Oregon Appellate Court, Nov 20, 2013
by: Abassos • November 20, 2013 • no comments
Where a Warrant Search Follows a Warrantless Search, the State Must Show Inevitable Discovery, Independent Source or Attenuation
When the state seeks to introduce evidence obtained from property that was initially searched unlawfully, the state must prove that the evidence was not tainted by the unlawful search. Here, police illegally searched a cell phone then obtained a warrant to search it and searched the phone again. The state argued that the evidence should be admissible because the warrant still furnished probable cause even when all references to illegally found evidence were excised. The court simply states that this argument "lacks merit." Once defendant establishes a minimal factual nexus between the illegality and the evidence, the burden shifts to the state to show why the evidence would inevitably have been discovered, was discovered through independent means, or that its discovery was attenuated from the illegality, arguments which the state doesn't even attempt to make here. State v McClatchey, 259 Or App ___ (11/21/2013)
Mistrial - Prosecutorial Misconduct - Trial Disclosure of Invoked Right to Remain Silent
While it is error to admit testimony by an officer that defendant refused to say anything, it does not justify a mistrial unless the jury is likely to draw adverse inferences. Here, the jury was unlikely to draw adverse inferences because (1) nothing in the context of the statement illustrated that defendant knew he was guilty of a new crime because he was being arrested on a warrant when he said he wouldn't say anything to the officer; and (2) nobody referred to the statement again. State v McClatchey, 259 Or App ___ (11/21/2013)
Right to Counsel - Officer Must Clarify Suspect's Intent in Response to an Equivocal Invocation
When a person equivocally invokes the right to counsel, officers must clarify whether the person intends to invoke. Simply re-Mirandizing after an equivocal invocation is insufficient. Here, defendant was arrested, properly questioned by detectives and then held in jail without access to a telephone. Defendant asked jail deputies when she would be able to call a lawyer. Because she didn't have a specific lawyer to call, they told her she would receive a lawyer at her arraignment. Prior to being arraigned, detectives came back, re-Mirandized defendant and questioned her again. The court finds that the statement "when will I be able to call an attorney?" is an unequivocal invocation of the right to counsel. But even if the statement were equivocal, the detectives did not "follow up with questions intended to clarify whether the suspect meant to invoke his right to counsel." Thus, evidence from the second interrogation should have been suppressed. However, since most of the same admissions from the second interview were made at the first interview, the court finds that there is little likelihood that the erroneous admission of evidence affected the verdict. Affirmed State v. Alarcon, 259 Or App ___ (11/21/2013).
The Witness in a Witness Tampering Case is a Victim
The witness in a prosecution for witness tampering is a victim for the purpose of the vulnerable victim upward departure factor. A victim is someone directly, immediately and exclusively injured by the commission of a crime. See State v. Teixeira, 259 Or App 184 (2013). Here, the witness-victim was directly affected because she was distraught over defendant's attempts to pressure her. She was also "particularly vulnerable" because (1) she had psychiatric issues; (2) defendant knew about those psychiatric issues and used them to try to get her to change her testimony; (3) defendant had seriously assaulted her on prior occasions; and (4) defendant previously threatened to harm her family if she didn't lie for him. Thus, there was a substantial and compelling basis for an upward departure. State v Lykins, 259 Or App ___ (2013).
Warrant Notification Through LEDS or NCIC Requires Arrest (And Therefore Purges the Taint of an Illegal Stop)
An arrest based on notice through LEDS or NCIC is a lawful arrest sufficient to attenuate an illegal stop from evidence found after defendant is arrested on the warrant. Defendant tried to argue that LEDS notice is insufficient under ORS 133.310 (2), the statute defining when an arrest is lawful. The court finds that notice of a warrant through LEDS qualifies, under ORS 133.310(2) as an "other mode of communication" and constitutes notification by "another police officer." State v Meier, 259 Or App ___ (2013).
Ag Theft - Stacking vs Valid Inferences
Where defendant was properly convicted of 7 aggravated thefts for stealing money from the victim's bank accounts in a particular way, the jury could properly infer an 8th theft from evidence that (1) similar to the other thefts, a large withdrawal was made and a small deposit put back in; (2) defendant frequently had large sums of cash around that time; (3) the large withdrawals stopped completely as soon as defendant was arrested. Such an inference was permissible even in the absence of evidence that the money was deposited into defendant's bank account (as in the prior thefts). State v Wright, 259 Or App ___ (2013)
Preservation - Drug Dog Reliability
Trial counsel did not preserve a challenge to a drug dog's reliability at a suppression hearing where the issue wasn't raised at all. This is true even though the state made a cursory argument on reliability and had the burden of proof on the issue. State v Gilson, 259 Or App ___ (2013)
