Oregon Appellate Ct - Oct 5, 2016
by: Sara Werboff • October 10, 2016 • no comments
Search and Seizure - Unlawful Extension of Traffic Stop
The court concludes that police unlawfully extended a traffic stop of defendant and that the evidence derived from that stop must be suppressed. An officer saw defendant's truck parked across the street from a trailer park known for drug activity. The officer turned around to speak with defendant, but defendant drove away. The officer followed defendant "at incredibly high speeds" to catch up, saw defendant commit a traffic infraction and pulled him over. Defendant was very nervous and his hands were shaking. Defendant also looked around frantically, which made the officer concerned about weapons. The officer noticed a knife, which was unlawful for felons to possess. The officer returned to his patrol car and had dispatch run a check for defendant's criminal history, specifically if defendant had a history of drug offenses. Dispatch informed the officer that defendant had a felony drug offense conviction. At that point, the officer believed that defendant had committed a weapons offense, but he began questioning defendant about drugs. Ultimately, the officer found methamphetamine in defendant's pocket. The court concludes that the officer's request to dispatch to check defendant's criminal history unlawfully extended the stop because the officer lacked reasonable suspicion that defendant was a felon and that defendant was involved with drugs. The officer testified that he did not have any reason to think that defendant was a felon when he requested the criminal history check, and the other factors - defendant's presence at the trailer park and his nervous demeanor - were not sufficient to amount to reasonable suspicion of drug activity.
State v. Bray, 281 Or App 235 (2016) (Haselton, S.J.)
Jury Concurrence - Concurrence Instruction Required when Evidence of Both Principal and Aider and Abettor Theory
In this case, where the jury was instructed that it could find defendant guilty of identity theft and theft charges as either a principal or an aider/abettor, the trial court erred when it failed to instruct the jury that it must concur in the theory of liability. Defendant and his girlfriend obtained customer account information from 10 customers from a Pizza Caboose restaurant. At trial, defendant's girlfriend described defendant's role in the scheme as more limited. A reasonable juror could find defendant guilty as an aider or abettor or principal, thus, without a concurrence instruction, there was no assurance that the required number of jurors agreed as to the theory of guilt.
State v. Wright, 281 Or App 399 (Devore, J.)
Juvenile Dependency - Juvenile Court Erred in Finding Jurisdiction
The court reverses a wardship determination. Father, who resided in Arizona, sought custody of his two children from Oregon. Arizona, however, had declined to approve father as a placement for the children under the Interstate Compact for the Placement of Children (ICPC). The juvenile court relied on that negative ICPC determination in finding jurisdiction over the children. The court holds that ICPC determination applies only after jurisdiction is found, and itself cannot be a basis for jurisdiction. Because there was insufficient evidence of a specific risk to the children, the juvenile court erred in finding jurisdiction.
DHS v. Z.E.W., 281 Or App 394 (2016) (Duncan, P.J.)
Per Curiam - "Right to Apply for Driving Privileges" is Different than Right to Seek Restoration of Driving Privileges
The court affirms a judgment that provided, in part, that defendant's driving privileges were permanently revoked following his third conviction for DUII and that defendant's "right to apply for driving privileges" was also permanently revoked. Defendant argued that the judgment was overbroad because a defendant can seek restoration of driving privileges after 10 years. The court clarifies that the prohibition on applying for driving privileges concerns only a person's right to seek a license from the DMV and does not apply to a person's ability to seek restoration of driving privileges from the circuit court under ORS 809.235(2).
State v. Gonzales-Acevedo, 281 Or App 449 (2016) (per curiam)
Per Curiam - Attorney Fees
The court reverses the trial court's imposition of $634 in court-appointed attorney fees. Imposition of attorney fees was plain error and the court exercises its discretion to correct the error because in light of defendant's circumstances, the attorney fee judgment is substantial.
State v. Cloman, 281 Or App 452 (2016) (per curiam)
Per Curiam - Remanding for Resentencing Due to Discrepancy between Court's Pronouncements and Judgment
The court remands for resentencing because defendant's judgment stated he was ineligible for any form of sentence reduction, but the trial court announced that he would be eligible for "credit for time served as well as good time and work time." The state conceded that the discrepancy between the trial court's oral pronouncements and the written judgment required the court to remand the entire case for resentencing.
State v. Pauley, 281 Or App 454 (2016) (per curiam)
Per Curiam - Civil Commitment - Sufficiency of Evidence
The court accepts the state's concession that the evidence was legally insufficient to show that appellant was a person with mental illness.
State v. J.S., 281 Or App 457 (2016) (per curiam)
