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Oregon Appellate Ct - April 19, 2017

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by: Sara Werboff • April 21, 2017 • no comments

Search and Seizure – Defendant was Not Seized Under Oregon Law and Police Had Reasonable Suspicion Justifying Seizure Under Federal Law

The court upholds the denial of defendant’s motion to suppress. Defendant was a passenger in a car that was stopped for a traffic violation. The officer noted that the driver was visibly upset and had a healing black eye. When the officer asked the driver about her eye, defendant said she had hurt it on a ladder. The officer felt that the explanation was inconsistent with the injury. The officer took their information and ran it to determine whether there was a valid driver for the car. The two shared a last name. The officer grew suspicious that the driver was the victim of domestic violence. When the officer got back to the car, she asked the driver to step out so she could ask questions outside of defendant’s presence. The driver denied domestic violence but acknowledged drug use and authorized the officer to retrieve some used syringes from the car. Defendant also admitted to possessing the syringes and said the officer could search the car. The officer found more drugs and paraphernalia.

Defendant challenged the search as an extension of a traffic stop. The court first concludes that under Article I, section 9, defendant, as a passenger, was not seized because the officer did not restrain him by physical force or a show of authority. Under the Fourth Amendment, the court explains, defendant was seized when the car was stopped. However, the court concludes that the officer had reasonable suspicion to extend the traffic stop to investigate whether the driver had been assaulted by defendant.

State v. Evans, 284 Or App 806 (2017) (Ortega, P.J.)


Search and Seizure – Defendant Did Not Have a Privacy Interest in a BAC Test Conducted for Medical Treatment

ORS 676.260(1) requires hospital staff to notify law enforcement investigating a car accident if the purported driver has a BAC that exceeds the legal amount. Defendant was in the hospital being treated following a car accident. Hospital staff tested his blood as part of his medical treatment and revealed a .333 percent BAC. Staff then notified the officer who was present investigating the accident.

Defendant argued that the hospital’s disclosure of his BAC test result was a search under both Article I, section 9, and the Fourth Amendment. The court first rejects defendant’s argument that he had a privacy interest under Article I, section 9, because it had previously rejected that argument in State v. Gonzalez, 120 Or App 249 (1993) and defendant did not meet the burden of showing that Gonzalez was wrongly decided. Under the Fourth Amendment, defendant relied on Ferguson v. City of Charleston, 532 US 67 (2001), in which the United States Supreme Court struck down as unconstitutional searches of pregnant patient’s urine pursuant to a joint policy between the hospital and law enforcement. Here, the court distinguishes that case because the purpose of the search in Ferguson was to gather incriminating evidence for later prosecution. The Supreme Court did not similarly overrule policies that impose a duty to make disclosures to law enforcement when evidence is discovered in the course of routine treatment, as it was in this case.

State v. Miller, 284 Or App 818 (2017) (Duncan, P.J.)


Post-Conviction Relief – Relief Warranted When Trial Counsel Failed to Call Exculpatory Witness

The court reverses the denial of petitioner’s post-conviction relief petition. Petitioner was convicted of assaulting a man, Johnson. Petitioner did not deny hitting Johnson, but contended at trial that he acted in self-defense and Johnson was the first aggressor. Before petitioner’s trial, petitioner’s co-defendant went to trial. The co-defendant called a man, Smith, an inmate, who testified that Johnson admitted to being the first aggressor and needed petitioner convicted so he could get money for medical expenses from the victim’s assistance office. The co-defendant was acquitted. Co-defendant’s counsel contacted petitioner’s counsel and told her that Smith was a good witness and testified credibly even in light of his incarceration and criminal history. Petitioner’s counsel subpoenaed Smith for trial but did not call him as a witness.

The court concludes that trial counsel rendered constitutionally deficient assistance of counsel. Trial counsel inaccurately stated that she did not call Smith because petitioner asked her to do so on the day of trial and she did not know anything about him. She denied having him under subpoena. However, she had her investigator talk to Smith and had him under subpoena. Moreover, co-defendant’s counsel had told her that Smith was a good witness. Counsel’s decision not to call Smith was a failure of professional judgment because Smith was critical to petitioner’s sole defense, self-defense, because he could impeach the victim. Petitioner’s other witnesses had been impeached by their close ties to petitioner, but Smith would not have been. The court also concludes that the failure prejudiced petitioner.

Cartrette v. Nooth, 284 Or App 834 (2017) (Lagesen, J.)


Second-Degree Escape - Insufficient Proof of Escape When Defendant in Custody on Probation Violation - Courtroom was Correctional Facility for Purposes of Escape

The court reverses one count of second-degree escape and affirms the other. Defendant was on probation and appeared in drug court. Her probation officer alerted the trial court that defendant had violated her probation and asked the court to remand her into custody. Instead of taking defendant to jail herself, the probation officer opted to wait for a deputy. Defendant fled.

Count 1 alleged that defendant escaped from custody imposed as a result of a felony. The court agrees that the state failed to prove this charge, because defendant escaped from custody as a result of an alleged probation violation, not a felony conviction. Count 2 alleged that defendant escaped from a correctional facility. The court affirms that conviction concluding that under State v. Lane, 341 Or 433 (2006), a courtroom is a correctional facility when a trial court remands a defendant into custody.

In a per curiam opinion, the court affirms the trial court’s revocation of probation on the basis of defendant’s escape conviction.

State v. Girard, 284 Or App 845 (2017) (Lagesen, J.)

State v. Girard, 284 Or App 885 (2017) (per curiam)


Search and Seizure – Inventory of Defendant’s Bag was Lawful – Plain Error Imposing Attorney Fees

The court upholds the denial of defendant’s motion to suppress. Defendant was lawfully arrested for interfering with a peace officer. Following his arrest, an officer inventoried defendant’s bag and found methamphetamine. Defendant argued that the state failed to prove which policy the officers relied upon to conduct the inventory or that the officers acted pursuant to a systematically administered policy that involved no exercise of discretion. The court rejects defendant’s first argument, contending that the officer stated he was following municipal code policy. The court also concludes that the state presented sufficient evidence, in the form of the officer’s testimony, that the policy was systematically administered whether the inventory occurred in the field or at the police station. The court declines to address defendant’s argument that the state must offer evidence that other officers conduct inventories under the same circumstances in order to prove that the policy is systematically administer because that argument was not raised below.

The court reverses the imposition of attorneys fees as plain error. In so doing, the court rejects the state’s argument that defendant failed to demonstrate the error was plain because the trial court could have relied on information collected to determine defendant’s eligibility for court-appointed counsel. The existence of that information is not an “affirmative indication” in the record that the trial court made the required findings of ability to pay.

State v. Towai, 284 Or App 868 (2017) (Flynn, J., pro tempore)


Per Curiam – PCR Court Did Not Err in Dismissing Petition Under ORCP 21 A(3)

The court upholds the post-conviction court’s dismissal of the petition on the grounds that there was another action pending between the same parties for the same cause under ORCP 21 A(3). The court notes that petitioner’s contention was unpreserved and that there was no dispute that there was another proceeding pending.

Bogle v. Nooth, 284 Or App 879 (2017) (per curiam)


Per Curiam – PCR Court Not Required to Respond to Petitioner’s Pro Se Claims

In this post-conviction case, petitioner challenges the post-conviction court’s failure to consider his pro se claims, contending that under Church v. Gladden, the court was required to do so. The court holds that the post-conviction court was not required to consider petitioner’s claims. Church simply requires that petitioner present his pro se claims in order to avoid those claims being barred in the future.

Bogle v. State of Oregon, 284 Or App 882 (2017) (per curiam)