Oregon Court of Appeals 08-11-10

by: Abassos • August 10, 2010 • no comments

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

• Restitution - Security Measures
• Inventory Search - Designed to carry valuables
• Dependency - Indian Child Welfare Act (ICWA) Good Cause
• Stop - Right for the Wrong Reasons
• Civil Commitment - Basic Needs
• Illegal Hunting - Enclosed Land of Another

Restitution - Security Measures

A victim incurs an expense, for which restitution may be claimed, where the victim becomes liable or subject to the expense as a result of the crime. Funeral expenses after a murder, for example, necessarily follow a death. Here, victim pharmacy planned to install security measures after the defendant's robberies. However, there was no evidence that they were required or liable to do so. There was a form they needed to submit to the DEA setting forth a post-robbery security plan but no evidence that the DEA required anything in particular. Restitution reversed. State v. Steckler

Inventory Search - "Designed to carry valuables"

A bottle of fish oil capsules is not designed to carry valuables. Thus, even if the officer believes the bottle contains valuables, he may not open the bottle pursuant to an inventory search where the inventory policy clearly states that an officer is only authorized to open containers "designed to hold valuables". When the officer is acting outside of the inventory policy, it's not a valid inventory search. Reversed. State v. Keady

Dependency - Indian Child Welfare Act (ICWA) - Good Cause

If taking children away from their foster family would cause permanent and lasting damage, it is "good cause" to reject the presumptive ICWA placement (designated by the tribe). DHS v. KRC

STOP - Right for the Wrong Reasons

The court rejects defendant's arguments about whether an excessive noise statute was vague because regardless of it's vagueness, the officer was allowed to stop defendant based on reasonable suspicion that his muffler was disconnected (a separate statute from excessive noise). The court also summarily rejects defendant's argument that where he requested counsel for his DUII breath test, he was required to be given counsel before a breath test could proceed. A breath test is not interrogation - that's all the court has to say about that. State v. Higley

Civil Commitment - Basic Needs

The State did not prove that AMIP was unlikely to survive into the near future where he had provided for himself enough to survive in the past and had money to survive in the near future. All the other evidence was "purely speculative". State v. A.M.-M.

Illegal Hunting - Enclosed Land of Another

A clear-cut line is not a clearly delineated boundary sufficient to "enclose" the land and make it off limits. An enclosure, under ORS 498.120, does not have to be a fence. But it does have to clearly mark the end of one property and the beginning of another. Here, there was forest and a clear cut, tree free area but nothing that clearly marked it as separate from surrounding property. State v. Kimble