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Oregon Appellate Court 11-25-09

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by: Abassos • November 24, 2009 • no comments

Read the full article for details about the following new cases:

  • Search and Seizure - Passenger; Attenuation
  • Juvenile - Termination Set Aside
  • Stop - Extension
  • Confrontation - Lab Reports
  • Merger - Burglary
  • Ice - Judicial Factfinding for Consecutive Sentences
  • Sentencing - MaximumsStop: ExtensionRestitution - Future Counseling

One substantive criminal case, one juvenile case and a slew of concessions. The usual OCDLA plug: these summaries are not a substitute for the more thorough OCDLA criminal law newsletter.


Search and Seizure - Passenger; Attenuation

Being the passenger in a car which has been eluding the police is not reasonable suspicion of a crime and, therefore, insufficient to justify a seizure of the passenger. While the issue is so obvious the AG concedes it, as Ryan points out on the pond, this may be quite significant for all the passenger in a stolen car cases our state gets where there is literally no evidence at the time of arrest except that passenger is in what has been reported as a stolen car.

The real issue for the court, attenuation, causes a discussion that is well worth reading. In this case, the connection between the unlawful seizure and defendant passenger's consent was not attenuated because (1) there was almost no time between the illegal conduct and request for consent; (2) there were no intervening circumstances between conduct and consent; and (3) there was nothing to mitigate the illegal conduct like information from the officer that refusing consent is allowed. State v Robbins

Juvenile - Termination - Set Aside

Parents filed two post-judgment motions to set aside the termination of their parental rights based on the fact that the large portions of the transcript were inaudible. Unfortunately, ORS 419B.923 prevents a judge, absent fraud, from setting aside a termination after the passage of a reasonable time. Since adoption had started, the time period was no longer reasonable: "On balance, given the significant and profound interest in achieving finality for the children-and the alternative procedural protections that were available to parents in this case-the state did not run afoul of due process by narrowly limiting parents' right to obtain a set-aside under ORS 419B.923 to the time period before the adoptions of the children were complete. Due process is not offended by the application of ORS 419B.923(3) in this instance." DHS v. BAS

Stop - Extension

An officer unlawfully extends a traffic stop for not wearing a seatbelt by asking the passenger if she has any weapons and if she would consent to a pat-down and search. Kirkeby and Rodgers are controlling. Per curiam. State v. Orcutt


A laboratory report is testimonial and, therefore, inadmissible absent the author of the report. Melindez-Diaz is controlling. Per Curiam. State v. Hamilton


Multiple burglaries merge into one conviction when based on a single unlawful entry and a single victim. Ditto for coercion with one act and one victim. White and Glaspey are controlling. Per Curiam. State v. McMurren


Judicial factfinding in support of consecutive sentencing does not violate the Constitution. Oregon v. Ice. Per Curiam. State v. Onuskanich

Sentencing - maximums

A sentence of prison plus post prison supervision may not exceed the statutory maximum. Here, a 42 month prison sentence followed by 36 months PPS was unlawful on a C felony (Felon in Possession of a Firearm). Per Curiam. State v. Hyman

Stop - Extension

An officer unlawfully extends a bicycle stop for no bicycle light by asking for consent to search. Kirkeby and Rodgers are controlling. State v. Montoya


A trial court errs in imposing restitution for future counseling when there's no evidence presented that the victim will receive such counseling. Which is a pretty sweet ruling for this defendant, who won't have to pay $7700.00 in counseling fees while he's doing his 300 month prison sentence. State v. Cufaude