Oregon Court of Appeals 10-20-10
by: Abassos • October 19, 2010 • no comments
Read the full article for details about the following new cases:
- Search Warrant - Sufficiency of Evidence
- License Suspension - Breath Test Refusal
- Stop - Unavoidable Lull
- Mental State - Failure to Obey a Lawful Order
In addition to the following cases there was also a reversal in light of Lupoli here and two remands from the Supremes in light of Lennon here and here. As well as an annoying preservation case here, that stands for the proposition that if a judge suggests an argument, you should adopt it as your own.
Contents |
Search Warrant - Sufficiency of Evidence
Defendant's statement that he ordered a pornographic magazine from Denmark constituted sufficient PC for a warrant to search for child pornography when combined with the following other facts: that defendant was previously convicted of possession of child porn; that Denmark is one of the few places where child porn is legal; that defendant had a laptop with him; and that defendant had told hotel staff not to enter his room without at least 15 minutes notice. State v. Tropeano
License Suspension - Breath Test Refusal
"'Anything substantially short of an unqualified, unequivocal assent to an officer's request that the arrested motorist take the [breath] test constitutes a refusal to do so.'" The suspended person argued here that the officer didn't follow the proper procedure for declaring a refusal. The court finds such procedure irrelevant where the person is given the chance to take the breath test and doesn't do so. In this case, the person responded to the officer's request to take a breath test thusly: "No, you're an asshole. Put that in your report." Tidwell v. DMV
Police inquiries during an unavoidable lull in a traffic stop need not be justified by independent reasonable suspicion and may be unrelated to the basis for the traffic stop. Here, defendant was stopped for parking more than 12 inches from the curb. While the officer was waiting for the warrants check he asked about drugs and weapons and ultimately obtained consent to search. "There are no Article I, section 9, implications if an inquiry unrelated to a traffic stop occurs during a routine stop but does not delay it." Affirmed. State v. Hall
Mental State - Failure to Obey a Lawful Order
In a prosecution for refusing "to obey a lawful order" by a police officer, ORS 162.247(1)(b), the state does not have to prove that defendant knew that the order he refused to obey was lawful. The court finds that the legislature intended to dispense with a mental state for that element. State v. Ruggles
