FILED: November 6, 2002

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

JESSICA MARIE GAIL MARSTON,

Appellant.

00C46963; A113037

Appeal from Circuit Court, Marion County.

Richard D. Barber, Judge.

On appellant's and respondent's stipulated motion to reverse and remand filed September 12, 2002.

Robin A. Jones, Deputy Public Defender, and Julie A. Smith, Assistant Attorney General, for motion.

Before Brewer, Presiding Judge, and Wollheim and Kistler, Judges.

PER CURIAM

Reversed and remanded for further proceedings.

PER CURIAM

Defendant appeals from her judgment of convictions for delivery and possession of a controlled substance. ORS 475.992. She assigns error to the trial court's denial of her motion to suppress evidence obtained pursuant to a warrantless search of defendant following a traffic stop of the vehicle in which defendant was a passenger. At the suppression hearing, the police officer testified that, based on defendant's behavior, he did not have any concern regarding his safety but nonetheless conducted a pat-down for weapons. During that search the officer discovered the controlled substance.

On appeal defendant contends that the trial court erred in ruling that the officer was justified in searching defendant for officer-safety reasons and that the officer had subjective probable cause to believe that defendant committed a crime. The state concedes that the pat-down search was not justified for officer safety reasons because the officer did not know specific facts creating a reasonable suspicion of an immediate threat of serious physical injury. State v. Walker, 181 Or App 548, 553, 47 P3d 65 (2002). The state also concedes that the officer's testimony did not support a finding that the officer subjectively believed that defendant committed a crime. State v. Getzelman, 178 Or App 591, 595-97, 39 P3d 195, rev den, 334 Or 289 (2002).

We accept the state's concessions. The trial court erred in denying the motion to suppress; we reverse the judgment and remand this case to the trial court for further proceedings.

Reversed and remanded for further proceedings.


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