Full Opinion

658 November 12, 2026 No. 1097 IN THE COURT OF APPEALS OF THE STATE OF OREGON CITY OF PORTLAND, Plaintiff-Respondent, v. VALERIA GUADALUPE PONCE-MURILLO, aka Valeria Guadalupe Ponce Murrilo, Defendant-Appellant. Multnomah County Circuit Court 24CR14306; A185759 Steffan Alexander, Judge. Argued and submitted September 9, 2026. James Brewer, 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. Fallon Niedrist de Guzman argued the cause and filed the brief for respondent. Before Joyce, Presiding Judge, O’Connor, Judge, and DeVore, Senior Judge. JOYCE, P. J. Affirmed. Cite as 354 Or App 658 (2026) 659 JOYCE, P. J. Defendant appeals from a judgment of conviction for possession of a loaded firearm in a public place, Portland City Code (PCC) 14A.60.010. In her first assignment of error, defendant challenges the trial court’s denial of her demur- rer to the charge of possession of a loaded firearm in a public place. She argues that PCC 14A.60.010 is unconstitutional on its face and that this court’s decision in City of Portland v. Sottile, 336 Or App 741, 561 P3d 1159 (2024), rev den, 374 Or 372 (2025), cert den, ___ US ___, ___ S Ct ___, 223 L Ed 2d 574 (2026), is plainly wrong in holding otherwise. In her second assignment of error, defendant challenges the denial of her pretrial motion to suppress evidence discovered by removing the magazine from defendant’s firearm, argu- ing that the officer’s removal of the magazine constituted a warrantless search that was not justified by concerns for officer safety. We disagree that Sottile is plainly wrong and conclude that officer-safety concerns justified removing the magazine. We therefore affirm. We begin with defendant’s facial challenge to PCC 14A.60.010, which prohibits possessing a loaded fire- arm in public. In a demurrer, defendant argued that PCC 14A.60.010 “unconstitutionally restricts a Portlander’s Second Amendment right.” As we have previously held, PCC 14A.060.010 is not facially unconstitutional under the Second Amendment. City of Portland v. Ali, 339 Or App 674, 675, 569 P3d 717, rev den, 374 Or 372 (2025), cert den, ___ US ___, ___ S Ct ___, 224 L Ed 2d 291 (2026) (holding that the defendant’s contention that PCC 14A.60.010 is facially unconstitutional under the Second Amendment fails under Sottile and State v. Vinge, 337 Or App 621, 564 P3d 186, rev den, 374 Or 373 (2025)). Defendant’s arguments that Sottile is plainly wrong are not well taken. Therefore, the trial court correctly denied defendant’s demurrer to the pos- session of a loaded firearm charge. We turn to the denial of defendant’s motion to sup- press, which we review for legal error while being “bound by the trial court’s explicit and implicit factual findings if evi- dence in the record supports them.” State v. Bailey, 307 Or App 782, 783, 479 P3d 304 (2020) (internal quotation marks 660 City of Portland v. Ponce-Murillo omitted). We recount the facts in light of that standard of review. Officers Costanzo and Raphael, who were part of a retail theft task force, received information regarding a theft, including a description of the car in which the sus- pect had driven away. The officers found and stopped a car matching that description. Defendant was driving the car, and the officers learned during the stop that defendant did not have a valid driver’s license. Rapheal elected to have defendant’s car—which was blocking a lane of traffic— towed. While waiting for the tow truck to arrive, Costanzo inventoried defendant’s car. During the inventory search, Costanzo located an open crossbody bag directly behind the driver’s seat. Costanzo looked inside the bag and saw the handle of a handgun. He removed the handgun from the bag and then immediately “rendered the firearm safe, by removing the magazine which held 9mm rounds, followed by locking the slide to the rear, which revealed an empty chamber.” Costanzo testified that he removed the magazine “to check the status of the weapon and make sure it was safe for handling.” The state charged defendant with unlawful posses- sion of a firearm, possession of a loaded firearm under PCC 14A.60.010, and third-degree theft. Defendant moved to sup- press, arguing, as relevant to this appeal, that Costanzo’s removal of the magazine from defendant’s firearm was an illegal search that was not justified by any exception to the warrant requirement. The trial court denied defendant’s motion, explaining that “I don’t find that that is a search by simply rendering a gun inoperable because * * * for officer safety concerns, it’s important to make the gun inoperable[.]” On appeal, defendant renews her contention that the officer’s removal of the magazine was an unlawful search under Article I, section 9, of the Oregon Constitution. Defendant’s challenge is narrow: she does not challenge the inventory of her car, the search of the bag, or the removal of the gun. Rather, she challenges only the single act of remov- ing the magazine from the gun. Cite as 354 Or App 658 (2026) 661 We conclude that, even assuming that removing the magazine was a search, that warrantless search was justified by officer-safety concerns. A warrantless search is presumed to be unreasonable unless the search falls within one of the exceptions to the warrant requirement. State v. Castimore, 351 Or App 808, 811, ___ P3d ___ (2026). “One of those exceptions is the officer-safety exception.” Id. That exception “authorizes law enforcement to take reasonable precautionary measures in response to confronted safety threats,” even to those safety threats not directly posed by a defendant. Id. at 813. The officer-safety exception applies “when it would be unreasonable to expect an officer to obtain a warrant because the officer is faced with an immediate risk of harm.” State v. Hite, 198 Or App 1, 10, 107 P3d 677 (2005). Where the identified safety threat is a firearm, we 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.” Castimore, 351 Or App at 815. Here, the officer had a subjectively reasonable belief that the firearm posed an immediate threat of serious injury based on specific, articulable facts. As noted above, Costanzo explained that he removed the magazine from defendant’s firearm “to check the status of the weapon and make sure it was safe for handling.” He also wrote in his police report that he “rendered the firearm safe, by removing the maga- zine which held 9mm rounds, followed by locking the slide to the rear, which revealed an empty chamber.” That evi- dence shows that Costanzo subjectively believed that the firearm that he was handling was only “safe” once he had removed the magazine and confirmed that the weapon was not loaded. Second, the officer’s subjective belief was objec- tively reasonable under the totality of the circumstances. Costanzo was holding a firearm that did not belong to him. A reasonable person in Costanzo’s position could assume 662 City of Portland v. Ponce-Murillo that the firearm they are holding may be loaded and fear that further handling the weapon without making sure the gun is not loaded could endanger the safety of themselves and those around them. Finally, the officer’s removal of the magazine from defendant’s gun was a reasonable response to the threat presented by the firearm. Castimore, 351 Or App at 818 (officer-safety measures must be proportionate to the threat). Costanzo’s removal of the magazine was a reasonable safety precaution that was proportionate given the risk posed by the potentially loaded firearm that he was handling. We are unpersuaded that the cases that defendant relies upon compel a different result. Hite, 198 Or App at 10; State v. Dickerson, 135 Or App 192, 195, 898 P2d 193 (1995). In Hite, the defendant was arrested after an officer saw him walking away from a car that matched the description of a stolen car. 198 Or App at 3. The officer opened the trunk of the car and discovered two backpacks there. Id. The officer asked the defendant if there was anything in the backpacks and specifically if there was a gun. Id. at 4. The defendant said, “There might be.” Id. The officer searched the back- packs without the consent of the defendant or a warrant and found a gun in one of them. Id. We held that the search was not justified as a search incident to arrest for the pur- pose of ensuring officer safety because the possibility that the backpacks might have contained a gun did not present an immediate risk of harm. Id. at 10. More particularly, we noted that there was no articulable risk to the officer had he simply left the backpacks in the trunk of the car. Id. We also noted that the officer offered no reason to believe that the backpacks had to be moved before he could obtain a war- rant. Id. In Dickerson, officers learned that the defendant had an arrest warrant and went to the area where they had last seen him. 135 Or App at 194. While en route, they learned that the tires of several cars in that area had been slashed. Id. The officers located and arrested the defendant before conducting a patdown search of him. During the patdown search, an officer removed a pocketknife from defendant. Id. An officer opened the pocketknife, on the blade of which Cite as 354 Or App 658 (2026) 663 he saw a black smudge. Id. We held that the warrantless search of the pocketknife was not justified by officer-safety concerns because the officers no longer had reason to believe that the knife posed a threat of harm to them once it was in their possession. Id. at 195. Unlike in Dickerson, where we held that officer safety did not justify the officer opening a pocketknife, here, the officer was holding defendant’s firearm. Once in the possession of an officer, a closed pocketknife may no longer pose a threat, but a firearm, which could be loaded, does. This case is also different from Hite, where the defendant challenged an officer’s search of the defendant’s backpack. In Hite, the possibility that the backpacks might have con- tained a firearm did not present an immediate risk of harm because the officers did not articulate a need to move the backpacks from the car or explain why they could not wait to search the bags until they had a warrant. That is a very different situation from the one presented here, where the officer was lawfully holding a potentially loaded firearm in his hand. Defendant, however, argues that Costanzo did not need to handle the firearm and that he could have left it in defendant’s bag or “gingerly placed it in the trunk of his patrol vehicle and dealt with it later[.]” Yet it is important to emphasize the narrow scope of defendant’s challenge on appeal—defendant does not challenge the seizure of defen- dant’s gun, only the removal of the magazine from it. Thus, whether the officer could have left the gun in the bag is irrelevant to our analysis. And we decline to hold that an officer who is lawfully holding a potentially loaded gun is constitutionally obligated to, rather than render it safe at the moment, “gingerly” place it in their patrol car trunk to be dealt with later. State v. Zumbrum, 221 Or App 362, 366, 189 P3d 1235 (2008) (it is not our place to “uncharitably second-guess the split-second decisions of officers who often work under dangerous, potentially deadly circumstances” (internal quotation marks omitted)). Indeed, that argument is inherently contradictory: if the weapon is not an imme- diate potential threat and can simply be dealt with later, there would be no need to handle it “gingerly.” 664 City of Portland v. Ponce-Murillo In short, the officer’s removal of the magazine from defendant’s gun was justified under the officer-safety excep- tion to the warrant requirement. The trial court correctly denied defendant’s motion to suppress. Affirmed.