A few quick impressions about today's opinions
by: Ryan • October 18, 2011 • no comments
In a DUII case, the court found reasonable suspicion to extend the stop (in order to ask about alcohol consumption) in the following situation:
Defendant gave Ellingsburg the insurance form and license, but was unable to find his registration. Ellingsburg noticed that defendant's cheeks and neck were flushed and reddish in appearance. Ellingsburg also observed that defendant's movements were slow, lethargic, and "not real[ly] focused." When responding to Ellingsburg's questions, defendant spoke in an unusually low voice. Ellingsburg went back to his car with defendant's information to run checks.
One thing that came to mind - though there aren't enough facts to say if this argument would work - is the possibility that most of the observations (including the observations about speech made during the conversation) came during an unnecessary search for the vehicle registration. I say "unnecessary" because most police vehicles have access to a database that tells the officer whether or not the vehicle is properly registered and insured. The officer may have this information before he even makes the stop, after running the plate. If the officer does have such information prior to his contact with the defendant, the request for the vehicle registration is a meaningless exercise, and if the observations occurred during a meaningless exercise, then they can't be said to have occurred during "an unavoidable lull."
See Why do the police ask for your insurance and vehicle registration? for more discussion on this issue.
Next case.
As noted in Alex's summary, State v. Nelson has very good language about preservation and offers of proof. But my general advice is always to over-preserve if you can. Don't rely on Nelson as a reason not to call live witnesses in an offer of proof, if there is good reason to do so. (Some of this may depend on the quality of the witnesses you would call.) And consider an affidavit as well, not just an oral offer of proof.
My suggestion is based on having read many, many transcripts where I was the trial attorney, and the words on the page were never as thorough or as articulate as the words in my head. Calling a witness, preparing an affidavit in the calm of your office, these are ways to help insure that the evidence you seek to offer is in fact offered.
That's not the only good preservation language in Nelson. The court also stated:
As the Supreme Court recently reiterated, "This court has never required that each and every argument that has been asserted in writing must be repeated orally in court in order for the argument to be preserved." State v. Walker, 350 Or 540, 550, 258 P3d 1228 (2011). Nor was defendant required to take issue with the trial court's failure to address his argument. "Once a court has ruled, a party is generally not obligated to renew his or her contentions in order to preserve them for the purposes of appeal." Id.
This is another reason you should put as many arguments in writing ahead of time, including MJOAs and even uncomplicated motions in limine. By doing so, you dramatically improve the likelihood the issues will be adequately preserved, even if in the heat of debate, you don't say things as well as you could.
The last comment I want to make is about State v. Schneider. This is a trespass case, but it will likely have its biggest impact on burglary cases. The state often tries to prove "constructive trespass." For example, what if the defendant is a housekeeper who steals change off the dresser. The homeowner argues that "I wouldn't have given her consent to enter the bedroom if I knew she would steal." Some prosecutors believe that "if I had known" can somehow retroactively invalidate consent. I don't think there's any support for the argument that such "constructive revocation of consent" exists. (Implied revocation of consent does, but that's a different animal altogether.) After Schneider, the lawyer who is facing this argument will want to look at cases from around the country involving common-law trespass.
