Oregon Appellate Court 07-27-11

by: Abassos • July 26, 2011 • no comments

Preservation

An argument to the trial court that defendant was denied his request for an attorney during a custodial confession is not enough to preserve an argument for appeal that defendant should have been re-advised of his Miranda rights after his polygraph and before his confession. This case has a complicated procedural history in which, in accordance with a state's concession, the PCR court waived preservation to some extent. But not, according to today's opinion, for issues which were never raised with the trial court in the first place. The PCR court had found there to be ineffective assistance of counsel where the defense attorney failed to preserve the suppression motion in a stipulated facts trial by neither referring to the motion nor identifying any particular evidence. See Ryan's post below for more. State v. Ofenham

Search Warrant Affidavit - Probable Cause

A judge may make reasonable inferences when determining probable cause for a search warrant affidavit. Here, the affidavit talked about a recent controlled marijuana buy at defendant's residence as well as past purchases of marijuana from defendant at his residence. The controlled buy was clearly stated in the affidavit to be at the address the police wanted to search. But the past buys were simply said to be at defendant's residence. It was reasonable for the reviewing judge to infer that defendant's past residence was the same as his current residence, particularly since the grammatical structure implied it to be so. With that inference, there was clearly probable cause of ongoing criminal activity at defendant's residence. State v. Marsing

Stop - Free to Leave & Reasonable Suspicion

Defendant, a passenger in a car who the officer believed was selling drugs, was not stopped when police arrested the person believed to be the buyer in front of defendant. Nor was defendant stopped when the officer came back to the car after the arrest. Neither activity gave rise to a reasonable inference that the officers were intentionally and significantly restricting defendant's movement. The State conceded, and the Court of Appeals agrees, that a stop occurred when police ordered defendant out of the car.

The officer had reasonable suspicion for a delivery of marijuana when he saw defendant and a bicyclist interacting through a car window at 3:00 am in a high crime area; the bicyclist was in possession of marijuana; and even after the bicyclist was removed from the scene there was still a strong odor of unburned marijuana coming from the car. State v. Dampier

Juvenile - Court Ordered Visitation

In determining whether petitioners for court-ordered visitation rebutted the ORS 109.119(2)(a) presumption that a legal parent acts in the best interests of her child, a court must consider the serious present risk, not the long-term risk, of harm to the child. Here, grandparents did not rebut the presumption that mother was acting in child's best interest when they failed to establish either circumstances detrimental to the child or that granting the petition would not substantially interfere with the custodial relationship. Their petition for court-ordered visitation rights was properly denied. G. J. L. v. A. K. L.