Oregon Appellate Court 02-23-12
by: Abassos • February 23, 2012 • no comments
Read the full article for details about the following new cases:
- County venue can be inferred from proof of a city.
- Consent to search invalid following unlawful detention.
- Emergency aid requires an actual, imminent threat.
- The passive resistence instruction for Interfering with a Police Officer must be given when requested.
Venue
Where a city is entirely within a county, it is sufficient proof of venue to survive MJOA that the crime occurred in that city. A jury can infer that the city exists within the county. Here, the state proved that a DUII occurred in Medford. Such proof was sufficient for venue, even though nobody testified that the crime occurred within Jackson County. Note that this does not work for Portland, or any other city that exists across more than one county. State v. Davis ||
Consent to Search/Emergency Aid
Defendant was handcuffed and questioned outside her hotel room after her boyfriend was arrested on a warrant. The trial court found and the state, on appeal, agrees that handcuffing and questioning amounted to a seizure. Since there was no PC to believe a crime occurred, the seizure was illegal. And, since consent was obtained during the unlawful detention there was a causal relation between the detention and the consent. The state comes nowhere close to purging the taint of the illegality because the consent was obtained during an unlawful detention and immediately after a custodial interrogation without Miranda warnings.
The emergency aid doctrine doesn't save the state because there was no emergency. Officers knew that defendant's baby was in the hotel room, that defendant's boyfriend had a meth pipe on him when he was arrested and that defendant had previously been convicted of negligent homicide for rolling onto her child while high on meth. But without more, such facts do not constitute evidence of an imminent threat of serious physical injury. State v. Shirk ||
Interfering with a Police Officer
The trial court committed reversible error when it refused to instruct the jury that passive resistance does not constitute interference with a police officer under ORS 162.247. Per Curiam. [http://www.publications.ojd.state.or.us/sites/Publications/A145171.pdf State v. Davis] ||
