonably appeared at the time
that the decision was made." Bates, 304 Or at 525. As noted,
this court, in evaluating the reasonableness of a particular
officer safety decision, will not "uncharitably second-guess"
on-the-spot choices of persons who must make difficult deci-
sions under great pressure, often with little or no time for
reflection. Id. at 524.
In this case, the deputies had a reasonable suspicion
that they were about to encounter circumstances in which
(1) there might be as many as 10 occupants of the residence,
(2) those occupants might be armed, and (3) the occupants
might be willing to use force against the deputies. There was

Cite as 347 Or 1 	11
an open, lighted window some 20 feet past the front door;
Hardison went to look through that window in order to
"keep[] an eye on the residen[ts] inside the house" while the
deputies served the restraining order. By doing so, Hardison
would have been able to warn the other deputies if an
occupant either was armed or had begun arming himself
when the deputies knocked. Under those circumstances, we
agree with the trial court that Hardison's actions were within
the range of reasonable precautions that the officers were
entitled to take against the anticipated threat.
The Court of Appeals appears to have reached a con-
trary conclusion because it applied a more demanding test to
the deputies' actions. The issue, that court stated, was
whether the state had "identif[ied] sufficient, articulable
facts to show that officer-safety concerns required Deputy
Hardison to position himself [where he did,] * * * as distin-
guished from a different location that could ensure officer
safety." Foster, 219 Or App at 284 (emphasis added). That
test misreads both the officer safety doctrine and Bates,
which explained the doctrine. The requirement of specific,
articulable facts relates only to whether an officer reasonably
suspected an immediate threat. See Bates, 304 Or at 524 ("a
reasonable suspicion, based upon specific and articulable
facts, that the citizen might pose an immediate threat of seri-
ous physical injury"). Beyond that, the doctrine asks only
whether 	safety 	precautions chosen 	by the 	officer 	were
reasonable under the perceived circumstances. The state is
not required, as the Court of Appeals suggested, to justify the
choice of one reasonable precaution over another. Indeed,
such a post hoc weighing of alternatives would be exactly the
sort of uncharitable second-guessing that Bates itself con-
demned: It would require that an option that was chosen
quickly and under pressure be the same one that a reviewer
later identifies at leisure and after reflection. Courts should
not weigh the possible courses of action against each other;
the officer safety doctrine requires only that the choice actu-
ally made be reasonable, even if other choices also would
have been reasonable.
Defendant argues that we should extend to this case
the rule of State v. Davis, 295 Or 227, 666 P2d 802 (1983). In

12 	State v. Foster
Davis-an officer safety case predating Bates-this court
held that police officers' concerns for their safety did not jus-
tify their entry into a defendant's motel room:
"[A] remote possibility of harm to the police officers cannot
justify a warrantless entry into the private recesses of one's
house. Absent articulable facts that evidence a compelling
and urgent need for the entry, the Oregon Constitution
demands a warrant be issued. We can require no less where
the entry, as here, is supported with less than probable
cause."
Id. at 243. Defendant contends that we should apply the
"compelling and urgent need" requirement to the curtilage of
a house as well as to the "private recesses."
We decline to do so. There is a significant difference
between crossing an open yard at the edge of a path that is
open to the public and leads to a residence, and breaching the
physical boundary established by the walls and doors of a res-
idence. We conclude that Davis merely represents a particu-
lar, and correct, application of the officer safety doctrine that
we later articulated more thoroughly in Bates. The doctrine
generally requires that an officer's response to officer safety
concerns be reasonable in light of the specifically articulated
and reasonably perceived circumstances. Davis speaks to the
reasonableness 	of one 	particular 	type 	of officer 	safety
response-holding that a warrantless entry into the interior
of a residence is not a reasonable response unless "articulable
facts * * * evidence a compelling and urgent need for the
entry." Id. We perceive no conflict between the rule of Davis
and the officer's actions here.
We conclude that the officer safety doctrine applied
in this case. Under the totality of the circumstances, Deputy
Hardison did not violate Article I, section 9, of the Oregon
Constitution when he looked through the open window of the
residence.
Defendant argues in the alternative that the officers,
even if they properly observed his illegal activity through the
window, should not have entered his house without a war-
rant. Defendant does not appear to have made that argument
either to the trial court (where he lost), or to the Court of
Appeals (where he won). We therefore decline to address it.

Cite as 347 Or 1 	13
Defendant also argues that Hardison's actions violated
the Fourth Amendment to the United States Constitution, as
made applicable to the states by the Fourteenth Amendment.
The Fourth Amendment provides, in part:
"The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated * * *."
The United States Supreme Court, however, has rec-
ognized an officer safety doctrine similar to the one that we
articulated in Bates. In a line of cases dating back to Terry v.
Ohio, 392 Or 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968), the
Court 	has 	concluded 	that 	police 	may 	perform 	limited
searches necessary for officer safety when the officers have
specific and articulable facts to support a reasonable suspi-
cion of danger to themselves or others. See, e.g., Richards v.
Wisconsin, 520 US 385, 394, 117 S Ct 1416, 137 L Ed 2d 615
(1997) (officers may conduct a "no-knock" entry pursuant to
warrant if they "have a reasonable suspicion that knocking
and announcing their presence, under the particular circum-
stances, would be dangerous"); Maryland v. Buie, 494 US
325, 327, 110 S Ct 1093, 108 L Ed 2d 276 (1990) (officers may
conduct a protective sweep of residence after arrest "if the
searching officer possessed a reasonable belief based on spe-
cific and articulable facts which, taken together with the
rational inferences from those facts, reasonably warranted
the officer in believing that the area swept harbored an indi-
vidual posing a danger to the officer or others") (alterations,
internal quotation marks, and citations omitted).
The situation here is analogous to the circumstances
addressed in Terry and its progeny. For the reasons that we
already have discussed, we conclude that the state has
offered specific and articulable facts why the deputies here
reasonably feared for their safety. We further conclude that
walking 20 feet past the front door of defendant's house to
look in an open, lighted window was a reasonable response to
the perceived danger. It follows that the deputies' actions did
not violate the Fourth Amendment.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.