Oregon Appellate Court - December 19, 2012
by: Jwestover and Abassos • December 19, 2012 • no comments
Is It a Search? - Defendant’s Intent to Exclude General Public From Private Property
Officers’ entry onto defendant’s property was a search because there were three no trespassing signs posted near (or on) the front gate. Defendant clearly intended to exclude people from the property, overriding the general presumption that anyone has permission to walk up to the front door and knock. This intent created the search even though the officers did not see any of the signs and did not know about defendant’s intent. The warrantless entry was a search and the subsequent consent to search the house must be suppressed. State v Roper
Consent to Search – Mere Acquiescence
Defendant, in allowing a Detective to search his house, merely acquiesced to the Detective’s unconditional statement “we’re going to have to take the firearms.” The key is that the officer’s statements “did not express an understanding that [the officer] would not, and could not, search without defendant's . . . consent.” State v Jepson
Consent to Search – Not Mere Acquiescence
Defendant’s consent to search was not mere acquiescence to his probation officer’s demand where:
- “Wynn had been defendant's probationofficer for two years, and defendant was familiar with the conditions of his probation. : Hehad experienced past home visits while on probation. He was calm and collected duringthe search; the situation was not hostile, and no weapons were displayed. Although 10officers were present for safety reasons, only one of the five probation officers was armedand four of the law enforcement officers waited across the road from the house untilabout the time consent was obtained. There was no evidence of any threats or promises”
Stop vs Mere Conversation
Defendant was stopped when police asked her to step outside, told her they were investigating for drugs and theft, wrote down the information from her ID and asked her whether she had any drugs in her possession. The combination of circumstances added up to a show of authority that created a stop. Because there was no reasonable suspicion for a crime, defendant’s consent to search and the evidence found should have been suppressed. State v Thompson
Contempt is Not a Conviction
A contempt judgment, e.g. a violation of a restraining order, should not refer either to the judgment being a “conviction” or to the defendant being “convicted”. A judgment of contempt is not a conviction.
Also, one action which violates a restraining order in three ways should only result in one judgment and one sentence. State v Karimzadeh
Dependency – Change from APPLA to Termination
“Reasonable efforts” in accordance with a plan for “another planned permanent living arrangement” (APPLA) refers to DHS's attempt to find a permanent foster placement for the child. Not whether DHS has made reasonable efforts toward reunification. The focus “is child-centered, and requires a determination whether it is in the child's best interests not to file a petition for termination because the child can be returned home within a reasonable time.” Thus, incidents and allegations unrelated to the basis for jurisdiction are relevant and admissible. DHS v CL
Dependency – ICWA Active Efforts Not Required When Plan is Adoption
In the permanency phase of a dependency case, the requirement for active efforts under ICWA applies only when the case plan at the time of the hearing is to reunify the family. Not when the plan is adoption. Here, the permanency judgment called for initiation of termination proceedings, but because a permanency hearing is not a termination proceeding, the active efforts requirement was not triggered. DHS v WHF
