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Oregon Supreme Ct - March 9, 2017

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by: Sara Werboff • March 10, 2017 • no comments

Search and Seizure - Automobile Exception Justified Search

The court concludes that the warrantless search of defendant's vehicle was justified under the automobile exception to the warrant requirement. Defendant was a driver for a drug transaction between Compton and a police informant. The informant arranged to meet Compton in a parking lot. Compton and the informant communicated via phone call and text, which the police monitored, as Compton was approaching the location. Other police officers waited around the parking lot to see the car approach. Police did not see the car drive up, but when they encountered it, it was parked across several parking spots and defendant was in the driver's seat with the engine running. A drug dog alerted and police searched the vehicle, finding methamphetamine in defendant's purse.

Defendant did not dispute that the officers had probable cause to search but argued that the car was not mobile because police did not see the car being driven when they first encountered it. The court rejects that argument, and explains that this case presents a straightforward application of its prior auto exception case law. In its case law, the court explains, it has drawn a line between cars that are mobile when first encountered and cars that a parked, unoccupied and immobile when first encountered. Here, the car had momentarily come to rest when police stopped it from resuming its journey. The officers were aware of the car's mobility because they heard Compton describe its movements.

Importantly, the court addresses defendant's argument that developments in technology such as telephonic warrants could eliminate the exigency underlying the automobile exception. The court holds that on this record, when police testified that it would take several hours to get a warrant, there was an exigency. However, the court "do[es] not foreclose the possibility * * * that changes in technology and communication could result in warrants being drafted, submitted to a magistrate, and reviewed with sufficient speed that the automobile exception may not longer be justified in all cases." And, the court does not foreclose that such a showing in an individual case.

Justice Walters concurred to emphasize the court's final point - that in an individual case, a defendant may show that there was no exigency because a warrant could have been obtained quickly.

State v. Andersen, 361 Or 187 (2017) (Kistler, J.) (Walters, J., concurring)

Mandamus - Court Orders Murder Indictment Dismissed With Prejudice on Former Jeopardy Grounds

The court concludes that an indictment against defendant charging him with multiple counts of murder and arson should be dismissed with prejudice under Article I, section 12's former jeopardy provision. Defendant and codefendant were charged with murder and arson for allegedly causing a man's death by starting a fire. In defendant's first trial, where he was tried along with a codefendant, the jury was impaneled and the state called its first eight witnesses. Mid-trial, the state revealed that it would be calling a previously undisclosed witness who would provide direct evidence that the fire was caused by arson. Both defendant's moved to exclude that evidence, but the trial court denied that motion. Codefendant then moved for a mistrial but defendant did not. Defendant argued that he did not want a mistrial because he liked the jury and he liked how the trial was going so far, but reiterated that the state's late evidence should be excluded. The trial court granted codefendant's mistrial and then sua sponte declared a mistrial in defendant's case. The state reindicted both defendants and defendant moved to dismiss the indictment citing his state and federal double jeopardy rights. The trial court declined to dismiss the indictment, finding that the state had met its burden of showing that there was a manifest necessity in declaring the mistrial.

When a mistrial is declared over defendant's objection, the court considered whether there was a manifest necessity to justify dismissal of the jury. There are two kinds of necessities: physical necessity, for example, when a judge falls ill during trial, or the "necessity of doing justice." Here, the trial court found that under the US Supreme Court's decision in Wade, where the court upheld a reprosecution in a court martial, a mistrial was justified in this case. The court rejects that reasoning, distinguishing Wade as a "physical necessity" case based on tactical problems during war time. Here, the trial court declared a mistrial after declining to exclude testimony of a state's witness. The court finds that two factors militate against a finding of manifest necessity. First, the state mistakenly proceeded to trial before identifying a key witness. The state was solely responsible for that mistake. Second, the state examined and defendant cross-examined eight of the state's witnesses, which created prejudice to the defense and an advantage to the state on retrial. The court holds that the trial court's mistrial order violated defendant's right to be free from reprosecution under Article I, section 12. The court further rejects the state's argument that defendant's objection to the mistrial was equivocal.

State v. Moore, 361 Or 205 (2017) (Baldwin, J.)