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Oregon Appellate Ct - July 26, 2017

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by: Sara Werboff • July 31, 2017 • no comments

Defendant’s Statements were Admissions and Not Confessions

The court affirms defendant’s conviction, concluding that he was not entitled to an acquittal based on his argument that his statements were uncorroborated confessions. Police responded to a scene of an accident, where several men and vehicles were present. Defendant told police that he was the driver of the car involved in the accident among other statements. Defendant argued that those statements were uncorroborated confessions, because other people present could have been driving the car. Therefore, defendant asserted, he could not be convicted solely on the basis of those statements. The court disagrees with defendant and concludes that the statements were admissions because they were made to aid the officers’ investigation, and not to acknowledge guilt of a crime.

State v. Hurtado, 287 Or App 1 (2017) (Ortega, P.J.)

Civil Commitment – Court Reverses Continued Commitment under Expanded Criteria Defining Mental Illness

Appellant challenges her continued commitment on the basis that she is still a person with a mental illness under the expanded criteria defining mental illness that applies in recommitment proceedings, ORS 426.005(1)(f)(C). The court concludes that the state failed to meet one of the for necessary criteria, that appellant was exhibiting “symptoms or behavior substantially similar to those that preceded and led to” her hospitalization. The court concludes that the state’s evidence was legally insufficient because her doctors had earlier determined that she would be eligible for discharge and there was not enough evidence for the court to conclude that she would be a danger to others in the future.

State v. T.Z., 287 Or App 8 (2017) (Ortega, P.J.)

Search and Seizure – Preservation – Defendant’s Argument was Preserved and Evidence Should Have Been Suppressed

The court concludes that defendant preserved his argument that the officer safety exception did not justify handcuffing him and searching his person and that defendant prevails on the merits of that argument. Defendant raised the officer safety argument in a written motion to suppress, but at the hearing, argued about whether police unlawfully extended the stop. On appeal, the state argued that defendant did not preserve the officer safety argument, but the court disagrees. Under State v. Walker, 350 Or 540 (2011), defendant preserved that argument by raising it in the written motion to suppress. On the merits, the state does not argue that the search was lawful (arguing only that it was an unpreserved argument), and the court agrees with defendant that the search was unlawful.

State v. Mejia, 287 Or App 17 (2017) (DeVore, P.J.)

Search and Seizure – Preservation – Defendant Failed to Preserve Argument that Opening Car Door was Unlawful Search

The court rejects defendant’s argument that police unlawfully searched his car by opening the car doors. Police found defendant asleep in his car, which was running and parked in the middle of the street. The officers knocked on defendant’s door, but when he didn’t wake up, they opened the driver and passenger side doors to turn the vehicle off and wake up defendant. Police found evidence to support a DUII. At trial, defendant argued primarily about the circumstances under which the officers requested he submit to FSTs and a breath test, and not that it was unlawful for police to open the car doors. Defendant did suggest during closing argument that it was unlawful for police to do so, but returned to his primary argument. The trial court decided only the primary argument. The court concludes that the passing mention of the alternative argument during closing was insufficient to preserve the issue for review.

State v. Geyer, 287 Or App 25 (2017) (Lagesen, J.)

Identity Theft – Evidence was Sufficient to Show Intent to Defraud

The court affirms defendant’s two identity theft convictions. Defendant and a companion, Randolph, were at a casino. Another casino patron left her jacket on the chair when she went to cash in a ticket. Randolph pointed out the jacket to defendant and defendant took the jacket into the restroom. Security officers later found the jacket in the restroom and several items were missing, including the victim’s license and bank cards. Defendant told police that she gave those cards to Randolph. Defendant argued that the state failed to prove that she possessed and transferred personal identification with intent to defraud. The court disagrees, noting that the jacket had many pockets and defendant searched and removed items from different pockets and there was sufficient evidence to show that defendant was working in concert with Randolph and they were engaged in a joint endeavor to obtain items that could be used to steal another person’s identity.

State v. Lewis, 287 Or App 68 (2017) (Duncan, J.)

Search and Seizure – State Did Not Establish that Evidence Would Inevitably Be Discovered

The court reverses because the state failed to develop a sufficient record that evidence obtained in violation of defendant’s Miranda rights would have been inevitably discovered. Police were called to defendant’s house for a possible heroin overdose. Police learned that defendant, who appeared to be intoxicated, was on probation with a no-alcohol condition and intended to arrest him on the probation violation. Police asked defendant if he had anything illegal on him and whether they could search. After initially refusing consent, defendant admitted to having drug paraphernalia and police took him into custody. Defendant admitted to using heroin and told officers where they could find paraphernalia on his person. The state argued that the evidence would have inevitably been discovered in a search incident to arrest for the probation violation. The court disagrees, because the state did not establish that police would have conducted a lawful patdown and that patdown would have necessarily revealed the items.

State v. Sigfridson, 287 Or App 74 (2017) (Duncan, J.)

Search and Seizure – Defendant was Unlawfully Seized and Alternative Bases for Search Were Not Raised Below

The court concludes that defendant was unlawfully seized without reasonable suspicion and that evidence discovered during that stop should have been suppressed. The court also rejects the state’s arguments that the seizure was justified by officer safety concerns or that defendant’s consent was attenuated from the preceding illegal stop, because the state did not raise those arguments below. Police approached defendant while he was sitting in a parked car. When asking for identification, one of the officers directed defendant on how he should retrieve his wallet. Eventually the officer removed defendant from the car, patted his down and found a pocket knife. The officer asked defendant if he had anything illegal in his pocket, and defendant said “Yeah, you can take it out.” The officer found a container with meth inside. The court concludes that defendant was seized when the officer directed him to use his hands a certain way to retrieve his wallet. The court further concludes that the record is not sufficient to find that the seizure was justified for officer safety reasons. Finally, the record also is not sufficient for the court to consider whether defendant’s consent was attenuated from the illegal seizure.

State v. Najar, 287 Or App 98 (2017) (Flynn, J.)

Per Curiam – Search and Seizure – State Concedes Officer Lacked Reasonable Suspicion

The court accepts the state’s concession that police lacked reasonable suspicion that defendant possessed drugs from the facts that defendant appeared to be under the influence of a stimulant and was in the presence of a known drug user.

State v. Howard, 287 Or App 118 (2017) (per curiam)

Per Curiam – Burglary – No Burglary Where Defendant Had Permission to Enter

The court accepts the state’s concession that, under State v. Werner, 281 Or App 154 (2017), defendant did not commit a burglary when she committed a harassment in her mother’s house, where she had an “absolute and long-standing privilege to enter.”

State v. Pyshny, 287 Or App 120 (2017) (per curiam)