Oregon Court of Appeals 09-22-10
by: Abassos • September 21, 2010 • no comments
Read the full article for details about the following new cases:
- Stalking Order Violation - Oregon Free Speech
- Search and Seizure - Random Searches of DMV Records
- Amending an Indictment - Subcategory Facts
- Search and Seizure - Emergency Aid Doctrine
- Theft - Evidence of Value
- Search and Seizure - Attenuation
- PCR - Ag Murder Penalty Phase
Contents |
Stalking Order Violation - Oregon Free Speech
This case deals with a Portland Tribune writer and an obsessed, presumably mentally ill fan with romantic delusions. The Stalking Protective Order itself was an appellate case in Van Buskirk v. Ryan. So now we're back with solely communicative contacts as the basis for a violation: two non-threatening letters. The question of whether expressive contacts can form the basis for a violation (even though they can't for the original order) collapses into a separate question of whether the constitutional requirements laid out in State v. Rangel apply to the phrase "reasonable apprehension" in the violation part of the stalking statute the same way they apply to the word "alarm" in the order part of the statute. The court finds that it does and that an MJOA should have been granted:
the "apprehension" described in ORS 163.750(1)(c), like the "alarm" described in ORS 163.730(1) and ORS 163.732(1), must be caused by a threat "that instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts."
Random Searches of DMV Records
It is not an unconstitutional search for an officer to randomly access a person's DMV records. Here, the officer saw defendant's car, accessed DMV information based on the car's license plates and pulled defendant over for DWS. There is no inherent privacy right in DMV records and ORS 802.177 doesn't create one. State v. Davis
Amending an Indictment - Subcategory Facts
Overruling State v Paetehr, the court finds that a DA is allowed to amend an indictment to add subcategory facts because "The grand jury's jurisdictional function does not include finding facts that pertain only to sentencing." Here, defendant was charged with Assault I and 9 days before trial the DA was allowed to amend the indictment to add language that the victim did not precipitate the assault, raising it from a level 9 to a level 10.
Emergency Aid Doctrine
The court finds that the emergency aid doctrine doesn't apply to the facts in this case:
To review, on arriving at the side of the house, the officers knew the following. A person claiming to be a neighbor had called 9-1-1 to report yelling and screaming at Turnage's house and that a two-and-one-half-year-old child might be present. The person had reported that Turnage had used a prearranged code word indicating that she was in trouble and needed immediate police assistance. When the officers arrived, they heard yelling from inside the house but could not describe what was being said. There is no indication in the record that any of the sounds that the officers heard were suggestive of a physical struggle. Also, on their arrival, the officers met a woman and man on the front porch of the house who explained that they had previously been inside the house. In response to questioning about "exactly what was going on," the people on the porch did not provide any information about weapons, injuries, or threats of violence, nor did they indicate that police intervention was necessary to prevent harm. Subsequently, while en route to the back door, the officers stopped at the side of the house where they could see through a window that defendant and Turnage were arguing inside. At that point, the officers still could not make out what was being said. Significantly, nothing indicates that the officers saw any signs of physical conflict, visible injuries, brandished weapons, or a fearful victim. We appreciate that those facts present a close question, to which the trial court was duly sensitive. However, on those facts, we conclude that the officers' belief that a danger to life existed, which necessitated their immediate intervention, was not objectively reasonable. Specifically, once the officers reached the side of the house, their belief that immediate intervention was necessary was no longer supported by objective indicia that a life-threatening emergency existed. Rather, the circumstances demonstrated only that defendant and Turnage were engaged in a verbal, albeit heated, argument. Accordingly, we conclude that the state has failed to carry its burden to "make a strong showing that exceptional emergency circumstances truly existed."
Theft - Evidence of Value
Testimony by the victim that his replacement phone cost $50.00 was insufficient to establish the value of the stolen phone. There wasn't even any evidence that the phones were similar. In the Matter of H.S.
Attenuation
At the officer's request, defendant placed her wallet on the hood of her car just before she was handcuffed. At that point, the officer's only justification for searching the wallet was that he did not "know what's in the wallet" and did not "know if there's weapons, contraband, means of escape."
As to whether defendant's subsequent statements were attenuated from the illegal search of the wallet:
Here, after finding the methamphetamine in the wallet, the officer confronted defendant with what he had found, read defendant her Miranda warnings, and asked defendant several questions about her use of that drug. Based on the testimony at the hearing, those events occurred in rapid succession. Defendant's detailed incriminating statements concerning her use of methamphetamine and the amount and value of the methamphetamine immediately ensued. Under those circumstances, the minimal factual nexus between the unlawful search and defendant's incriminating statements is patent and the statements must be suppressed unless the state can demonstrate that the Miranda warnings were sufficient to attenuate the taint of the illegality.
PCR - Ag Murder Penalty Phase
The court affirms the PCR court that the attorney in this 1992 proceeding wasn't ineffective for, among other allegations, failing to present sufficient mitigation or adequately educate the jury. Montez v. Czerniak
