Oregon Court of Appeals 11-17-10
by: Abassos • November 16, 2010 • no comments
Read the full article for details about the following new cases:
- Search - Shoe Soles
- Escape II - Custody
- Statute of Limitations - Sex Offense Exception (Attempts)
- Interfering with a Peace Officer - Lawful Order
- Scientific Evidence - HGN
- Emergency Aid - True Emergency
- Probation Hearing - Hearsay (Confrontation/Due Process)
- Violation of a Stalking Protective Order - Free Speech
Search - Shoe Print
When officers look at the bottom of a suspect's shoes it is a search which requires a warrant or an exception. As Ryan Scott points out to new attorneys in the MPD trial skills class, this issue comes up much more often than one would think. In this case, officers entered defendant's holding cell at the police department, removed his boots and photographed them to compare to a boot print found at a crime scene. That information was later used as the basis for a search warrant. The trial court found that the search of the boots was unlawful as there was no warrant exception and the affidavit did not establish PC without the boot prints. However, the trial court found that the boot prints would inevitably have been discovered when defendant was booked into the county jail. The appellate court agrees with everything but the inevitable discovery as even when the boots were seized as part of an inventory at the jail, the police still would have needed a warrant to examine the boots for evidence of a crime. "An inventory is not an investigative search." Reversed. State v. Hartman
Escape II - "custody"
A person is in custody for the purposes of the Escape statute, ORS 162.155, if an officer has actually or constructive restrained the person for the purpose of charging him with an offense. Here, the officer ordered defendant to the ground because he believed defendant was fleeing from the scene of a crime. As the officer was telling dispatch "I think I have the guy", defendant punched the officer in the face and ran away. This is sufficient evidence of custody to get past MJOA. Defendant was constructively restrained by the order to remain on the ground and there was enough evidence for MJOA that the officer intended to arrest defendant. That same evidence can be used to impute that defendant knew he was in custody. State v. Alexander
Statute of Limitations - Sex Offense Exception - Attempts
ORS 131.125(2), which extends the statute of limitations for certain sex offenses when the victim was under 18, does not apply to attempted sex offenses. The statute sets forth a list of crimes which doesn't include attempts. If the legislature wanted to include attempted Rape I it would have said so. It was constitutionally inadequate assistance for the defense attorney to fail to move to dismiss an attempted rape which was more than 3 years old. PCR granted. Lamb v. Coursey
Interfering with a Peace Officer - "Lawful Order"
- ORS 162.247(1)(b) does not unconstitutionally require the jury to determine the law in deciding whether an order was "lawful". The court can direct the jury with respect to legal questions and present the predicate factual questions to the jury.
- The state does not need to prove that the defendant knew the order was unlawful. See State v Ruggles.
- In order to preserve an objection to a jury instruction or a failure to give a requested instruction, the defense must except "immediately after the court instructs the jury." That didn't happen here.
Scientific Evidence - HGN
When the officer fails to follow the protocol for the Horizontal Gaze Nystagmus test, the test lacks scientific validity and the state cannot establish a foundation for the evidence. Here, the officer failed to make the required number of passes, moved the stimulus at an improper speed and held the stimulus at a higher level than dictated by the protocol. Thus, the failure of scientific validity was fairly clear. However, this case seems to stand for the proposition that any deviation from the protocol means the test lacks scientific validity. Moreover, HGN evidence is "qualitatively different" than other kinds of evidence in a DUII case and is, therefore, unlikely to be harmless error. State v. Ingram
Emergency Aid - True Emergency
An officer may enter a residence without a warrant where the officer believes that assistance is necessary to protect someone's life and that belief is objectively reasonable. Here, the officers had been told by an anonymous caller and a neighbor that there had definitely been a physical fight inside the residence with the sounds of a person being "slammed around" and "one person hitting another". The officers heard people inside the residence but nobody would answer the door despite 20 minutes of knocking and requests. On these facts, there was a true emergency and the officers could enter. State v. Tabib
Probation Hearing - Hearsay - Confrontation/Due Process
Admission of hearsay at a probation violation hearing is determined under a balancing test: (1) the importance of the evidence, (2) the opportunity to refute the evidence, (3) the difficulty of obtaining the hearsay witness, and (4) traditional indicia of reliability. Here, the violation was for using alcohol and the only evidence was that the probation officer was told by a sheriff's deputy that the probationer smelled of alcohol and appeared to be intoxicated. The evidence was essential to the state's case. The probationer had no opportunity to refute the evidence. There was no apparent reason why it would be difficult to get a Douglas County Deputy into the Douglas County Circuit Court. And, the hearsay had very little indicia of reliability since not only did it not fall under any hearsay exception, it was an unsworn oral statement over the phone. Thus, defendant's Due Process right under the 14th Amendment to confront witnesses was violated. State v. Wibbens
Violation of a Stalking Protective Order - Free Speech
Where a violation of an SPO is based on speech, the state must show that the prohibited contact contained an unequivocal threat that instilled a fear of imminent and serious personal violence and is objectively likely to be followed by unlawful acts. Here, defendant sent some vaguely threatening e-mails that didn't meet the required standard. For example: "U want me 2 pay child support? Fuk u! So u can use my muny 2 fuk sum one else! Fuk u! I giv u something bitch!" Reversed. State v. Nguyen
