OR: Late night stop of apparently intoxicated driver permits officer to ask about weapons

During a stop for suspected DUI late at night, the officer can legitimately ask the defendant whether he is armed. State v. Miller, 363 Ore. 374, 2018 Ore. LEXIS 602 (July 26, 2018):

The issue in this criminal case is whether a law enforcement officer, who was lawfully investigating whether defendant had been driving under the influence of intoxicants (DUII), unlawfully extended the investigatory stop by asking if defendant was carrying a firearm. In response to that question, defendant disclosed that he was carrying a knife, which led to his conviction for carrying a concealed weapon, ORS 166.240(1). Defendant contends that the officer’s question unlawfully extended the stop because, the officer lacked an objectively reasonable, circumstance-specific perception that defendant posed a danger, as required by Article I, section 9, of the Oregon Constitution. See State v. Jimenez, 357 Ore. 417, 353 P3d 1227 (2015) (describing standard). The Court of Appeals agreed with defendant and reversed his conviction, emphasizing that nothing about defendant’s conduct during the encounter gave the officer a reason to be concerned for his safety.

We allowed the state’s petition for review of that decision and now reverse. We held in Jimenez that the constitutional standard for an officer to ask a lawfully detained citizen about weapons is less demanding than the particularized reasonable suspicion that Article I, section 9, requires before the officer may search the citizen for weapons. 357 Ore. at 427-28. Article I, section 9, does not prohibit law enforcement officers from asking about the presence of weapons during a lawful stop if (1) “the officer perceived a circumstance-specific danger and decided that an inquiry about weapons was necessary to address that danger;” and (2) “the officer’s perception and decision were objectively reasonable.” Id. at 430. We conclude that the officer in this case perceived a circumstance-specific of danger, within the meaning of Jimenez, based on his explanation of the risk of performing late-night field sobriety tests on a person whom the officer reasonably suspected was intoxicated. We also conclude that the state met its burden to prove that the officer’s perception of danger and decision that a question about firearms was necessary were objectively reasonable.