§ 2.6 The Frisk

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 2.6 THE FRISK

As stated in § 2.2-2, an officer must have reasonable suspicion that a person has committed a crime in order to make a stop. Before a frisk can occur, the officer must have a separate reasonable suspicion that the person is armed and a threat to the safety of the officer or other people present. ORS 131.625(1); see State v. Bates, 304 Or 519, 527, 747 P2d 991 (1987) (applying Article I, section 9, of the Oregon Constitution). This restriction protects citizens from unwarranted physical intrusions and protects police officers from unreasonable risk of injury to themselves or others. See Ybarra v. Illinois, 444 US 85, 92-93, 100 S Ct 338, 62 L Ed 2d 238 (1979); State v. Taylor, 62 Or App 586, 590, 661 P2d 569, rev den, 295 Or 297 (1983); State v. Miner, 31 Or App 495, 500, 570 P2d 998 (1977).

To justify a frisk, the officer must articulate specific and objective safety concerns causing an immediate threat to the officer by the defendant. Generalized safety concerns by the officer are insufficient. See State v. Miglavs, 337 Or 1, 12-13, 90 P3d 607 (2004) (frisk was lawful when the defendant was dressed in gang attire, through training and experience the officers knew the gang identified by the defendant's clothing operated in the immediate vicinity and carried weapons, and one of the officers had recently removed a firearm from one of the members of that gang).

If an officer conducting a frisk feels something that the officer reasonably suspects to be a weapon, the officer is authorized to remove, examine, and take possession of the item. ORS 131.625(2); see State v. Shotwell, 22 Or App 47, 50, 537 P2d 588 (1975) (under the circumstances, the defendant's resistance to a frisk of a hard object in his pocket authorized officers to remove the object to determine whether it was a weapon).

Another well-established limitation relates to items carried by a detainee. In State v. Schellhorn, 95 Or App 297, 300-01, 769 P2d 221 (1989), the court held that an officer may seize an item possessed by a detainee (here, a heavy purse) during a lawful encounter if the officer develops specific and articulable facts that the object poses a threat to the officer's safety. However, in Schellhorn the court stated that once the officer had secured the object, it no longer posed a danger; therefore, a further search was unlawful without a warrant or exigent circumstances. Accord State v. Booker, 110 Or App 6, 820 P2d 1378 (1991).

Under the Fourth Amendment to the United States Constitution, for a frisk to be lawful, an officer must have a reasonable belief that the subject "may be armed and presently dangerous." Terry v. Ohio, 392 US 1, 30, 88 S Ct 1868, 20 L Ed 2d 889 (1968). But see Adams v. Williams, 407 US 143, 146, 92 S Ct 1921, 32 L Ed 2d 612 (1972) ("So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose." (footnote omitted; emphasis added)).

COMMENT

The 1997 amendment to ORS 131.625, changing from "armed and presently dangerous" to "armed and dangerous," was intended to make clear that Oregon police officers have the same authority to frisk for officer-safety reasons as recognized under federal law and that Oregon law is not more restrictive in this area. See Or Laws 1997, ch 866, § 3.

In State v. Matthys, 106 Or App 276, 808 P2d 94, rev den, 311 Or 433 (1991), the court held that a frisk was not justified because the officer's generalized concern for safety did not amount to reasonable suspicion that the defendants were armed and dangerous. The facts that the defendants were "somewhat agitated," "becoming more aggressive," "tense," and "terse" were not specific, articulable facts giving rise to a reasonable suspicion that the defendants were presently armed and dangerous. Matthys, 106 Or App at 279, 283. However, in State v. Starkweather, 98 Or App 7, 9, 777 P2d 418 (1989), after a high-speed chase, finding scales...