Oregon Appellate Ct - May 6, 2015
by: Abassos • May 6, 2015 • no comments
(Created page with "<summary hidden> *'Search Warrant - Probable Cause - Possession of a Firearm After a Shooting * * * * </summary> '''Search Warrant - Probable Cause - Possession of a Firearm ...") |
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*The officer's training and experience told her that people involved in the unlawful use of firearms often leave evidence in their vehicles. | *The officer's training and experience told her that people involved in the unlawful use of firearms often leave evidence in their vehicles. | ||
However, such facts establish only a mere possibility, not a probability that evidence would be found in the vehicle. Ultimately, "all that the facts establish is that [the passenger] was a shooting victim and that defendant came to [the passenger's] aid. That does not give rise to a reasonable probability that either man committed a crime or possessed a firearm, let alone placed evidence of a firearm crime in defendant’s vehicle." Reversed and remanded. [http://www.publications.ojd.state.or.us/docs/A154948.pdf State v Williams], 270 Or App 721 (2015). | However, such facts establish only a mere possibility, not a probability that evidence would be found in the vehicle. Ultimately, "all that the facts establish is that [the passenger] was a shooting victim and that defendant came to [the passenger's] aid. That does not give rise to a reasonable probability that either man committed a crime or possessed a firearm, let alone placed evidence of a firearm crime in defendant’s vehicle." Reversed and remanded. [http://www.publications.ojd.state.or.us/docs/A154948.pdf State v Williams], 270 Or App 721 (2015). | ||
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| + | '''Burglary - Public Area of Hospital After Hours is Not Open to the Public''' | ||
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| + | For the purposes of Burglary, a building is closed to the public if it is restricted to certain people. For example, a tennis club is closed to the public even if members have free access to the building. [http://www.publications.ojd.state.or.us/docs/A131212.htm State v Etzel]. On the other hand, a wholesale florist was open to the public where the intent was to cater to wholesalers but there was little to indicate that others were excluded. [http://www.publications.ojd.state.or.us/docs/A131212.htm State v Pittman]. Here, defendant was a patient in the emergency room of a hospital who wandered past a security guard to a different area of the hospital and stole money from a purse. The presence of the security guard, unlike in Pittman, made it clear that the area was not open to the public. Normally, the security guards would not stop a patient from wandering between areas of the hospital, but in this case defendant had previously committed thefts at OHSU and had been told more than once that he was "forbidden to wander into other parts of the OHSU campus", aside from the emergency room. All official exclusion orders had been nullified with a change in OHSU policy. However, even if such orders were no longer exclusions for Trespass purposes, "it does not follow that had permission to be in areas of the OHSU campus that he had been repeatedly forbidden to enter." [http://www.publications.ojd.state.or.us/docs/A153263.pdf State v Shapiro], 270 Or App 701 (2015). | ||
Revision as of 11:26, May 7, 2015
Search Warrant - Probable Cause - Possession of a Firearm After a Shooting
The following facts do not constitute probable cause in an affidavit for a warrant to search a car after what was believed to be a gang shooting:
- The passenger was shot.
- The car was used to drive the passenger to the hospital.
- Defendant, the owner of the car, drove the passenger to the hospital.
- Defendant was nervous when questioned by police.
- Someone in a group of people around the passenger at the time of the shooting had returned fire.
- The passenger denied that anyone he was with fired a gun.
- The officer's training and experience told her that people involved in the unlawful use of firearms often leave evidence in their vehicles.
However, such facts establish only a mere possibility, not a probability that evidence would be found in the vehicle. Ultimately, "all that the facts establish is that [the passenger] was a shooting victim and that defendant came to [the passenger's] aid. That does not give rise to a reasonable probability that either man committed a crime or possessed a firearm, let alone placed evidence of a firearm crime in defendant’s vehicle." Reversed and remanded. State v Williams, 270 Or App 721 (2015).
Burglary - Public Area of Hospital After Hours is Not Open to the Public
For the purposes of Burglary, a building is closed to the public if it is restricted to certain people. For example, a tennis club is closed to the public even if members have free access to the building. State v Etzel. On the other hand, a wholesale florist was open to the public where the intent was to cater to wholesalers but there was little to indicate that others were excluded. State v Pittman. Here, defendant was a patient in the emergency room of a hospital who wandered past a security guard to a different area of the hospital and stole money from a purse. The presence of the security guard, unlike in Pittman, made it clear that the area was not open to the public. Normally, the security guards would not stop a patient from wandering between areas of the hospital, but in this case defendant had previously committed thefts at OHSU and had been told more than once that he was "forbidden to wander into other parts of the OHSU campus", aside from the emergency room. All official exclusion orders had been nullified with a change in OHSU policy. However, even if such orders were no longer exclusions for Trespass purposes, "it does not follow that had permission to be in areas of the OHSU campus that he had been repeatedly forbidden to enter." State v Shapiro, 270 Or App 701 (2015).
