Oregon Appellate Cases - Jan. 28, 2015

by: Abassos and Frangieringer • January 28, 2015 • no comments

Confrontation - A Notice of License Suspension Form is Not Testimonial

A "Notice of Suspension," signed by a police officer and given to a person after a failed breath test, is not testimonial. The purpose of a notice of suspension is to "serve the administrative functions of the court system, ensuring that the defendant received the notice to which he is statutorily and constitutionally entitled." Such a document does not become testimonial merely because the preparer knows the document could be used, and is used, in a future trial. Thus, the trial court did not err in admitting a notice of suspension, without supporting testimony, in a trial for driving while suspended. State v Velykoretskykh, 268 Or App 706 (2015)

Aid and Abet - Presence at Planning and Commission of Crime is Not Enough

Presence, no matter how extensive, is not enough to establish that a person aided and abetted a criminal act. Here, youth was present when others formulated a plan to burglarize a church, went to the church with the same people, stood outside while the burglary occurred, left with the people carrying stolen items and at no time attempted to stop the burglary. "Youth had no legal duty to refrain from being present at the scene, or to discourage the others from carrying out their plan to burglarize the church. The fact that youth was present establishes only that - his presence. Youth may be guilty of poor judgment, but the state did not prove him guilty of aiding and abetting a crime."

State v J.M.M, 268 Or App 699 (2015).

Exploitation - Forceful Control Over Defendant Can Be Enough

Exploitation of unlawful conduct to obtain voluntary consent to search an item occurs when the officer, through the unlawful conduct, “forcefully . . . assert[s] his control over defendant . . . and the property seized” to directly facilitate a search. Here,

1) an officer seized a backpack and immediately requested defendant’s consent to search the item after warning defendant that he might shoot him and ordering him to the curb;

2) immediately prior to the seizure of the back pack, the officer had searched defendant’s car, smelled marijuana, asked defendant and other passengers where the marijuana was, and stated that he “wanted it”;

3) after seizing the backpack, the officer asked if anyone wanted to “claim it.”

Because the officer acted forcefully and asserted control over defendant, passengers, and the property seized with the direct purpose of facilitating a search and the government offered no valid justification for the initial seizure of the backpack, the officer exploited that unlawful conduct to get defendant to consent to a search. As such, under Musser, the evidence obtained from the backpack should have been suppressed.

State v. Young, 268 Or App 688 (2015)