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Oregon Appellate Court 12-23-09

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by: Abassos • December 22, 2009 • no comments

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

  • Stop - Extension without Reasonable
  • Suspicion Reckless Endangering - Person must Exist (Fetus)

Stop - Extension without Reasonable Suspicion

Where the State does not prove that an officer, during a traffic stop, is still waiting for records check information, the court should assume that the officer has already received the information. Which means that when the officer asks for consent to search he must have reasonable suspicion to do so. Otherwise he has unlawfully extended the stop without reasonable suspicion. Furtive movements and the fact that defendant had pulled into the parking lot of a closed business in a sketchy area were insufficient to constitute reasonable suspicion. Reversed.[http://www.publications.ojd.state.or.us/A135730.htm State v. Berry]

Reckless Endangering

A person cannot be convicted of Recklessly Endangering another person who does not exist at the time the risk is created. Here, a pregnant woman took methamphetamine within hours of giving birth. Since at the time she took meth, under the laws at the time, the fetus was not a person, she could not be convicted of Reckless Endangering. The DA had charged it as: "did unlawfully and recklessly create a substantial risk of serious physical injury to [EH] BY INGESTING METHAMPHETAMINE THAT WOULD BE PASSED TO [EH] UPON HER BIRTH". Thus, defendant's demurrer was properly granted. State v. Cervantes. Ryan Scott's comments related to demurrers and prompted by this case:

"Perhaps the most frequent question I get off-pond is, 'Can I demur because of X?'

"Usually, the answer is 'no,' although I have been stretching the rule myself for the past couple of years because (1) by filing it pre-trial, I get a better offer from the prosecutor, (2) if the judge says 'it's premature,' that's not the worst ruling ever, (3) if the judge knows I tried to resolve it before calling in a jury, I think the judge is more comfortable ruling in my favor later, and (4) defense attorneys, I have found, are more receptive to novel arguments if they come in the form of pre-trial motions rather than motions in arrest of judgment or MJOAs"