Oregon Appellate Ct - May 25th, 2016

by: Aalvarez • May 26, 2016 • no comments

Consent to Search a Purse Did Not Include Consent to Search a Closed Makeup Compact Found Inside

Obtaining consent to search the defendant's purse, absent any indication of the reason for the search or what the officer is looking for, does not allow the officer to open and search through a closed makeup compact found inside the purse.

Here, the defendant’s purse went through an x-ray at courthouse security, an area containing signs warning about the dangers of bringing weapons into the courthouse. After running the purse through the x-ray machine twice, court security asked the defendant they could “search her purse.” The defendant said yes. Inside the purse, the officer located a closed makeup compact and opened it, finding drugs.

On appeal, the Court of Appeals holds that the defendant’s consent to search her purse did not include consent to search the closed makeup compact. There was nothing about the exchange between the defendant and the officer, or the circumstances surrounding their conversation, that would have indicated to a “typical, reasonable person in the defendant’s position that the scope of her consent to a search of her purse included small, closed containers, including the makeup compact[.]” When the officer asked for consent, there was no indication to the defendant that the officer was looking for drugs or things that could be hidden in small compact containers. To the contrary, the signs by the x-ray machine indicating no firearms and weapons were allowed likely communicated to the defendant that the search was to look for those larger items which would not be hidden in a makeup container. Moreover, although the defendant did not explicitly limit her consent to search at the forefront, “the record does not indicate that defendant knew that [the officer] was going to open the makeup compact before she did so or had a ‘meaningful opportunity’ to prevent [the officer] from opening it once she had started.” Because the officer’s search of the compact unlawfully exceeded the scope of the defendant’s consent, the resulting evidence should have been suppressed. Denial of defendant’s motion to suppress reversed.State v. Winn, 278 Or. App. 460 (2016)

A Guilty Plea to One Burglary Does Not Justify Awarding Restitution Based on Other Unsolved Burglaries

A defendant may not be ordered to pay restitution for crimes he did not admit to or crimes that were not causally related to the crime he admits to.

Here, the defendant plead guilty to possession of methamphetamine and in his plea petition, he stipulated to restitution for a burglary that took place on June 8, 2013. In addition, the victim requested, and the court ordered, over $12,000 in restitution based on other unsolved burglaries from the victim’s property that the prosecutor argued, and the court agreed, that the defendant likely committed.

On appeal, the Court of Appeals reverses the trial court’s decision to order restitution for the unsolved burglaries. The defendant did not admit to the other burglaries, thus the court’s fact-finding regarding restitution was limited to the “causal relationship between the admitted burglary on or about June 8, 2013, and the victim’s economic damages.” In this case however, there was no evidence linking the defendant to the other burglaries because the only stolen property found on the defendant came from the June 8, 2013 burglary. No other evidence was presented that anything else was stolen by the defendant during the time period he admitted to. Thus, the court erred in ordering restitution for stolen property that the defendant did not admit to taking. State v. Akerman, 278 Or. App. 486 (2016)

Permanency Plans- Sufficient Evidence to Justify Changing from Reunification to Guardianship

There was sufficient evidence for the juvenile court to move its permanency plan away from reunification towards a permanent guardianship with the child’s grandparents where DHS had made reasonable efforts (by offering to have mother obtain a psychiatric evaluation as well as connecting her with other treatment providers) to reunite the family and where the evidence showed that, even after nearly a year in treatment, although father and mother had made progress, they still lacked critical insight into the reasons that lead to the court taking jurisdiction over their child. Mainly, mother and father continued to fail to appreciate that their previous methods of parenting were not appropriate, continued to deny that they previously engaged in domestic violence (although that was the basis for the jurisdiction), and blamed the children and DHS for the juvenile court’s involvement. Affirmed. , DHS v. A.S., 278 Or. App. 493 (2016)

Orders that Did Not “Adversely Effect” a Parent’s Duties Were Not Appealable

Two “disposition review” judgments in which the juvenile court continued mother’s placement of her two children in substitute care and continued its previous finding that DHS had made reasonable efforts to unify the family were not appealable under ORS 419A.200(1) because the judgments did not “adversely affect” the mother’s rights or duties, because they simply continued the court’s previous orders regarding the child’s placement and did not include any denials of request for relief that mother raised initially. Affirmed. DHS v. A. D. D. B., 278 Or. App. 503 (2016)

Consent to Search a Backpack Did Not Include Consent to Search a Closed Grocery Bag Inside the Backpack

A defendant’s consent for an officer to search his backpack did not authorize the officer to search a closed and opaque grocery bag found inside the defendant’s backpack.

Here, police encountered the defendant when they responded to a report of suspects chasing and attacking a victim in a park. When they encountered the defendant (the alleged victim of the attack) near the park, it appeared that the defendant was under the influence of drugs and/or mentally ill, and plainly not the victim of any attack. While speaking to the officers, the defendant told police he left a backpack in the park and officers walked with him to retrieve it. Officers asked the defendant if they could search the backpack and the defendant said that they could. Inside the backpack, the officers located an opaque grocery bag that had been knotted closed. Officers opened that bag and located drugs.

On appeal, the Court of Appeals finds that the defendant’s consent to search the bag did not encompass consent to search the closed grocery bag because nothing about the officer’s request to search the back pack nor the surrounding circumstances would indicate to a reasonable person in the defendant’s position that police were looking for something that could be hidden inside the closed grocery bag. Although officers may have suspected the defendant was on drugs and wanted to search for them, that subjective belief and intent to search was not communicated to the defendant. To the contrary, the officer’s expressed their concern that they were looking through the backpack to ensure that defendant had not lost any property. Because the circumstances would not have indicated to a reasonable person standing in the defendant’s shoes that the search was a search for drugs and would extend into the grocery bag, the opening of the grocery bag was unlawful. State v. Blair, 278 Or. App. 512 (2016)

Failing to Provide the “Accomplice Witness” Instruction – Reversible Error

It was not harmless for the trial court to refuse to provide the jury with the “accomplice witness” instruction that would have explained that an accomplice’s testimony must be corroborated by some evidence in order to support a conviction. Here, the defendant was charged with burglarizing a home and he put on a defense of mistaken identity. The defendant’s friend, a person who the evidence also supported as being connected to the burglary, testified that the defendant confessed to her. At trial, the defendant requested that the court identify the defendant’s friend as an “accomplice witness” and instruct the jury that her testimony could only serve as the basis for his conviction if it was corroborated. The trial court declined to give such an instruction. On appeal, the state conceded the error in refusing to give the instruction but argued it was harmless to fail to do so. The Court of Appeals disagrees, noting that for the refusal to give the instruction would only be harmless “if no reasonable jury could have found that the accomplice testimony was uncorroborated—i.e., the accomplice testimony was corroborated as a matter of law." Apart from the accomplice testimony, the remaining evidence connecting defendant to the crime, although it did indeed link defendant to the crime in some way, was not the kind of evidence that “compelled only one inference—that defendant was connected to the theft.” Because the accomplice’s testimony was not corroborated as a matter of law, it was not harmless to refuse to give the instruction. Reversed. State v. Savage, 278 Or. App. 523, (2016)

Per Curiam Civil Commitment Reversal

The state concedes that an order committing the AMIP on the grounds that he could not provide for his basic needs was based on legally insufficient evidence. Reversed. State v. J.E.C., 278 Or. App. ___ (2016)