On September 30, 2015, the Oregon Court of Appeals issued an opinion regarding the post-arrest search of a defendant’s pockets. In State v. Castillo-Lima, 274 Or App 67 (2015), a police officer responded to a report of a fight outside a bar involving at least 7 people. By the time the officer arrived, the fight had dispersed.
Later the same evening, however, the officer received a report from a witness that the people involved in the fight had returned to the bar. The officer went with a police canine unit to the area identified by the witness and heard shouting nearby. As he approached the area of the shouting, the officer saw Defendant, a man he recognized from earlier in the evening. The officer told Defendant to “come here.” Defendant responded that he “didn’t do anything.” The officer announced that he was a police officer and instructed Defendant to get down on the ground. Defendant refused, even after the officer told him to get down at least 10 times. As the officer approached Defendant he told him to get down, or the police dog would bite him. At that point, Defendant got on his knees and raised his hands above his head. As he did so, the officer noticed the butt of a gun in Defendant’s pants. The officer pulled Defendant to the ground, removed the gun, and threw it behind them. In doing so, the officer realized the gun was not real, but a simulation of a real gun.
The officer called for backup, which arrived along with a witness to the earlier fight. The witness indicated that Defendant was one of the people involved in the fight. Defendant was taken into custody and his pockets were searched, revealing a bag of cocaine.
Before trial, Defendant moved to suppress the evidence of the cocaine found in his pockets. The trial court denied the motion. Defendant appealed, arguing that the officer was not justified in performing a search incident to his arrest because it would be unreasonable to believe he was carrying a weapon or means of escape, as the gun that was found was fake. The Court of Appeals disagreed, finding that because the officer was called because of a fight and found Defendant, who was uncooperative, in a highly charged situation, searching Defendant’s pockets was a reasonable officer-safety measure.
The trial court’s rulings were affirmed.