A Book from the Library of Defense

Arguments No One Would Make Except in a Courtroom, Part 2

From OCDLA Library of Defense
Jump to: navigation, search

by: Ryan • June 5, 2013 • no comments

In one of today's COA opinions, State v. Lovaina-Burmudez, the court describes the incident that lead to defendant's arrest. Very briefly, there was probable cause defendant committed a robbery a few days before and there was suspicion he had just committed another robbery. Moreover, shortly before being taken into custody, he was shot by police. His clothes, including his shoes, were seized while his wounds were being treated. The AG's office, on appeal, argued that there was probable cause to seize his clothes, because . . . well, because he'd been shot by the police and, you know, the officer must have had a good reason for doing so.

The state also makes a cursory argument that Doble had "probable cause" to seize the disputed evidence because defendant had been shot by a police officer. To the extent that the state argues that Doble's knowledge that defendant had been shot by a police officer equated to a reasonable belief that "defendant had done something to provoke the shooting" and, thus, his belongings were subject to seizure, we reject that argument without discussion.

The court adds:

Further, even assuming that, as an abstract matter, defendant's clothing and shoes might have some probative value in an internal review or other administrative proceedings pertaining to the circumstances of the shooting, that circumstance would not fall within any recognized exception to the warrant requirement of the Oregon Constitution.