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Search Warrants, Cell Phones and Particularity

by: Ryan Scott • October 25, 2017 • no comments

A murder conviction was reversed last week, on the grounds that the search warrant for the cell phone was overbroad. State v. Allen.

Allen relied on the Court of Appeals opinion, State v. Mansor. Mansor is currently under advisement at the Oregon Supreme Court.

For an overview of the issue by an assistant district attorney, see this very new New York Law Journal article on the topic. It's useful if you're looking for out-of-Oregon opinions on the topic.

Its somewhat bland conclusion:

Given the advances in technology and the centrality of computers in the everyday lives of most people, computer searches have come under increased judicial scrutiny. The particularity clause of the Fourth Amendment has been asserted by the defense with new vigor in the context of digital raids authorized by search warrants. For the most part, though, courts continue to uphold reasonable specificity in particularity of the items to be seized that gives sufficient guidance to executing officers, and leaves them little discretion. Nevertheless, it is certain that this area of the law will continue to be scrutinized by the courts, and evolve in light of technological developments.

Another Trial Tip

by: Ryan Scott • October 25, 2017 • no comments

Assume your client is arrested for X. He is charged with something flowing out of the arrest, but before that something is litigated, he is acquitted of whatever he was originally arrested for. The jury is entitled to hear about the arrest, despite the acquittal, because it's highly relevant to the subsequent charges. Do the jurors get to hear he was acquitted?

“[T]he admission of evidence of other offenses in which the defendant has been involved without disclosing that he was acquitted tends to brand him as a ‘criminal’ and exposes him to the danger that the jury might lose sight of the presumption of innocence and the high level of proof required to rebut it.”

Smith, 271 Or at 299.

Trial Tip o' the Day

by: Ryan Scott • October 25, 2017 • no comments

When is it abuse of discretion for a judge to give a "witness-false-in-part" instruction over the defendant's objection?

Although defendant told the police something different about her behavior the night of the offense than she testified to at trial, in her trial testimony, she admitted that she had lied to the police earlier. In response to questions on cross-examination, defendant explained that she had lied about Brett being in the bedroom because she did not want him to get into trouble for drinking in violation of his probation. Thus, the identified inconsistency does not tend to show that there was anything about defendant’s testimony that was false—let alone consciously false—when measured against her earlier statements. Instead, defendant’s testimony in this case demonstrates quite clearly that her prior statements were false, not that her testimony was false. In other words, there is nothing about defendant’s statements to the police that contradicts her testimony at trial that she had lied in making those statements. In short, defendant’s statements at the scene do not provide a basis from which the jury could find that defendant consciously testified falsely, and the court abused its discretion in giving the instruction on that basis.”

Milnes, 256 Or App at 708-09 (emphases omitted).

Carpenter: A primer

by: Ryan Scott • October 23, 2017 • no comments

From Forbes:

Opening quote:

On November 29, 2017, the Supreme Court is scheduled to hear argument in one of the most important digital privacy cases in recent years. Carpenter v. United States has its origins in a string of armed robberies in Michigan and Ohio that occurred over a period of several months in late 2010 and early 2011. As part of the resulting criminal investigation, the government requested and received a court order to obtain what is often called “cell site location information” (CSLI) for the mobile phone owned by Carpenter, who was one of the suspects in the investigation. The CSLI information, which placed Carpenter’s phone at a location within several miles of the crime scenes, was presented along with video evidence and eyewitness testimony at a federal district court trial in which Carpenter was convicted. After the Sixth Circuit upheld the conviction, Carpenter appealed to the Supreme Court, arguing that the government’s warrantless acquisition of CSLI violated his Fourth Amendment rights.

SW for Cell Phone Sufficiently Limited to Texts from One Person

by: Ryan Scott • October 12, 2017 • no comments

Per fourthamendment.com:

Defendant was a police officer who was suspected of sexual battery of a student ride along. There were text messages, and a search warrant was obtained for his cell phone. The lack of a time frame for the text messages didn’t make the warrant violate the Fourth Amendment because it was limited to one person’s text messages. State v. Swing, 2017-Ohio-8039, 2017 Ohio App. LEXIS 4392 (12th Dist. Oct. 2, 2017).

Admitting your client's guilt over his objection

by: Ryan Scott • September 28, 2017 • no comments

SCOTUS granted review today of a case that SCOTUSblog describes as follows:

In McCoy v. Louisiana, the justices will consider the case of Robert McCoy, who was convicted of first-degree murder for the shooting deaths of his estranged wife’s son, mother and step-father. After firing his public defender, McCoy was represented by Larry English, an attorney paid by his parents. As with his public defender, McCoy maintained his innocence in meetings with English and “emphatically opposed” English’s proposal to concede that McCoy was guilty in the hope that he would be spared the death penalty. McCoy attempted to remove English and represent himself, but the trial court rejected his request on the ground that it came too late: His trial was only a few days away.
When the trial began, English did indeed concede McCoy’s guilt, over interruptions from McCoy. McCoy was convicted and sentenced to death. He appealed (among other things) English’s concession of guilt, arguing that it violated his constitutional right to have the effective assistance of an attorney. The Louisiana Supreme Court denied his appeal, but now the Supreme Court will consider his claim.

A good pro-privacy case involving a pole cam

by: Ryan Scott • September 25, 2017 • no comments

Summary from FourthAmendment.com:

Defendant had a reasonable expectation of privacy that society is now prepared to recognize as reasonable from installation of a pole camera across the street from his house and monitoring it for two months based solely on a tip that he was involved in drugs. The state, however, gets the benefit of the good faith exception because this is the first time this happened. State v. Jones, 2017 SD 59, 2017 S.D. LEXIS 115 (Sept. 20, 2017).

The rest of the details here.

Important case regarding additional testing of item lawfully seized (but without a search warrant)

by: Ryan Scott • September 20, 2017 • no comments

The case is State v. Sines. It is a significant, thorough opinion on a particularly complicated search and seizure issue.

This opinion is almost certainly helpful in cases where the police lawfully seize a firearm without a warrant (during a traffic stop, for example) and then do an arguably unlawful ballistics test, also without a search warrant. The facts in Sines are much, much different, but the analysis would be similar.

SW needed to get results of hospital blood draw

by: Ryan Scott • September 14, 2017 • no comments

Defendant’s blood draw in the hospital was for medical purposes, and a search warrant was required to get access to that information. Trial court affirmed. State v. Saunders, 2017-Ohio-7348 (5th Dist. 2017).

Key quote:

Therefore, we hold that an OVI suspect in Ohio enjoys a reasonable expectation of privacy in his or her medical records “that pertain to any test or the result of any test administered to the person to determine the presence or concentration of alcohol, a drug of abuse, or alcohol and a drug of abuse in the person's blood, breath, or urine at any time relevant to the criminal offense in question,” which are stored securely in a hospital. R.C. 2317.022(B). It follows that, prior to obtaining such medical records a law enforcement officer must comply with the warrant requirement of the Fourth Amendment.

The Bad Science Behind Campus Response to Sexual Assaults

by: Ryan Scott • September 8, 2017 • no comments

Great article by Emily Yoffe can be found here.

Key quotes:

In meeting this federal demand, some schools have come to rely on the work of a small band of self-styled experts in the neurobiology of trauma who claim that sexual violations provoke a disabling, multifaceted physiological response. Being assaulted is traumatic, and no one should expect those who have been assaulted to have perfect recall or behave perfectly rationally, but this argument goes much further. It generally goes like this: People facing sexual assault become terrified, triggering a potent cascade of neurotransmitters and stress hormones.This chemical flood impairs the prefrontal cortex of the brain, impeding victims’ capacity for rational thought, and interferes with their memory. They may have significant trouble recalling their assault or describing it coherently or chronologically. The fear of imminent death may further elicit an extended catatonic state known as “tonic immobility,” rendering them powerless to speak or move—they feel “frozen.”
As a result, those adjudicating sexual-assault allegations are told, the absence of verbal or physical resistance, the inability to recall crucial parts of an alleged assault, a changing story—none of these factors should raise questions or doubt about a claim. Indeed, all of these behaviors can be considered evidence that an assault occurred.

But . . .

I talked with Richard McNally, a psychology professor at Harvard and one of the country’s leading experts on the effects of trauma on memory, about the assertions Campbell made in her presentation. He first said that because assaults do not occur within the laboratory, “there is no direct evidence” of any precise or particular cascade of physiological effects during one, “nor is there going to be.” But there is plenty of evidence about how highly stressful experiences affect memory, and much of it directly contradicts Campbell. In his 2003 book, Remembering Trauma, McNally writes, “Neuroscience research does not support [the] claim that high levels of stress hormones impair memory for traumatic experience.” In fact, it’s almost the opposite: “Extreme stress enhances memory for the central aspects of an overwhelming emotional experience.” There is likely an evolutionary reason for that, McNally said: “It makes sense for natural selection to favor the memory of trauma. If you remember life threatening situations, you’re more likely to avoid them.” Notably, survivors of recent horrific events—the Aurora movie-theater massacre, the San Bernardino terror attack, the Orlando-nightclub mass murder—have at trial or in interviews given narrative accounts of their ordeals that are chronological, coherent, detailed, and lucid.

New Overbreadth Opinion (Seizing Too Many Electronic Devices)

by: Ryan Scott • September 7, 2017 • no comments

Basing its decision on the analysis of State v. Friddle, the Court of Appeals issued a very good opinion today in State v. Burnham.

Key quote:

From the affidavit, a magistrate could infer that, because defendant’s cellular phone was used to take incriminating photographs—and defendant posted those photos on his Facebook page—there was a possibility that the photos had been transmitted to at least some of his other electronic devices. Yet, the contents of the affidavit failed to establish that is was more likely than not that such transmission had occurred with respect to all of his devices. See id. at 138 (“ ‘[T]he standard of probability requires the conclusion that it is more likely than not that the objects of the search will be found at the specified location.’ ” (Quoting State v. Williams, 270 Or App 721, 725, 349 P3d 616 (2015) (emphasis in Friddle).)). Thus, as in Friddle, because the affidavit contains no specific information to support an inference that data existing on one device would have been transmitted to other devices belonging to defendant, the affidavit was insufficient to support probable cause to examine those other devices.

Defeating Knock-n-Talk with a No Trespassing Sign?

by: Ryan Scott • September 6, 2017 • no comments

That's the issue in a recent petition for cert you can find here.

Notable Passcode Case: Applicable to DUIIs?

by: Ryan Scott • September 5, 2017 • no comments

From fourthamendment.com: CAAF: It violated Miranda to order soldier provide password to unlock properly seized cell phone

The website described the holding as follows: "It violated a Mirandized suspect’s Fifth Amendment rights to direct him to enter the passcode into a properly seized cell phone to unlock it for a search."

I haven't read the opinion yet, but the following is either explicit or easily inferred: (1) in-custody defendant, (2) gov't has lawful right to search cell phone, (3) providing the passcode is testimonial and (4) defendant had asked for a lawyer.

This puts me in mind of the recent Banks case. In that case, the Oregon Court of Appeals held that the refusal to take a breath test was testimonial evidence. However, it did not find a constitutional violation in using his refusal against him.

I wonder if Banks would have turned out differently if Mr. Banks had asked for a lawyer. (Or not been Mirandized.) In such a situation, you'd have (1) an in-custody defendant, (2) government has lawful right to obtain a breath sample, (3) refusing to provide a breath sample is testimonial, and (4) defendant had asked for a lawyer.

I'd love for a DUII attorney to weigh in on that situation.

A Blakely Challenge to Sentencing that Doesn't Involve an Upward Departure

by: Ryan Scott • August 30, 2017 • no comments

Don't forget that

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More upward departure challenges

by: Ryan Scott • August 30, 2017 • no comments

Whenever you receive an upward departure notice, you should review the relevant OARs, which can be found here.

This is because the OARs may provide a defense that isn't obvious from the notice. For example, the OAR on vulnerable victim is quite explicit that the defendant must have known of the specific vulnerability. Further, it's not enough that the person is "vulnerable" but that the vulnerability "increased the harm or threat of harm." That will not be true in all cases. I also like the use of the word "extreme." In the context of age, I'm inclined to think that 14 isn't an extreme age. Nor is seventy.

(B) The offender knew or had reason to know of the victim's particular vulnerability, such as the extreme youth, age, disability or ill health of victim, which increased the harm or threat of harm caused by the criminal conduct.

Also of note is the limitation on the "multiple victims" enhancement.

(G) The offense involved multiple victims or incidents. This factor may not be cited when it is captured in a consecutive sentence.

In certain cases, that second sentence is key.

Racketeering Sentencing Win!

by: Ryan Scott • August 30, 2017 • no comments

Today, in State v. Ortega-Gonsalez, the COA held that the charges that also serve as predicates to a racketeering charge are from the same criminal episode as the racketeering charge.  Therefore, the trial court erred by reconstituting the defendant's grid score.

This holding can have an even greater impact on other racketeering defendants.  Let's assume the predicate offenses are all felony thefts or UUVs.  Assume also the defendant has no criminal history.  If all the UUVs/Thefts arise from the same criminal episode as the racketeering charge, the defendant doesn't become internally REPO.  Ergo, he stays presumptive probation for all the UUV/Theft counts.

Also, for cases involving one victim (e.g., the state, if all the underlying charges are DCS counts), then the 200% rule also kicks in if the crimes are from one criminal episode.

Upward Departure Challenges

by: Ryan Scott • August 29, 2017 • no comments

Here are two important challenges to upward departure factors. They're basic, but often forgotten by even experienced defense attorneys.

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Two Significant Search Warrant Opinions: Computers

by: Ryan Scott • August 22, 2017 • no comments

The first one involves a warrant for a defendant's entire Facebook account. A link to the opinion, and a discussion of its significance by Orin Kerr, can be found here.

Mr. Kerr's discussion of the second opinion can be found here. The title of this article is: "D.C. Circuit forbids seizing all electronic storage devices in computer warrant cases"

Additional discussion here from fourthamendment.com, under the heading, "DC Cir.: The mere fact a person has a cell phone isn’t PC to search it; must be PC evidence would be found"

Are violent offenders redeemable?

by: Ryan Scott • August 15, 2017 • no comments

Worthwhile article on this topic from Slate.

And here is a notable opinion piece on release violent felons from prison.


Does the gov't need a warrant to get historical cell-site information"

by: Ryan Scott • August 15, 2017 • no comments

The US Supreme Court may answer that question this year. All the pro-privacy amicus briefs can be found here.

Results of the 2016 Criminal Law Quiz

by: Ryan Scott • August 14, 2017 • no comments

The quiz is here.

The results are brutal this year. The ECSA/criminal episode issue was decided against the defense in State v. Dulfu, although the Oregon Supreme Court has granted review.

The good news appears to be limited to (4)(b).

That said, most of the remaining issues have yet to be addressed by the COA. But virtually all of the undecided issues are working their way through the appellate courts, so there is reason to think we'll get answers in 2018.

When ambiguity favors the defendant

by: Ryan Scott • August 14, 2017 • no comments

I have often noted that ambiguity in the law favors the state. If a defendant honestly can't tell whether or not crimes arise out of the same criminal episode, then he won't know the maximum sentence he might fact. Consequently, his decision to go to trial or accept a plea offer must factor in the worst case scenario, i.e., the sentence he might get if the court finds multiple criminal episodes. The prosecutor has little reason to make the same calculation from the other side. Maybe she'll make the offer marginally better because the defendant has a plausible claim to one criminal episode, but the consequences of being wrong -- arguing for multiple criminal episodes and losing -- is going to be of minimal significance.

This situation plays out in various ways every date in the criminal justice system. I don't include situations where the defendant doesn't know if he's going to be found guilty or not. But I do include situations where there is a genuine dispute over whether -- if the defendant actually did the acts he's accused of -- he's actually guilty of an offense, because there is some ambiguity over what the law actually says.

But there is one situation where the ambiguity in the law provides a potentially huge upside to the defendant. And that is when he has a slightly outside-the-box type of legal argument that could result in dismissal of most or all of the charges, and because of the relative novelty of the argument, there is no clear case law one way or the other. Because it's a longshot, the prosecutor scoffs and gives it little weight, generally assuming -- with good reasons -- that most judges are highly risk-adverse and aren't likely to grant the defendant's motion.

→ continue reading...

Told to leave purse in impounded car

by: Ryan Scott • August 14, 2017 • no comments

Not an unusual fact situation described here. From fourthamendment.com:

Defendant was a passenger in a car stopped for expired tags. She should have been allowed to keep her purse when she got out of the car. Instead, she was told to leave it in the car, and then it was searched in the car when the car was impounded. Suppressed. State v. Campbell, 2017 Iowa App. LEXIS 777 (Aug. 2, 2017).

See also:

When defendant consented to a search of her car, she attempted to remove her purse, and the officer had to honor that as a limitation on the consent. He ordered her to put it back, and that was mere acquiesce to a claim of authority. State v. Greub (Aug. 29, 2017).


Very Interesting Federal Opinion: Search Warrant and Hard Drive

by: Ryan Scott • July 28, 2017 • no comments

The opinion is here.

Key quote:

It is unlikely that the Government would argue it is constitutionally reasonable to search a home based on a warrant previously issued for a crime the homeowner had already been convicted of, and to also direct the searchers to look for evidence of offenses not named in the warrant. In this case, however, the Government asserts the right to do just that, but for a portable hard drive (thumb drive) rather than a home. We recognize the differences between a home and a thumb drive and the unique challenges in applying the Fourth Amendment in a digital context. See generally Josh Goldfoot, The Physical Computer and the Fourth Amendment, 16 Berkeley J. Crim. L. 112 (2011); Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005). But the Fourth Amendment compels us to treat them the same in this case. We hold that the military judge did not abuse his discretion in concluding that evidence of an offense not named in the warrant was outside the scope of the warrant and must be suppressed. Furthermore, based on the facts found by the military judge, we conclude, as a matter of law, that the search was not constitutionally reasonable under the particular circumstances of this case. Accordingly, we affirm the United States Army Court of Criminal Appeals (ACCA).

Another noteworthy quote:

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Dog sniff in legal MJ state

by: Ryan Scott • July 16, 2017 • no comments



Next 20 Articles

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Oregon Appellate Court – November 15, 2017

by: Mary A. Sell • November 21, 2017 • no comments

CRIMES

  • Failure to Report as a Sex Offender—Classification of juvenile adjudication determines whether failure to report is a felony
  • Tampering with Physical Evidence—MJOA—Plain Error

CUSTODIAL INTERROGATION/MIRANDA

  • Custodial Interrogation/Miranda—Compelling Circumstances

EVIDENCE

  • Evidence—ORS 136.444—Corroboration of Accomplice Testimony
  • Evidence—Prior Bad Acts Evidence—Harmless Error
  • Evidence—Vouching—Plain Error

JUVENILE DEPENDENCY/DELIQUENCY

  • Juvenile Delinquency—Sentencing—Conditions of Probation

SEARCH & SEIZURE

  • Motion to Suppress—Warrantless Searches—Record insufficient to establish that blood alcohol dissipation constituted an exigent circumstance

PCR/HABEAS CORPUS

  • PCR—PCR judgment—Remanded for PCR court to fashion relief that will cure petitioner’s actual prejudice
→ read the full summaries...

Oregon Appellate Court – November 8, 2017

by: Mary A. Sell • November 21, 2017 • no comments

CRIMES

  • Crimes—Theft & Criminal Mischief—Property of an owner
CRIMINAL PROCEDURE
  • Criminal Procedure—Right to Self-Representation—Mid-trial waiver of counsel
EVIDENCE
  • Evidence—Remand for OEC 403 balancing
SEARCH & SEIZURE 
  • Motion to Suppress—Probable Cause of Traffic Violation—Failure to Drive Within a Lane
SENTENCING
  • Sentencing—Restitution—Type of victim for which court may award restitution to health insurer
→ read the full summaries...

Oregon Appellate Court – November 1, 2017

by: Mary A. Sell • November 9, 2017 • no comments

DEFENSES

  • Defenses—Extreme Emotional Disturbance—Preservation
  • Evidence—OEC 403—Record demonstrates balancing
JUVENILE DEPENDENCY/DELINQUENCY  
  • Juvenile Dependency—Jurisdictional Judgment—Evidentiary Bases
  • Juvenile Dependency—Required Findings—Absence of Findings Not Plain Error
  • Juvenile Dependency—Jurisdiction—Scope of jurisdictional bases
PAROLE/PPS
  • Parole—Evidence—Mitigating Evidence Relevant in Juvenile Offender Parole-Release-Date Hearing
PCR/ HABEAS CORPUS
  • PCR—Contents of Judgment—Admissibility of evidence on retrial not a proper subject of PCR judgment
SEARCH & SEIZURE
  • Motion to Suppress—Preservation—Sufficiency of one-page motion
  • Motion to Suppress—Warrantless Seizure—Officers lacked probable cause to arrest defendant after officer safety concerns dissipated
  • Motion to Suppress—Warrantless Search and Seizure—Officer Safety, Voluntary Consent, Emergency-Aid, and School Safety Exceptions
SENTENCING
  • Sentencing—Fines and Fees—DUII conviction fee not included within statutory maximum fine for Class A misdemeanor
  • Sentencing—Fines and Fees—Error to impose premarked $255 DUII conviction fee on form judgment
  • Sentencing—Fines and Fees--Plain error to impose court-appointed attorney where record silent as to defendant ability to pay
→ read the full summaries...

Oregon Appellate Court – October 25, 2017

by: Msell@mpdlaw.com • October 30, 2017 • one comment

CRIMINAL PROCEDURE

  • Criminal Procedure—Concurrence Instruction—Plain Error
EVIDENCE
  • Evidence—Witness-False-in-Part Instruction
  • Evidence—Remand for OEC 403 balancing
  • Evidence—Relevance—Evidence of Acquittal
JUVENILE DEPENDENCY/JUVENILE DELINQUENCY
  • Juvenile Delinquency—Third-degree Assault—Sufficiency of Evidence
SEARCH & SEIZURE
  • Motion to Suppress—Warrantless Searches—Abandonment of Privacy Right
  • Motion to Suppress—Issue Preclusion—Relitigating suppression in another jurisdiction
  • Motion to Suppress—Right Against Self-Incrimination—Invocation and Waiver
→ read the full summaries...

Oregon Appellate Court-- Oct 19, 2017

by: Msell@mpdlaw.com • October 25, 2017 • no comments

[edit] OREGON COURT OF APPEALS

CRIMES
  • Stalking Protective Order—Sufficiency of Evidence
  • Witness Tampering—Sufficiency of Evidence
CRIMINAL PROCEDURE
  • Criminal Procedure—Improper Joinder
PCR/HABEAS CORPUS
  • PCR—Inadequate Assistance of Counsel—Vouching
SEARCH & SEIZURE
  • Motion to Suppress—Probable Cause of Traffic Violation—Failure to Drive Within a Lane
SENTENCING 
  • Sentencing—Subcategory Facts—Timing of Submission to Jury
→ read the full summaries...

Oregon Supreme Court-- Oct 19, 2017

by: Msell@mpdlaw.com • October 25, 2017 • no comments

[edit] OREGON SUPREME COURT

EVIDENCE
  • Evidence—Right to Confrontation—Witness Unavailability
PCR/HABEAS CORPUS
  • PCR—Dismissal of Meritless Petition—Appellate Review
→ read the full summaries...

Oregon Appellate Court – October 11, 2017

by: Msell@mpdlaw.com • October 13, 2017 • no comments

EVIDENCE

  • Evidence—Insanity Defense—Timeliness of Notice
SENTENCING
  • Sentencing—Negotiated Plea Agreements—Trial Court’s Authority to Depart
→ read the full summaries...

Oregon Appellate Court--October 4, 2017

by: Msell@mpdlaw.com • October 6, 2017 • no comments

CIVIL COMMITMENT

  • Civil Commitment—Advice of Outcomes—Plain Error
  • Civil Commitment—Advice of Rights—Plain Error
EVIDENCE
  • Evidence—OEC 403—Sufficiency of record for appellate review
JUVENILE DEPENDENCY/DELIQUENCY
  • Juvenile Delinquency—Sentencing—Conditions of Probation
SENTENCING 
  • Sentencing—Restitution—CARES evaluation
→ read the full summaries...

Oregon Appellate Court – Sept 27, 2017

by: Msell@mpdlaw.com • October 2, 2017 • no comments

CRIMES/CONTEMPT

  • Violating a Stalking Protective Order—MJOA
  • DUII—Attempted DUII instruction
PCR/HABEAS CORPUS
  • Post Conviction Relief—Statute of Limitations—Two-year limitation period applies to successive petitions
SEARCH & SEIZURE
  • Motion to Suppress—Lost property exception—Officer lacked objectively reasonable belief that cell phone was lost
SENTENCING
  • Compensatory Fine—Plain Error
  • $2,000 Fine for Third DUII—Plain Error
  • Merger—Notice of "sufficient pause
  • Merger—Felon in possession of a firearm--Plain Error
→ read the full summaries...

Oregon Appellate Court--September 20, 2017

by: Msell@mpdlaw.com • September 26, 2017 • no comments

CRIMES/CONTEMPT

  • Failure to Report as a Sex Offender – Classification of offense underlying juvenile adjudication determines whether failure to report is a misdemeanor or felony
EVIDENCE
  • Evidence—Affirmative Defense of Extreme Emotional Disturbance
PAROLE/PPS
  • Parole & Post-Prison Supervision—Substantial Evidence—Ex Post Facto
SEARCH & SEIZURE
  • Search & Seizure—Automobile Exception—Connection with a crime
  • Search & Seizure—Reasonable Suspicion—Suspicion of DUII diversion violation not a lawful basis to stop
  • Search & Seizure—Search—Warrantless testing that exceeds scope of third-party search unlawful
→ read the full summaries...

Oregon Appellate Court--September 13, 2017

by: Msell@mpdlaw.com • September 26, 2017 • no comments

[edit] OREGON SUPREME COURT

SEARCH & SEIZURE
  • Motion to Suppress—Stop – Youth was stopped by show of authority
SENTENCING
  • Sentencing—Probation/PPS Violation

[edit] OREGON COURT OF APPEALS

CRIMES/CONTEMPT
  • Hindering Prosecution—MJOA—Sufficient evidence to prove defendant knowingly “concealed” a person
  • Search and Seizure—Probable Cause—Officer had probable cause to believe that defendant had committed crime of hindering of prosecution
EVIDENCE
  • Evidence—Vouching
  • Sentencing—Statutory maximum sentence
JUVENILE DEPENDENCY/DELINQUENCY
  • Juvenile Dependency – Court erred in changing permanency plan based on facts extrinsic to court’s jurisdiction
PAROLE/PPS
  • Parole & Post-Prison Supervision—Substantial Evidence and Substantial Reason
PCR/Habeas Corpus
  • Post-Conviction Relief—“Suitability” of PCR Counsel—Trial court abused its discretion in denying substitution of counsel based on incorrect understanding of counsel’s duties following a Church motion
  • Post-Conviction Relief—Statute of Limitations—Evidence that grounds for PCR could not reasonably be raised in original or amended petitions sufficient to survive summary judgment under escape clause to two-year limitations statute'
→ read the full summaries...

Oregon Appellate Ct - Sept 7, 2017

by: Msell@mpdlaw.com • September 21, 2017 • no comments

CRIMES/CONTEMPT

  • Restraining Orders – “Interfering” with Petitioner – Insufficient Evidence of Interference
CUSTODIAL INTERROGATION/MIRANDA
  • Miranda Right to Counsel – Equivocal Invocation of Right to Counsel
EVIDENCE
  • Self-Incrimination – Error to Introduce Defendant’s Invocation at Trial
PCR/HABEAS CORPUS
  • Post-Conviction Relief – Ineffective Assistance of Counsel – Guilty Pleas
PER CURIAMS
  • Appeal and Review – Harmless Error
  • Fines and Fees – "Mandatory State Amt"
SEARCH AND SEIZURE
  • Search and Seizure – Search Warrants – Warrant for Electronic Devices was Overbroad
  • Search and Seizure – Probable Cause – Traffic Violations – Impeding Traffic
→ read the full summaries...

Oregon Appellate Ct - Aug 30, 2017

by: Sara Werboff • September 5, 2017 • no comments
  • Evidence – Use of Force Policies Relevant for Impeachment of Officers for Motive/Bias
  • Trial Court Procedure – Motion to Suppress Met Requirements of UTCR
  • Trial Court Procedure – Motion to Suppress Did Not Meet Requirements of UTCR
  • Search and Seizure – Seizure and Search of Defendant Not Justified by Officer Safety Exception
  • Search and Seizure – During Inventory, Folded Paper Did Not Announce its Contents
  • Sentencing – Trial Court Erred in Calculating Criminal History Score for Predicate Offense – Trial Court Did Not Err in Imposing Consecutive Sentences
  • Post-Conviction Relief – Judgment Did Not Conform to Requirements
  • Per Curiam – Disorderly Conduct - Evidence Insufficient to Prove Defendant Made “Unreasonable Noise”
  • Per Curiam – Petition for Reconsideration Denied
  • Per Curiam – Plain Error Attorney Fees
→ read the full summaries...

Oregon Appellate Ct - Aug 23, 2017

by: Sara Werboff • August 28, 2017 • no comments
  • Search and Seizure – Automobile Exception Applied to Warrantless Search
  • Traffic Violation – Defendant’s Conduct of Coordinating Farm Sales Fell Under Exception to Use of Mobile Communications Device
  • Restitution – Restitution for Missing Items Not Proper – Remand for Additional Findings for Damage to Police Vehicle
  • Fines and Fees – Compensatory Fine Properly Included Losses Incurred Outside Time Period Covered by Guilty Plea – Court Would Not Exercise Discretion to Correct Error as to Amount of Fine
  • Search and Seizure – Warrantless Entry Into Home Not Justified by Emergency Aid Exception – Defendant Did Not Consent
  • Forged Permanent Resident Card and Social Security Card Were Not “Valuable Instruments”
  • Contempt – Sufficient Evidence to Prove Defendant Knowingly Violated Court Order
  • Post-Conviction Relief – Remanding for Consideration of Whether Counsel Made a Considered Choice Not to Introduce Bias Evidence and Whether Counsel’s Failure to Contact Petitioner Prejudiced Him – Counsel’s Bar Disciplinary Records Were Admissible
  • Post-Conviction Relief – Statutory Interpretation – Unloaded Firearm Does Not Qualify as Deadly Weapon
  • Per Curiam – Error to Instruct Jury to Consider 9-1-1 Statements As Substantive Evidence
  • Per Curiam – Jury Instructions – Plain Error in Failing to Instruct on Culpable Mental State
  • Per Curiam – Any Error in Admitting Evidence was Not Prejudicial
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Oregon Appellate Ct - Aug 16, 2017

by: Sara Werboff • August 18, 2017 • no comments
  • Restitution – Comparative Fault Rules Do Not Apply in Restitution Proceeding
  • Joinder – Any Error in Consolidating of Charging Instruments was Harmless
  • Post-Conviction Relief – PCR Court Erred in Allowing Hearsay Evidence – PCR Court Erred in Applying Prejudice Standard
  • Search and Seizure – Police Unlawfully Extended Traffic Stop
  • Per Curiam – Post-Conviction Relief – PCR Court Erred in Sua Sponte Granting Summary Judgment on Brady Claim
  • Per Curiam – Post-Conviction Relief – PCR Court Lacked Jurisdiction to Enter Order
  • Per Curiam – Juvenile Dependency – Insufficient Evidence to Support Jurisdiction
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