Oregon Appellate Court 06-22-11
by: Abassos • June 21, 2011 • no comments
Read the full article for details about the following new cases:
- Search and Seizure-Stop Juvenile Court Jurisdiction-Appeals
- Equal Privileges-Aggregation of Counts
Search and Seizure--Stop
A defendant is "stopped" for the purposes of Article I, Section 9 when an officer asks to search the defendant's purse while he has it in his possession. Because the officer is in control of the purse when he asks to search it, the defendant's freedom to leave is substantially limited. In addition, the defendant's refusal to consent to a search is not enough to create reasonable suspicion. An assertion of a constitutional right cannot support reasonable suspicion of criminal activity. State v. Rutledge
Juvenile Court Jurisdiction - Appeals
While a juvenile court has the authority to address dispositional issues pending an appeal of a finding of jurisdiction, if the original jurisdiction is found to be invalid, all jurisdictional and dispositional judgments are then vacated. Where the juvenile court failed to properly apply ICWA to the dependency proceedings, it lacked the authority to amend that judgment while the appeal of jurisdiction was pending. As a result, the state needed to make a new finding of jurisdiction once the case was remanded. Dept. of Human Services v. N.L.
Equal Privileges - Aggregation of Counts
The prosecution violates Article I, Section 20 of the Oregon Constitution by aggregating charges without using a systematic, consistently applied policy. Here, defendant was charged with many counts of theft and embezzlement. The DA proudly told the trial judge that, to determine how to aggregate those theft counts: "What we look at is a number of factors that are as unique as defendants are unique and as particular criminal acts are unique." The Court takes this as a concession that the Washington County DA didn't have a policy and that, in any case, the -every case is a snowflake- "policy" is not capable of consistent application. Thus, defendant's motion to dismiss should have been granted. State v. Savestano
In this companion case to Savestano, the State did have a written "policy" setting out general factors to determine aggregation, including "any other circumstance or factors unique to this case". While such a policy may sound the same as the snowflake policy above, the Court finds it sufficient. Thus, the question is one of consistency of application. Defendant tried to argue that the prosecution needed to say how the decision to aggregate was made in this case in order to determine whether it was consistent with the policy. The Court rejects that argument, saying simply that it is defendant's burden to demonstrate an inconsistent application of policy. Since she made no attempt to do so, the court appropriately denied her motion. State v. Pettengill
