OSC to Define Stop from Numerous Angles

This wikilog article is a draft, it was not published yet.

by: Ryan • March 27, 2011 • no comments

The Oregon Supreme Court has just granted review (almost entirely at the request of the state) on a number of criminal cases that address whether a "stop" has taken place. The press release that describes the facts of the cases and the questions presented can be found here.

From Travis Eiva (elevated from the comments section by Alex):

"Well, the rule of four is in full effect. And, the question on review in Highley is particularly telling. Durham, who dissented in Hall and was joined by Gillette, has consistently stated his disapproval of the rule that consent subsequent to an unlawful stop caused by an unjustified warrants check is vitiated by the illegality of that stop. Ever since Linder and Kistler joined the OSC (who both were in the Hall dissent at the COA), he has consistently signalled in his opinions that he wants to revisit the issue. He figured he had his four votes to overturn Hall. Durham got that revisit in State v. Rodgers but lost the vote of Gillette to stare decisis. Gillette artfully explained: In Hall, a majority of this court announced the rule of law that we apply today. Justice Durham offered a spirited and extensive dissent from that rule, id. at 37-52, 115 P.3d 908 (Durham, J., dissenting), which I found persuasive. I therefore joined it. In the present cases, the dissent makes the same analytical and interpretive points that were made in the Hall dissent. Were we writing on a clean slate, I might still find that message persuasive. But we are not writing on a clean slate. The dissent's points, therefore, are-for me-an echo of an argument fairly waged, but lost. The spirit-the idea-of stare decisis calls for us to accept Hall, get behind it, and make it work. I understand that others feel differently (as they have every right to do) but I hear that call. So in Rogers, Durham found himself in the dissent again, calling for the reversal of Hall, but this time joined by Linder and Kistler. Now, Landau has replaced Gillette. And, as many know, Landau joined Kistler and Linder in the dissent of Hall at the COA. Will Landau show stare decisis the same respect as Gillette? Or will one of the first things he does upon joining the court is overturn six years of extensive criminal jurisprudence in Oregon? Regretfully, my guess is that Hall has a 10% chance of completely surviving (a warrant check without RS is an unconstitutional stop and subsequent consent is vitiated by that illegality), a 20% chance of half surviving (still an unconstitutional stop, but the illegality is attenuated by the subsequent consent or vice versa), and a 70% chance that everything about Hall meets the grave. But, who am I to say."