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Oregon Appellate Court 12-09-09

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by: Abassos • December 8, 2009 • no comments

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

  • Statute of Limitations - Prosecution Commencement Date
  • Stop - Subjective Belief
  • Withdrawal of Guilty Plea - State's Motion
  • Search and Seizure - Inventory Search
  • Stop - Subjective Belief
  • Merger - ID Theft


Statute of Limitations

Prosecution is commenced, for purposes of the statute of limitations, when "a warrant or other process is issued," not when the grand jury indicts. The state argued that an indictment satisfies "other process" under ORS 131.135, but an analysis of the Criminal Law Revision Commission's legislative minutes indicates that the committee did not intend for indictments to satisfy "other process." State v. Williams

Stop - Subjective Belief

Defendant reasonably could have believed that he was not free to leave where (1) the deputies parked their cars behind defendant's truck, blocking his exit; (2) an officer told defendant to talk to the other officer; (3) the officer asked defendant if he was a felon; (4) the officer then asked for defendant's identification; and (5) the officer asked if he could search defendant's person. Assuming defendant subjectively believed he wasn't free to leave, he was stopped. Since the officer had no reasonable suspicion of a crime, the ensuing consent search was illegal and its fruits should be suppressed. State v. Hemenway

Withdrawal of Guilty Plea

Only a defendant may seek to withdraw a guilty plea under ORS 135.365. Here, the state and defendant entered into plea negotiations and, in accordance with the plea agreement, defendant pled guilty to third-degree robbery in lieu of first-degree robbery. A dispute arose on a procedural issue and the state moved to withdraw defendant's guilty pleas over the defendant's objections. The statute, however, does not provide any authority for the state, or the court on its own motion, to permit a plea to be withdrawn over a defendant's objection. State v. Heisser

Inventory Search

Defendant's car and it's contents were lawfully inventoried where (1) the car was lawfully impounded; (2) the Beaverton ordinance eliminates officer discretion; and (3) the officer did not deviate from the established protocol. Section E of the applicable Beaverton ordinance indicates that an officer may open a container if the officer "reasonably believes that the closed container contains valuable or dangerous personal property." The officer properly opened a large black drawstring bag he found under the driver's seat because he reasonably believed that it contained valuable personal property. The officer, instead, found meth. State v. Stone

Stop - Subjective Belief

Defendant, a passenger in a lawfully stopped car, was seized when she was informed by an officer that a drug dog was on its way. It was objectively reasonable that defendant didn't feel free to leave. Since there was no reasonable suspicion for the seizure, defendant's "consent" in response to the officer's statement could not justify the search of her purse. State v. Mathis

Stop - Subjective Belief

Just as in Ashbaugh, it is objectively reasonable to believe you aren't free to leave in the following situation: An officer runs a warrant check on you after briefly obtaining your ID, while a different officer questions you about whether you are in possession of weapons or contraband. When you answer in the negative, the officer asks for your consent to search thereby indicating that he does not believe your denial. Per Curiam reversal. State v. Dudley

Merger - ID Theft

The multiple convictions for each ID from victim's wallet in the possession of Defendant should have merged into one ID Theft conviction. Per Curiam reversal. State v. MacDonald. Ryan Scott gives some context to the case:

"Todays per curiam opinion in State v Mac Donald holds that a bunch of IDs - in the name of a single person - all merge into one. The important part of the decision is that it reaffirms, yet again, that the existence of multiple items of contraband is not, by itself, an obstacle to merger. So, 12 rocks of cocaine - they merge into one PCS. 12 firearms, one felon in possession. 12 fake $100 bills, one Forgery 1. (State v Merrick.) 12 pieces of ID, one count of ID Theft. 12 nude photos of children, one count of Encouraging. Now, those last two examples come with caveats. The caveat is the same for each: they don't merge if there are separate victims. But as St v Betnar opined, whether or not a child in the photos is a victim of "encouraging" is an open question. And whether the person who is named in the ID is a victim of Identity Theft would be at odds with St v Graves (in a forgery case, the person who is going to be defrauded - not the person whose name was used - is the victim). My only problem with the opinion is that it assumes the state's definition of victim - because that definition wasn't an issue under those facts. But that open question will be answered soon enough, I hope."

Special thanks to Lorraine Ater, 1L at L&C, for helping write this review.