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Oregon Court of Appeals 04-07-10

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by: Abassos • April 6, 2010 • no comments

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

  • Preservation - Seizurer

Only one case today and it's on preservation. Frustrating, frustrating preservation. The trial attorney in this case correctly argued that the search was beyond the scope. Unfortunately, it wasn't quite the right flavor of "beyond the scope." The correct sub-argument was, via Reid, that a search of a non-resident's personal effects can exceed the scope of a search warrant. I.e., just because you happen to be at a house to be searched, doesn't mean you're included in the search warrant. The trial attorney argued that officers exceeded the scope by searching defendant for drugs when the warrant was only directed at items related to a burglary. I.e., maybe the officers could have searched defendant for items related to the burglary but that doesn't justify a completely unrelated search for drugs. The most convincing aspect of the Court's opinion is that because the correct legal argument wasn't made, none of the appropriate factual questions were developed. Like, for example, the defendant's actual relationship to the premises; the officer's knowledge of that status; the defendant's interest in and ability to control the items seized, etc. Still though, this preservation thing is infuriating.I hate the way it punishes an aggressive attorney who took the case to trial, filed a specific written motion as well as a supplemental motion and largely got the issue right. State v. Walker