Oregon Appellate Court - August 8, 2012

by: Sduclos • August 8, 2012 • no comments

Attorney Fees > Trial Court Must Make a Record of Defendant's Ability to Pay

A court may not impose attorney fees upon a Defendant unless the court makes a record of Defendant's particular circumstances from which the trial court could find Defendant "is or may be able" to pay the fees.

Here, Defendant was ordered to pay $400 in attorneys fees. His attorney had informed the trial court that Defendant did not work and had no money. The state did not provide any evidence to the contrary. The order to pay was reversed because the trial court record said nothing about Defendant's particular circumstances and the state has the burden to show he can pay. State v. Pendergrapht.

Venue > State Must Show Where Defendant Was Located on Expiration of Ten Day Period

In order to prove venue for failure to register as a sex offender under ORS 131.305(1), the state must show where the defendant was on the expiration of the 10-day period. State v. Depeche and State v. Macnab. Here, the state showed that defendant moved out of a treatment facility and that he didn't register within ten days of that move. But thestate did not show where defendant was on day ten or establish the standard for alternative venue under ORS 131.325. The fact that defendant ultimately resurfaced in Multnomah county does not establish venue in that county. State v. Thompson

Speedy Trial > Eight-Year Delay Following Failure to Appear is "Reasonable"

Defendant does not implicitly consent to a delay by failing to appear to court. However, the amount of delay that follows a failure to appear is reasonable where the defendant knew that he was required to appear and that failing to do so would result in the issuance of a warrant for his arrest. Here, the defendant failed to appear for a pretrial conference in 2000, and the state didn't execute the warrant for his arrest until 2008. The court holds that although defendant did not consent to the delay, that portion of the delay was nonetheless reasonable. State v. Hernandez-Lopez

Unlawful Extension of a Stop > Must Have Reasonable Suspicion of the Crime Officers Are Investigating

"An officer's reasonable suspicion about certain crimes does not justify the officer's extension of a stop to conduct an investigation of another crime for which the officer does not also have reasonable suspicion." An officer does not have reasonable suspicion of PCS based on (1) furtive movement, (2) rotting teeth, (3) general nervousness, and (4) possible car theft and attempt to elude police officer.

Here, defendant was stopped for failure to wear a seatbelt, and the officer saw him reach toward the passenger floorboard before approaching the car. Defendant did not have a license, insurance, or registration documents with him, and he told the officers that he had borrowed the car. When officers asked him to step out of the car, he acted nervously, rolled up the windows, and reached for his keys. Ultimately, the officers conducted a dog-sniff on the car and found drugs. Under these circumstances, the officers did not have reasonable suspicion to extend the stop to investigate for drugs, even if they could have investigated theft of the car or attempting to elude a police officer. State v. Kentopp.

Preservation - Authentication

Defendant's appellate argument regarding authentication of a photograph was not preserved by a trial argument that there was a discovery or Due Process violation. Nor is an authentication argument preserved by a general objection of "Foundation". State v. Ritchie.

Stops > Sufficient Show of Authority > Mere Conversation Not Unlawful

Under a totality of the circumstances approach, the interaction of the two plain clothes police officers with the Defendants was not a sufficient show of authority to constitute an unlawful seizure where the officers flashed their badges but calmly and casually spoke to the Defendants in their parked car.

Here, Defendants were sitting in a parked car in a parking lot under observation by plain clothes police officers due to suspected drug trafficking in the parking lot. The police officers approached the car on either side, rapped on the windows, and showed their badges. The officers suggested to the Defendants that their behavior was suspicious and that they were trespassing. At that point, one Defendant dropped four bindles of drugs from her hand. Defendant argues that the interaction between the police officers and the Defendants before the Defendant dropped the bindles was an unconstitutional seizure. The court reasoned that while the officers approached the car in concert, they did not physically block the Defendant's means of exiting the car. They spoke to the Defendants in a calm and conversational tone and did not draw their weapons or ask for identification. The court held that, taken together, the circumstances do not indicate a "sufficient show of authority" to constitute an unlawful seizure. State v. Moats.

Dependency > Child Neglect

A DHS determination of child neglect was founded where there was reasonable suspicion of a risk of harm from mom allowing dad to move back in to her house.

Here, the court reverses the trial court and affirms that the DHS order was proper. First, mother had stipulated in the dependency jurisdictional hearing that father posed a risk to the minor. Second, there was independent evidence of a risk of harm. For example, the minor had reported to school officials that his father tried to stab him. The mother had been informed previously by DHS that the father was not to have contact with the minor because he was a sex offender and prohibited from having contact with children. The mother had been informed by the father's parole officer that father had violated the conditions of his parole and that a warrant had been issued for his arrest. The court held that under these circumstances, DHS properly determined that there was reasonable suspicion that the mother had placed the minor under threat of harm. A.F. v. Or. Dept. of Human Serv.

Exigent Circumstances - Applies to Urine Samples

Where police have probable cause to believe that evidence of a controlled substance will be in a suspect's urine, the exigency exception justifies a warrantless seizure and search of the suspect's urine in most cases. Per Curiam. State v. Walker.