OR: RS as to the car extends to passengers otherwise doing nothing

Reasonable suspicion as to the car can extend to a passenger doing nothing. This is akin to a protective sweep of a house to protect against unknown dangers. State v. Payne, 310 Ore. App. 672, 2021 Ore. App. LEXIS 500 (Apr. 14, 2021):

Moreover, accepting defendant’s approach—that, to detain a passenger, an officer’s safety concerns must arise specifically out of that passenger’s conduct—runs afoul of the rationale rejecting blanket rules in these contexts. See State v. Jimenez, 357 Ore. 417, 428, 353 P3d 1227 (2015) (“Although Article I, section 9, does not permit a blanket assumption that all encounters between police officers and detained individuals pose dangers that permit routine weapons inquiries, it also does not per se preclude all such inquiries.”). Indeed, it is this same rationale that protects passengers of a traffic stop from an automatic seizure in the first place: the inquiry is based on the totality of the specific circumstances of the stop. See Stevens, 364 Ore. at 100. Being a “passenger” is not a talisman protecting an ability to walk away from an otherwise dangerous situation.

We have recognized other circumstances where police may have a reasonable circumstance-based fear for their safety even if there is no articulable fact specific to the defendant himself. For example, when officers enter a residence to execute a warrant and other occupants are present—essentially “passengers” in the house—officer-safety concerns permit them to detain the occupants long enough to ensure both the officers’ and the occupants’ safety. State v. Swibies, 183 Ore. App. 460, 467, 53 P3d 447 (2002); State v. Barnett, 132 Ore. App. 520, 524, 888 P2d 1064 (1995); see also State v. Fair, 353 Ore. 588, 609, 302 P3d 417 (2013) (allowing, in certain circumstances, the stop and temporary detention of a potential material witness to a crime).

In Madden, the Supreme Court applied this rationale to the question of whether police could seize a person who was sitting in a parked car outside a “drug house” where police had arrived to execute a warrant. 363 Ore. at 716. Despite having no particularized information about the defendant, the officers knew that the other person in the car was a known drug user, and the car’s proximity to the house gave police a reasonable belief that it had “some connection” to the house. Id. Those facts, coupled with the officers’ need to quickly secure the scene before entering the drug house where the number of occupants or weapons was unknown, amounted to a legitimate officer-safety concern justifying the temporary detention of the defendant until the risk was mitigated. Id.

Having concluded that the officer here had an objectively reasonable safety concern under the totality of the circumstances, we turn to whether the protective measures taken were reasonable. …

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