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Oregon Court of Appeals 01-27-10

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by: Abassos • January 26, 2010 • no comments

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

  • Seizure - Victim
  • Due Process - Hearsay unavailability
  • Search and Seizure - Exigent Circumstances
  • Consent - Illegal Stop
  • Miranda - Compelling Circumstances
  • Disproportionality/Cruel and Unusual Punishment
  • Dependency - Mootness and Jurisdiction
  • Delinquency - Knowing and Intelligent Waiver

6 full criminal opinions today as well as a dependency and a delinquency. Several of them good cases for the defense.


Seizure - Victim

A suspected DV victim is seized when she is ordered out of her house and asked whether she has ever been arrested. The seizure mattered in this case because part of a syringe fell out of defendant's purse while she was talking to the officer. There was no reasonable suspicion or officer safety concerns because the officer was solely concerned with whether a crime had been perpetrated on the defendant. Conviction reversed. State v. Fair (Deschutes)

Due Process - Hearsay unavailability

Due Process may trump the Hearsay unavailability requirement. Defendant wanted to present penal interest hearsay exception evidence in his ag murder trial. But the witness wasn't unavailable - she testified but denied making the statements. The Court holds that where the totality of the circumstances indicate the trustworthiness of the statement, Due Process requires admission of an exculpatory hearsay statement for the defense. Remanded for a New Trial. State v. Casarez-Mendez (Washington)

Exigent Circumstances

Exigency is determined by a variety of fact-specfic factors like the time it would take to get a warrant and the feasibility of surrounding the house. Here, defendant was suspected of dealing drugs; he was about to move out of his house; it wasn't feasible to surround the house; it would have taken 60 to 90 minutes to get a search warrant; officers arrived to find defendant alert and apparently ready to leave; and defendant had a history of disappearing without a trace. Thus, the circumstances were sufficiently exigent to enter defendant's house and secure the evidence. State v. Sanders (Josephine)

Consent - Illegal Stop

Defendant's consent to search her backpack was the product of an illegal stop, and therefore invalid, where defendant was stopped at 1:00 am by two patrol cars while she was walking in her trailer park. The officers asked her where she had come from and asked her whether she had anything illegal on her. She denied having anything. They patted her down and found nothing. By the time they asked for consent to search her backpack, it was reasonable for defendant to infer that the officers wouldn't just let her walk away. Thus, if she felt stopped, it was a Holmes Type B stop without reasonable suspicion by the time consent was requested. Remanded. State v. Lovell (Lincoln)

Compelling Circumstances

Defendant's statement was made under compelling circumstances where the officer was arresting defendant for driving while suspended and, before giving Miranda warnings, asked defendant whether he "had anything" the officer "should be aware of". Defendant's statement that there was a pipe in his pocket should have been suppressed and was the tree that bore the poisonous fruit. Circumstances became compelling at the moment the officer told defendant he "was going to be detained" for committing a crime. Conviction reversed. State v. Schwerbel (Deschutes)

Disproportionality/Cruel and Unusual Punishment

A 25 year sentence is neither disproportionate nor cruel and unusual where the defendant took an 11 year old to a secluded area and raped her while she told him to stop. This ain't Rodridiguez or Buck. State v. Shaw (Coos)

Dependency - Mootness and Jurisdiction

An appeal from a finding of jurisdiction doesn't become moot when DHS dismisses the case for reasonable efforts and returns the child to the parents. While the stigma of such a finding is not justiciable in every case, here the father made a sufficient case that the allegations of abuse and the finding itself caused significant stigma, loss of security clearances and loss of potential employment. However, the jurisdiction itself was appropriate: "the juvenile court examined the totality of the circumstances in this case and determined that child needed the court's protection. Those circumstances included the facts that child was two months old; child had suffered a serious, painful injury caused by rotational or sideways force; child had likely gone days without receiving medical attention for that injury; neither parent, when initially asked for an explanation, provided one; and mother belatedly offered a plausible explanation but lied about having earlier provided that explanation to child's doctor. In our view, given the court's factual findings regarding the vulnerability of the child, the nature and severity of the injury, and the inadequacy of mother's and father's explanation, the juvenile court did not err in asserting jurisdiction in this case" State v. L.B. and N.A.M. (Washington)

Delinquency - Knowing and Intelligent Waiver

Twelve year old suspect's statements to the police about a sex case with a 10 year old were voluntary and intelligently waived where he was of average intelligence and education and was apparently tracking and responding to the officer's questions. State v. L.A.W. (Marion)