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''Read the full article for details about the following new cases:''
Stop - Attenuation
Confrontation Clause - Return of Service
PCR Prejudice - Consecutive Sentences

===Stop - Attenuation===

Obtaining defendant passenger's license and requesting a warrant check initiated a stop.

Returning the license, telling the passenger "Thank you for your cooperation" and then moving on to the driver, was not enough to end the stop. A reasonable person would continue to believe he was not free to leave.

A subsequent lawful search (based on driver's admissions, during his lawful stop, that they had been smoking meth) does not break the but-for chain of causation between illegal police conduct and evidence found. [http://www.publications.ojd.state.or.us/S056577.htm ''State v. Ayles.'']

That means the burden shifts to the state to establish that the discovery of the disputed evidence was only tenuously related to the illegal police conduct. [http://www.publications.ojd.state.or.us/S49825.htm ''State v Hall'']. Here, the evidence in question was defendant's unsolicited statement that the meth found in the subsequent lawful search was his. The statement was attenuated because it was made 30 minutes after the unlawful stop; it was volunteered; there was an intervening lawful stop; and there was an intervening lawful search. Affirmed.
[http://www.publications.ojd.state.or.us/S49825.htm ''State v. Lay'']

===Confrontation - Return of Service===

A sheriff's unsworn return of service form for a restraining order is not testimonial because it is routine, administrative and non-adversarial, unlike the forensic certificates in [http://scholar.google.com/scholar_case?q=melendez+diaz&hl=en&as_sdt=2,38&case=7136706767059629384&scilh=0 Melendez-Diaz] which were prepared as a substitute for testimony. Returns of service are much more like the intoxilyzer certificate in [http://www.publications.ojd.state.or.us/A136490a.htm Bergin] or the arrest warrant in [http://www.publications.ojd.state.or.us/A138008.htm Carter]. The dispositive consideration is "whether the documents were created for a prosecutorial purpose, not whether they had some future potential to be used in that manner if the need arose." [http://www.publications.ojd.state.or.us/A139914.htm ''State v. Tryon'']

===PCR - Prejudice - Consecutive Sentences===

A defendant is not prejudiced for PCR purposes by an attorney's failure to object to a lack of findings necessary for consecutive sentences if those findings could easily have been made by the trial judge. Here, there were separate victims that could easily have justified the sentence.
[http://www.publications.ojd.state.or.us/A143031.htm ''Pendergrass v. Coursey'']

{{wl-publish: 2011-04-05 21:00:00 -0700 | abassos }}

Blog:Case Reviews/Oregon Supreme Court 04-06-11 - Revision history

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