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Oregon Court of Appeals 01-06-10

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by: Abassos • January 5, 2010 • no comments

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

  • Probable Cause - Drug Dog
  • Failure to Appear - 1st vs 2nd degree
  • Upward Departure - Vulnerable Victim
  • Stalking Protective Order - Free Speech
  • Interfering with Public Transportation - Shared Public Use Platforms


Probable Cause - Drug Dog

A drug dog's positive sniff amounts to probable cause that drugs are present, at least when combined with an anonymous tip that the defendant was a drug dealer. This is true despite uncontroverted evidence that drug dogs only find drugs 2/3rds of the time and that they can hit on residual amounts. 2/3rds is still more likely than not. State v. Foster

Failure to Appear - 1st vs 2nd degree

You can't be convicted of 1st degree failure to appear when the only evidence is that you were released to appear on misdemeanor charges. Moreover, 2nd degree FTA is not a lesser included of 1st degree FTA. Thus, it's just a plain old reversal without remand. State v. Arney

Upward Departure - Vulnerable Victim

The trial court erred in imposing a vulnerable victim upward departure in a coercion case where the victim had been raped a year before. There was no evidence of increased vulnerability, harm or threat of harm for this victim. State v. Enemesio

Stalking Protective Order - Free Speech

While communicative, non-threatening contacts cannot themselves provide a basis for a stalking protective order, they can provide context for non-communicative contacts to support such an order. Here, the protected person was reasonably afraid for her safety taking all the contacts together. Buskirk v. Ryan

Interfering with Public Transportation

A Max platform which has a shared public use is not a "transit dedicated light rail platform." Thus, defendant's entry onto the platform was not Interfering with Public Transportation. We're talkin about you Hillsboro Transit Center. State v. Begay