Oregon Supreme Ct - August 11, 2016

by: Sara Werboff • August 11, 2016 • no comments

Third-Degree Escape - Definition of Custody Includes "Constructive Custody"

The supreme court holds that third-degree escape, ORS 162.145(1) occurs when "a person runs away from a police officer who has lawfully asserted authority to control a person's freedom in the course of carrying out an arrest." Put another way, third-degree escape may occur "when a person escapes custody during the course of an arrest or when the police attempt to restrain someone pursuant to their authority to make an arrest."

When confronted by police, defendant ran. The police called "Stop, police!" several times. Defendant argued that because he did not run after he was arrested, the state did not prove he was in custody. After analyzing the text, context, and legislative history, the supreme court rejects defendant's argument that an escape can only occur after a completed arrest, and concludes that the state need only show that defendant was constructively arrested. The court further holds that merely shouting at defendant to stop was insufficient to constructively arrest defendant. Note that the court thinks that a police officer shouting "Stop, you're under arrest!" is probably sufficient to constructively arrest someone.

State v. Davis, 360 Or 201 (2016) (Landau, J.)