OR: No RS for frisk; defendant made no furtive movements and asked why the need for a search

The officer lacked reasonable suspicion that defendant was armed to justify a frisk. Defendant, inter alia, made no furtive movements, and asked why the officers had to search him and his demeanor changed when it came up. Nothing here indicates risk of a weapon. Reversed. State v. Rodriguez-Perez, 2014 Ore. App. LEXIS 433 (April 9, 2014)*:

Gryphon testified that he was concerned by the change in defendant’s demeanor at the mention of weapons, specifically that defendant became “very agitated” after having been calm only moments before. Gryphon testified that the following facts led him to be concerned that defendant might be armed: (1) defendant was staring at Ockunzzi’s interaction with his brother; (2) defendant did not answer Gryphon’s questions and would not make eye contact with him; (3) defendant was glancing around and looked over his shoulder; (4) defendant took steps away from Gryphon; (5) defendant asked Gryphon why the officers had to search them; and (6) defendant just stared at Gryphon when Gryphon asked whether defendant was armed. Ockunzzi testified that the brother’s prior concealed-firearm arrest made him think that either man might be armed.

Note: The usual scenario is that the defendant was excessively nervous and seemed agitated or put his hands in his pockets. Here, there’s really nothing, and every thing the defendant did was consistent with innocence. He watched the officer hassling his brother; he didn’t answer questions (which he had a right to do); he stepped back because the officer was going to invade his personal space; he asked why they had to be searched (which he had a right to do).