808 July 29, 2026 No. 714
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
MARK ARRON CASTIMORE,
Defendant-Appellant.
Marion County Circuit Court
22CR48176; A183783
Daniel J. Wren, Judge.
Argued and submitted November 25, 2025.
Anna R. Johnson, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
Julia Taylor, Assistant Attorney General, argued the
cause for respondent. On the brief were Dan Rayfield,
Attorney General, Benjamin Gutman, Solicitor General and
Robert C. Hansler, Assistant Attorney General.
Before Ortega, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
Cite as 351 Or App 808 (2026) 809
HELLMAN, J.
Defendant appeals from a judgment convicting
him of felon in possession of a firearm, ORS 166.270(1).
Defendant’s conviction was the result of a conditional guilty plea, which reserved the right to challenge the trial court’s denial of his motion to suppress a firearm that was seized for the duration of a traffic stop. On appeal, defendant assigns error to the trial court’s ruling on his motion to suppress, arguing that the temporary seizure of a loaded firearm from
the center console of his car was not justified by the officersafety exception to the warrant requirement in Article I,
section 9, of the Oregon Constitution. The officer removed
the loaded firearm after defendant announced that it was
in the same center console as documents requested by the
officer, which meant that the weapon would necessarily be
handled during the stop. We narrowly conclude that, under
the circumstances specific to this case, the officer’s safety concerns particularized to the loaded firearm reasonably
justified his temporary seizure of the weapon for the duration of the traffic investigation. Therefore, we affirm.
I. FACTS
“We review the denial of a motion to suppress for
legal error and are bound by the trial court’s explicit and
implicit factual findings if evidence in the record supports them.” State v. Bailey, 307 Or App 782, 783, 479 P3d 304
(2020).
With that standard in mind, we state the undisputed and underlying facts, which are drawn from the officer’s bodycam footage of the stop and the testimony offered
at the motion to suppress hearing. An officer, who had a
civilian ride-along in his patrol car, stopped defendant for driving without a seatbelt. A passenger sat in the front seat of the vehicle. The officer asked defendant for his driver’s license and the vehicle registration. After handing the officer his license, defendant proactively informed the officer
that the passenger’s 9mm firearm was located in the center
console, which defendant stated he would “have to open” to
obtain the registration. The passenger indicated that she
would open the console because the firearm was hers. The
810 State v. Castimore
officer responded, “because there’s a firearm in there, I’m
just going to seize it for the duration of the stop and * * * give it right back.” The passenger replied that that was “fine.”
The officer opened the passenger door, reached into the car, opened the console, and removed the gun. During that process, the passenger informed the officer that the firearm was loaded. Defendant then retrieved the requested documentation from the console and handed it to the officer. The officer returned to his patrol car and processed the documents. At
the end of the traffic stop, and about ten minutes after the officer took the firearm, he returned it to the passenger after first unloading it. Throughout the encounter, defendant and
the passenger were cooperative, and the atmosphere was
relaxed and conversational.
The officer later discovered that defendant was a
convicted felon, which led to defendant being charged for
felon in possession of a firearm. Defendant moved to suppress evidence of the firearm, including officer testimony
and the bodycam video, on the basis that the officer’s temporary seizure of the firearm ran afoul of Article I, section 9.
The trial court held a hearing on the motion to suppress. The officer and the passenger testified as to the above events. The officer also provided testimony on his safety concerns that motivated his seizure of the firearm. For example, he testified that knowing that there is a firearm within reach of a vehicle driver or passenger puts him on “high
alert,” because he “know[s] that is a deadly weapon that can cause me serious physical injury or death as well as potentially others,” and seizing the firearm therefore protects
his “safety as well as their safety.” When pressed on crossexamination, the officer agreed that “nothing [defendant]
did” caused him to feel unsafe, and that the “sole reason” for his safety concerns was the presence of the firearm “[w]here people would have to be digging for their documents.”
Noting that “the officer has the ability to make sure
that they’re safe when they make a stop,” the court denied
defendant’s motion to suppress based on the officer-safety
exception to the warrant requirement. In an oral ruling,
the trial court reasoned that, “no matter how cordial and
how nice” defendant and the passenger were during the
Cite as 351 Or App 808 (2026) 811
encounter, the presence of a known firearm in the center
console gave rise to reasonable officer-safety concerns and
that therefore “the officer had the ability to seize [the firearm] for the duration [of the stop] based upon * * * the totality of the circumstances[.]”
Defendant entered a conditional guilty plea, reserving the right to appeal the court’s denial of his motion to
suppress. The court entered a judgment of conviction for
felon in possession of a firearm, and this appeal followed.
II. ANALYSIS
A. The Officer-Safety Doctrine
Article I, section 9, protects citizens “against unreasonable search, or seizure.” Warrantless searches and seizures are therefore presumptively unreasonable and must
be justified by a recognized exception to the warrant requirement. Bailey, 307 Or App at 788.
One of those exceptions is the officer-safety exception, which recognizes that “legitimate officer safety concerns” may justify a warrantless search or seizure. State v. Madden, 363 Or 703, 712, 427 P3d 157 (2018). As first articulated in State v. Bates, the officer-safety doctrine permits an officer
“to take reasonable steps to protect himself or others if,
during the course of a lawful encounter with a citizen, the
officer develops a reasonable suspicion, based upon specific
and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to
others then present.”
304 Or 519, 524, 747 P2d 991 (1987).
The officer-safety exception imposes a two-part burden on the state. State v. Ramirez, 305 Or App 195, 205, 468 P3d 1006 (2020). In a typical officer-safety case, the state must first establish that, based on “specific and articulable facts,” an officer had a subjective reasonable suspicion that a defendant posed an immediate threat of serious physical injury. Id. Second, the state must prove that, “under
the totality of the circumstances, (1) the officer’s subjective safety concerns were objectively reasonable, and that (2) the 812 State v. Castimore
officer’s response to the safety concerns was, itself, objectively reasonable.” Id. The reasonableness of an officer’s
safety measures depends on “both the nature and extent of
the perceived dangerousness as well as the degree of intrusion or restraint.” State v. Campbell, 166 Or App 31, 36, 999 P2d 46 (2000).
The bulk of our officer-safety case law, including
that which defendant relies on in his briefing, involves a
defendant’s challenge to a search or seizure of their person or an exploratory search for weapons within areas or possessions in their vicinity. See, e.g., State v. Keck, 328 Or App 296, 307-08, 537 P3d 163 (2023) (addressing challenge to
handcuffing of the defendant); City of Portland v. Weigel, 276 Or App 342, 345-46, 367 P3d 541 (2016) (same); Bailey, 307
Or App at 795 (addressing challenge to patdown search of
the defendant); State v. Smith, 277 Or App 298, 310, 373 P3d 1089, rev den, 360 Or 401 (2016) (same); State v. Ehly, 317 Or 66, 83, 854 P2d 421 (1993) (addressing challenge to search of bag in the defendant’s possession); State v. Dyer, 157 Or App 326, 331-33, 970 P2d 249 (1998) (addressing challenge to
search of vehicle in the defendant’s vicinity). In such cases, a defendant and their potential access to often undisclosed
weapons is the safety threat that law enforcement’s constitutional intrusions seek to mitigate. Therefore, the standard for determining whether an officer’s intrusions are justified hinges upon whether they had a reasonable suspicion that
the defendant posed an immediate threat of serious injury.
That is why courts typically consider “evidence about [a]
defendant’s demeanor, conduct, or status” in evaluating the
reasonableness of an officer’s safety concerns. Smith, 277 Or App at 303.
That is not the situation here. Defendant neither
challenges a search or seizure of his person, nor an exploratory search of his belongings for additional, unknown
weapons. Instead, defendant challenges only the temporary
seizure of an announced firearm from a disclosed location, a location that would require defendant to handle the loaded
firearm, for the duration of the traffic stop.
That constellation of unique facts places this
case somewhat outside the traditional contours of our
Cite as 351 Or App 808 (2026) 813
officer-safety case law, because here, the officer’s taken
safety measures relate only to the danger posed by the
loaded firearm that defendant or the passenger would have
had to handle in order to obtain documents, not the danger
posed by defendant or the passenger based on their conduct.
Further, based on the unique facts of this case, the appropriate inquiry is whether articulable and particularized facts
as to the loaded firearm, under the circumstances specific to the stop, justified the officer’s concerns and related actions. Regardless of a safety threat’s origin, the touchstone of the officer-safety doctrine has always been reasonableness: the
reasonableness of an officer’s safety concerns and the reasonableness of their response.
Broadly speaking, the officer-safety doctrine authorizes law enforcement to take reasonable precautionary
measures in response to confronted safety threats other
than those directly posed by a defendant. See Bates, 304 Or
at 523 (explaining that “police officers are entitled to take steps reasonably necessary to their safety”); State v. Payne, 310 Or App 672, 683, 487 P3d 413, rev den, 368 Or 514 (2021) (noting that we “have recognized * * * 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” (emphasis added)); see also State v.
Foster, 347 Or 1, 9, 217 P3d 168 (2009) (“[I]t is sufficient that the officers be able to point to specific and articulable facts * * * that would reasonably create a fear for the safety of
the officers or others from an imminent threat to them of
serious physical injury.”). That is because Article I, section 9, “circumscribes officer safety measures in the context of a stop by principles of reasonableness.” Campbell, 166 Or App
at 36 (emphasis added). Therefore, the relevant question is
whether the “totality of the circumstances confronting the
officer * * * present[s] an objectively reasonable safety concern” that justifies the particular safety measures taken,
“regardless of the fact that [the] defendant may not have
been responsible for those circumstances.” Payne, 310 Or
App at 682. In that way, the various components of the
officer-safety test dovetail because “the kind and magnitude of the threat that an officer reasonably perceives will largely 814 State v. Castimore
determine whether a given precaution taken in response to
it was reasonable.” Madden, 363 Or at 714.
Three cases help illustrate that point. First, in
State v. Riley, the Supreme Court upheld an officer’s seizure of a firearm from under the driver’s seat where the defendant was outside but “still near” the vehicle, the defendant did not attempt to retrieve the firearm, and the officer testified that he did not fear injury by the firearm any “more
than you normally would.” 240 Or 521, 524-25, 402 P2d 741
(1965). The Supreme Court reasoned that the officer “should
be permitted to take every reasonable precaution to safeguard his life” during an investigation which, under those
circumstances, included seizure of the firearm.1 Id. at 525. Second, in Foster, the Supreme Court upheld an officer’s positioning of himself under and looking into a window of a residence because those actions were “within the range of reasonable precautions” that the officer could take in response to his reasonable suspicion that the residence’s occupants
posed an immediate threat of serious injury. 347 Or at 9-11. And third, in Campbell, we held that an officer went beyond
the permissible scope of Article I, section 9, not by seizing a cigarette pack pursuant to a frisk of the defendant, but by
opening that pack because the record “reveal[ed] no perception by the officer that the contents of the cigarette pack represented a potential danger.” 166 Or App at 35-37 (emphasis added). The above cases demonstrate that, in the face of dangers that varied widely in source and degree, Oregon
appellate courts have consistently assessed whether, under
the totality of the circumstances, specific and articulable
facts rendered reasonable an officer’s safety concerns as to an identified threat and whether the officer’s response to the threat was also reasonable.
1
Defendant disputes the applicability of Riley because it predates the formal announcement of the officer-safety doctrine in Bates. We conclude that Riley represents a proper application of the officer-safety doctrine, which is supported by the fact that the Supreme Court expressly adopted Riley’s reasoning in Bates. 304 Or at 523-24. We therefore find Riley to serve as a helpful and appropriate comparison when assessing the reasonableness of the officer’s safety concerns and resulting seizure of the firearm in this case. See also Foster, 347 Or at 12 (characterizing a separate pre-Bates officer-safety case as a “particular, and correct, application of the officer safety doctrine that [was] later articulated more thoroughly in Bates” and as “speak[ing] to the reasonableness of one particular type of officer safety response”).
Cite as 351 Or App 808 (2026) 815
Applying those principles here, we focus our officersafety analysis on the reasonableness of the perceived danger and the reasonableness of the officer’s actions taken in relation to the identified safety threat: the firearm itself. We therefore evaluate (1) whether the officer had a subjectively reasonable belief that the firearm posed an immediate threat of serious injury based on specific, articulable facts, (2) whether that belief was also objectively reasonable under the totality of the circumstances, and (3) whether the officer reasonably responded to the threat presented by the firearm. In doing so, we remain cognizant of the well-established rule that the mere “presence of a weapon is a fact that may support a concern for officer safety,” State v. Wilson, 283 Or App 823, 829, 390 P3d 1114, rev den, 361 Or 801 (2017) (internal quotation marks omitted), but “does not, per se, render officer-safety concerns objectively reasonable,” Bailey, 307 Or App at 794.
Using that framework, we next consider defendant’s
arguments against the applicability of the officer-safety doctrine in this case.
B. Application
1. The officer had a subjectively reasonable belief that the
firearm posed an immediate threat of serious injury.
Defendant first argues that the state failed to prove
that the officer had a subjectively reasonable suspicion that defendant posed an immediate threat because the officer “testified that nothing about defendant made him feel
unsafe.” But as we have already explained, the relevant
question in this case is whether the officer had a subjective belief, based on articulable and particularized facts, that the loaded firearm posed an immediate threat of serious injury.
We conclude that the officer’s testimony at the
motion to suppress hearing and his conduct during the traffic stop demonstrate that the officer subjectively believed that the loaded firearm presented a threat of immediate bodily
harm. First, the officer testified that, in general, knowing that a firearm is within reach of a car driver or passenger
puts him on “high alert” during an investigation because he
“know[s] that is a deadly weapon that can cause * * * serious physical injury or death” to himself and others, including a 816 State v. Castimore
civilian ride-along, the driver, and the passenger. Second,
on cross-examination, he articulated the bases for his fears that were particularized to the firearm in this case:
“Q. [O]ther than [defendant] stating there was a
weapon in the vehicle, you didn’t have any concerns for
your safety, is that correct?
“[Officer]. My concern was that the documents are
where the firearm was located at.
“Q. Of course, but aside from the presence of a firearm, nothing [defendant] did caused you to feel unsafe.
“[Officer]. No.
“Q. So sole reason for any safety concerns, in your
opinion, was the presence of the weapon.
“[Officer]. Where people would have to be digging for
their documents, yes—
“Q. So within reach?
“[Officer]. Yes.”
(Emphases added.) Third, the bodycam video substantiates
the officer’s articulated fears. It shows that after defendant disclosed the presence of the firearm in the console that he had “to open to grab the paperwork,” the officer stated that, “because there’s a firearm in there, I’m just going to seize it for the duration of the stop.” (Emphasis added.) Fourth, the officer returned the firearm only after first unloading it and informing defendant and the passenger that, “I don’t like to hand guns back loaded.” That further supports the conclusion that, before unloading the firearm, the officer subjectively believed that it posed an immediate safety risk.
In contrast to Campbell, where the record did not
support an officer’s perception that the contents of a searched cigarette pack posed a potential danger, the above evidence
demonstrates that the officer subjectively believed that the seized firearm, a deadly weapon, posed an immediate threat
of serious physical injury to himself and others based on
facts particular to the traffic stop. Those facts include the presence of an unsecured firearm, which could potentially be loaded, that was known to be located not only within reach
of defendant and the passenger, but in a place such that it
Cite as 351 Or App 808 (2026) 817
would necessarily be handled during the encounter, and the
presence of a civilian ride-along whose safety was implicated along with the safety of the officer, defendant, and the passenger. Thus, the state established that the officer subjectively perceived an immediate threat of serious injury with
particularity.
2. The officer’s belief was objectively reasonable.
We now turn to the question of whether the officer’s
subjective belief with regard to the danger presented by the loaded firearm was objectively reasonable, under the totality of the circumstances as they “reasonably appeared at the time” that he decided to seize the firearm. Madden, 363 Or
at 713. Defendant argues that because the state did not provide “any facts that supported a suspicion that defendant
posed a threat to [the officer] or others present” and because the mere presence of a gun cannot support an objectively reasonable officer-safety concern, the officer’s fears were necessarily unreasonable. But again, the focus of our analysis in this narrow context is whether the officer reasonably feared for his and others’ safety based on facts specific and articulable to the firearm, not defendant. Particularized facts
about defendant are among the circumstances that we may
consider in evaluating the objective reasonableness of the
officer’s safety concerns as to the firearm, but the absence of threatening conduct on the part of defendant does not automatically render the officer’s concerns underlying the temporary seizure of the firearm unreasonable. Cf. Smith, 277
Or App at 305 (noting that “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” (emphasis added)).
In addition, we disagree with defendant’s characterization that the sole basis of the officer’s safety concerns boiled down to the mere presence of the firearm. Rather, we conclude that the totality of the circumstances particular to the firearm in this encounter reasonably supported the officer’s subjective suspicion that the deadly weapon presented an immediate threat of serious bodily injury. The key facts include the known presence of a firearm, which could reasonably be
818 State v. Castimore
assumed to be loaded at the time that the officer decided to seize it, and which was in an easily accessible location alongside requested documentation and therefore necessitated handling during the stop. Cf. Bates, 304 Or at 526-27 (concluding that a search of a bag was unconstitutional because there was no evidence that the officers “thought the [bag] might be a
weapon, or a case designed to hold a weapon”). The inevitable manipulation of a deadly weapon reasonably threatened the
safety of all those present within shooting range, including defendant, the passenger, the officer, and the civilian ridealong even, as the trial court observed, “in the most cordial of circumstances,” including by way of an accidental discharge.
In sum, under the particular circumstances confronting the officer, we conclude that the safety concerns
about the firearm that was positioned in the same console
as the requested documents were “reasonable * * * to a standard that society views as objectively reasonable.” State v. Whitlock, 334 Or App 107, 110, 554 P3d 825 (2024) (brackets
omitted). We emphasize that our conclusion here does not
amount to a per se rule that the presence of a weapon alone
is sufficient to legitimize officer-safety concerns.
3. The officer reasonably responded to the threat presented by the firearm.
Finally, we conclude that the officer’s response to
the safety threat was objectively reasonable. We assess the
reasonableness of an officer’s actions “against two principles—that officer safety measures must be proportionate
and that police officers must have latitude in deciding how
to protect themselves.” Madden, 363 Or at 719-20.
The officer’s temporary seizure of the firearm for the
duration of the traffic stop, which lasted approximately ten minutes, did not violate Article I, section 9, because, akin to the seizure of the gun from the car in Riley, it constituted a reasonable safety precaution that was proportionate in nature and scope to the danger posed by the loaded firearm. Before
effectuating the seizure, the officer informed defendant and the passenger that he would “just * * * seize [the firearm] for the duration of the stop and * * * give it right back,” and he made good on his word. His unloading of the firearm prior
Cite as 351 Or App 808 (2026) 819
to returning it was also reasonable, as that action mitigated the danger intrinsic to the handling of a loaded firearm, even under otherwise amicable circumstances. And although the
officer did not confirm whether the firearm was loaded or
not before seizing it, his actions reasonably responded to the safety risk before him. See State v. Zumbrum, 221 Or App
362, 366, 189 P3d 1235 (2008) (noting that appellate courts
should not “uncharitably second-guess the split-second decisions of officers who often work under dangerous, potentially deadly circumstances” (internal quotation marks omitted)).
Indeed, we have upheld far greater constitutional
intrusions upon cooperative defendants, including their handcuffing, where a deadly weapon was accessible but would not
necessarily even be handled during the police-citizen encounter. See, e.g., Keck, 238 Or App at 307 (concluding that safety concerns justified the handcuffing of a cooperative defendant during a traffic stop prior to a patdown search because the
defendant “still had [a] knife on his person”); Weigel, 276 Or App 342-46 (concluding that safety concerns permitted the
handcuffing of an intoxicated but compliant defendant who
had a gun in his front pocket, because that constituted “a
reasonable precautionary measure * * * to guard against the
possibility of the defendant accessing and discharging his
weapon”). That further persuades us that the officer’s temporary seizure of the firearm here was objectively reasonable.
In conclusion, the officer-safety exception is “a rule
of necessity that enables officers to take reasonable measures to carry out lawful police activity.” State v. Kreis, 365 Or 659, 676, 451 P3d 954 (2019). We narrowly hold that the officer’s temporary seizure of a loaded firearm that would unavoidably be manipulated during the traffic stop squarely falls within that exception to the warrant requirement. Therefore, the trial court did not err in denying defendant’s motion to suppress.2
Affirmed.
2
Defendant also argues on appeal that, to the extent that the trial court denied the motion to suppress based on the consent exception to the warrant requirement, that ruling constituted error because defendant and the passenger did not voluntarily consent to the seizure of the firearm. We need not address the consent issue because the state concedes that the court denied the motion primarily on officersafety grounds and does not present arguments on consent in this appeal, and because we have already concluded that the officer-safety exception applies.