OR: Possession of a long gun in the woods doesn’t justify a stop and frisk for another weapon without RS

A Forest Service officer came upon defendant and others probably target shooting with rifles. He told them to secure the weapons and they did. Defendant was completely cooperative and nothing suggested that he was otherwise armed. One long gun doesn’t mean that defendant was armed with a pistol of some kind. The facts strongly suggested otherwise. The pat frisk of defendant’s person that revealed methamphetamine is suppressed. State v. Smith, 277 Ore. App. 298, 2016 Ore. App. LEXIS 408 (April 6, 2016):

Scott had a generalized safety concern based on the size of the group, the remoteness of the location, and the absence of a backup officer. But where a defendant cooperates with police, in the absence of any threatening behavior by the defendant, generalized safety concerns (in other words, facts that are not particular to the defendant) are insufficient to justify an officer safety search. See Rodriguez-Perez, 262 Ore. App. at 215-16 (officer safety search was not permissible where “[n]either defendant’s demeanor nor his physical actions *** would support a reasonable suspicion that defendant posed an immediate threat of serious physical injury,” and the defendant made no “aggressive, hostile, or threatening movements,” the defendant made no “threatening remarks,” the officer had no prior knowledge whether the defendant had a violent history or reputation, and the defendant made no “furtive movements such as reaching into his pockets or clothing as if to retrieve a weapon”); State v. Steffens, 250 Ore. App. 742, 749, 752-54, 282 P3d 888 (2012) (extending a traffic stop was not justified on officer safety grounds where the “defendant had recently been arrested for possession of a concealed weapon,” the “defendant appeared to have lied about the number of times he had been arrested,” and gang-related crime was common in the neighborhood, but the defendant did not appear to be in a gang, was “relaxed, unconcerned, and cooperative,” made no furtive movements, and “had no known history of violence against police officers”); State v. Amell, 230 Ore. App. 336, 341, 345, 215 P3d 910 (2009) (patdown not justified on officer safety grounds where, despite the officer’s observation of a “digging movement” by the defendant—which the officer believed to be consistent with retrieving a weapon—and the defendant’s lie about whether his license was suspended, the “defendant was cooperative at all times, did not show hostility, and made no suspicious movements during his interaction with the police”); State v. Dyer, 157 Ore. App. 326, 332-33, 970 P2d 249 (1998) (search of the defendant’s car was not justified on officer safety grounds because, “[w]hile [the officer] had some generalized safety concerns because of [defendant’s] mode of transportation, the location of the stop and his suspicion that defendant’s car might contain a weapon, his description of defendant’s behavior during the encounter [which was cooperative and cheerful] indicates that he had no specific safety concerns based on defendant’s behavior”); State v. Haney, 153 Ore. App. 642, 647, 958 P2d 192 (1998) (search of the defendant’s bag was not justified on officer safety grounds, pointing out that “[t]here was *** no evidence that defendant, who had been cooperative, made the officers fear for their safety”); State v. Moreno, 150 Ore. App. 306, 308-10, 946 P2d 317 (1997) (patdown of the defendant was not justified where the defendant, who spoke limited English, stared at the officers and was unusually slow to remove his hands from his pockets when asked by a police officer, because there were “no articulable facts that demonstrate[ d] objectively, such as gestures or threats, that the officers were in danger”).

The state and the dissent suggest that the fact that defendant and his companions were armed with rifles when first encountered by Scott is sufficient evidence to foster a reasonable suspicion that defendant was carrying a concealed weapon and, thus, posed an immediate threat to Scott. We disagree. That inference—that persons who engage in target shooting with rifles are likely to carry other concealed weapons—is nothing more than speculation. The inference is not a matter of common knowledge. It was not established by proof at the hearing. Scott did not testify that, in his experience and training, target shooters are usually well-armed. Because that inference is speculative, it is not a “specific and articulable fact” that suffices under Bates to establish “an immediate threat of serious injury.”