A Book from the Library of Defense

Oregon Appellate Court, July 17, 2019

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by: Rankin Johnson • July 23, 2019 • no comments

Summarized by Rankin Johnson, OCDLA

SEARCH AND SEIZURE - Particularity requirement for search warrants

Warrant permitting search of cell phone failed to specify the data to be sought with sufficient particularity to guide an executing officer. Reversed and remanded.

The warrant sought a variety of data on the phone "related to controlled substance offenses." The search revealed text messages suggestive of defendant's drug use and trafficking. The court explained that, because cell-phone searches have tremendous possible scope, the information sought must be specified in the warrant. The court distinguished a prior decision upholding a search for child pornography, reasoning that an electronic search for child pornography has an obvious objective, but an electronic search for evidence of drug offenses does not.

State v. Savath 298 Or App 495 (July 17, 2019) (DeHoog) (Lane County, Zennaché)

REPO - Comparable out-of-state convictions

California offense of shoplifting is not comparable to Oregon offense of burglary in the second degree for REPO purposes. Reversed and remanded.

State v. Baker 298 Or App 521 (July 17, 2019) (Aoyagi) (Umatilla County, Hill)

MENTAL STATES - Conduct and circumstance elements

The victim's lack of consent is a circumstance element of second-degree sexual abuse, and thus in order to be guilty defendant must be, at a minimum, criminally negligent with respect to that element. Affirmed.

Aoyagi, J., concurring, believed that disposition was required by prior cases, some from the Supreme Court, which had been incorrectly decided.

State v. Haltom 298 Or App 533 (July 17, 2019) (Per curiam, Aoyagi concurring) (Yamhill County, Wiles)

SENTENCING - Probation conditions and medical marijuana

Probation condition requiring a doctor's prescription to use medical marijuana was improper. Reversed and remanded.

State v. Harper 298 Or App 542 (July 17, 2019) (Per Curiam) (Lane County, Zennaché County)