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Oregon Court of Appeals 03-17-10

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by: Abassos • March 16, 2010 • no comments

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

  • Stop - Attenuation
  • Merger - Repeated Violations of the Same Statute
  • Stalking Protective Order - Speech
  • Criminal History - Issue Preclusion
  • Dependency - Adoption


Stop - Attenuation

Defendant was the passenger in a car with his girlfriend. They were stopped at the side of the road having a verbal argument. An officer approached, had concerns, and ordered the defendant out of the car. Defendant gave the officer permission to go into his backpack to get his identification. Glass meth pipe pieces were found inside. Defendant is arrested and girlfriend-driver is asked for permission to search the car. Meth is found near where defendant was sitting. Held: (1) Defendant was stopped when he was ordered out of the car and consent to search for identification was requested. (2) There was no reasonable suspicion for the stop. (3) Consent to search the car was requested only because of what was found during the illegal stop. That is, consent was obtained through exploitation of the illegality. (4) The state did not meet its burden to show there was sufficient attenuation between illegality and consent. Even the fact that defendant was Mirandized before he made statements was not enough because the fact that he was being held was a direct result of evidence found during the bad stop. State v. Towai

Merger - Repeated Violations of the Same Statute

Defendant damaged a planter, a bench and a plaque in a graveyard. Those three counts of Abuse of a Memorial merge into a single conviction because (1) there was only one statute violated and (2) there was no evidence that there was a sufficient pause between the three violations to afford defendant the opportunity to renounce his criminal intent. The state didn't argue that there were separate victims. ORS 161.067(3). State v. Bowers

Stalking Protective Order - Speech

Where speech is involved (including threats) a higher standard than normal is Constitutionally required for a protective order: the petitioner must show that the communication instilled a fear of imminent and serious personal violence; that the communication was unequivocal; and that it was objectively likely to be followed by unlawful acts. Here, the threats were scary but there was no evidence in the record that petitioners were afraid of imminent violence. Swarrangim v. Olson

Criminal History - Issue Preclusion

Issue of whether defendant's 1982 Federal conviction is a person felony for purposes of the instant case was settled at defendant's 1999 sentencing hearing. Defendant is now barred from arguing otherwise by the doctrine of issue preclusion, which requires the following: (1) The issue in the prior case is identical to the one in the current case; (2) The issue was actually litigated and essential to a final decision in the prior case; (3) The defendant had a full and fair opportunity to be heard; (4) the defendant was a party in the prior case; (5) the proceeding was a court hearing (and thus of a type that courts will grant preclusive effect.) State v. Gipson

Dependency - Adoption

The court erred in changing the permanency plan from APPLA (another planned permanent living arrangement) to adoption and termination where a suitable adoptive placement was unlikely. In an odd twist, DHS argued in this case that it cannot petition for termination unless it is reasonably certain that an adoptive placement would be found. Mother and father both took the position that termination was legally appropriate and in the children's best interests. The case is resolved by ORS 419B.498(3), which bars DHS from filing for TPR until there's a court finding that the permanency plan should be adoption. The point of the recent amendment, according to its sponsor:

in order to provide permanency for these children, the department has moved forward on these termination cases, and what has resulted in some cases is that there has not been an adoptive resource for the child, and we're hoping that this will make sure that there is an adoptive resource in place.

State v L.C.