Oregon Appellate Ct - July 2, 2014

Latest revision as of 15:15, July 23, 2014

A Stop Occurs when Officer Prevents Defendant from Leaving

A stop occurs when defendant’s car is actually prevented from leaving by officer’s car, regardless of defendant’s subjective intent to leave or stay. Here, when the officer arrived to investigate a possible DUII, he pulled within one car length behind defendant’s truck parked at the end of her driveway. An unlawful stop occurred, regardless of defendant’s intention to stay, because defendant was not free to leave. Reversed and remanded. State v. Thacker, 264 Or App ___ (2014).

A Request for Identification May Constitute an Illegal Stop Under Oregon Law

A request for identification with accompanying authority to restrain may constitute an illegal stop under Oregon law. The Supreme Court in Backstrand, Highley, and Anderson addressed whether an officer’s request for identification constituted an unlawful seizure under Article I, Section 9, and, in all three cases, the Court held that the defendant was not illegally seized based on the totality of the circumstances. Here, after arresting every adult at a residence either for drug charges or immigration violations, the defendant arrived at the scene to take custody of the children. Instead of releasing the children to the defendant after checking identification, the officer proceeded to ask the defendant where he was from and to request additional identification. The defendant was unlawfully seized by the officer’s second request for identification, because a reasonable person in those circumstances would have believed that he was under investigation and would not feel free to leave. Reversed and remanded. State v. Zamora-Martinez, 264 Or App __ (2014).

An Officer’s Order to Exit a Restroom Constitutes a Stop

An officer’s order to exit a restroom constitutes a stop. A stop occurs when a reasonable person would believe that a law enforcement officer intentionally and significantly restricted, interfered with, or otherwise deprived the individual of his or her liberty or freedom of movement. Here, the officer banged on the bathroom door, identified himself as a police officer, and ordered the defendant to exit a café restroom. The defendant was unlawfully seized when the police ordered him to leave the restroom without reasonable suspicion of criminal activity, despite the fact that the manager could have asked the defendant to leave. Moreover, the police officer’s actions were not justified by the emergency aid exception, or, therefore, the community-caretaking statute, ORS 133.033. Reversed and remanded. State v. Lange, 264 Or App __ (2014).

Dependency Jurisdiction - Positive UAs During Pregnancy are Not Enough to Establish Either a Substance Abuse Problem or a Risk of Harm

Where mother tested positive for drugs during two prenatal exams while carrying E, passed two UAs in the hospital and failed to appear for another, there was insufficient evidence that mother had a substance abuse problem at the time of the jurisdictional hearing, and, in any case, there was no evidence that drug use by mother put E at a nonspeculative risk of serious loss or injury. Reversed and remanded. DHS v. E.M., 264 Or App __ (2014).

General Notice is Insufficient for Introducing Child Complainant Hearsay Statements

Notice of an intention to offer hearsay evidence must at least identify specific statements and the means of introduction in order to satisfy the particularity requirement of OEC 803(18a)(b). In this case, the defense had been notified of the state’s general intention to introduce hearsay evidence in a cover letter attached to 91 pages of discovery documents. At trial, the state introduced a video recording of an interview with the complainant at a child-abuse-assessment center. The court held that there was insufficient notice. Reversed and remanded. State v. Hernandez-Fabian, 264 Or App ___ (2014).

Reasonable Suspicion Requires that Observations Support a Reasonable Inference as to the Elements of the Crime

Subjective belief is not sufficient to constitute reasonable suspicion where factual observations do not support a reasonable inference that the elements of a crime are present. In this case, the defendant was parked on the shoulder of a public road and had been described by an informant as “suspicious”. The court held that there was no factual basis suggesting that the defendant was trespassing and that all evidence obtained after the stop should have been suppressed. Reversed and remanded. State v. Moore, 264 Or App ___ (2014).

Search Warrant to Out-of-State Business is Authorized as Long as the Court has Personal Jurisdiction

ORS 136.583 authorizes search warrants to out-of-state businesses as long as the requirements for personal jurisdiction are met. In this case, the court upheld a warrant issued to Yahoo, a California corporation. Affirmed. State v. Rose, 264 Or App ___ (2014).

Search Warrant For All Emails in Defendant’s Email Account is Sufficiently Particular

A search of all emails stored on an email account satisfies the particularity requirements of Article I, section 9 or the Oregon Constitution. In this case, the defendant was charged with the crimes of encouraging child sexual abuse and using a child in a display of sexually explicit conduct. The court upheld the warrant, stating that it specified both the place to be searched (the email account) and the items to be seized (evidence of the crimes). Affirmed. State v. Rose, 264 Or App ___ (2014).

Civil Commitments - Danger to Others - One Fight Plus Vague Threats Not Enough

Starting a fight followed by “a few vague threats of violence are not legally sufficient to constitute clear and convincing evidence that [defendant] is a danger to himself or others” and should, therefore, be civilly committed. In this case, defendant attacked a mental health client while receiving his voluntary monthly injection of antipsychotic medication. Defendant then later stated to his evaluator that he felt that in order to get treatment he had to hurt himself, others, or break property. The court holds that “one incident of starting a fistfight with another mental health client, under the circumstances here, is an isolated act of violence that is not sufficient to establish that [defendant] is an ongoing danger to others.” Reversed. State v. E.D., 264 Or App __ (2014).

Harmless Error - Witness Assertion of Rt to Remain Silent

In this case, the trial court encouraged a witness to invoke his right to remain silent by telling him that he could incriminate himself for the unlawful practice of law. The defense argued that the court had interfered with their witness. However, any error on the part of the trial court was harmless due to the fact that the same area of questioning was answered by another available witness. Reversed and remanded. State v. Buchalski, 264 Or App __ (2014).

A Stop Occurs When a Request for Consent to a Search is Combined With Aggressive Questioning and Multiple Officers

When an officer with backup questions persistently and aggressively and requests consent for a pat down search, it constitutes a stop. In this case, the stop was found to have occurred at the point when the officers asked for consent to search. Affirmed. State v. Acuna, 264 Or App____ (2014).

Corroboration with Informant Report Strengthens Reasonable Suspicion

Reasonable suspicion is strengthened when officer observations corroborate with informant report. In this case, the officer observed three men instead of the expected four, the odor of marijuana could not be linked to a particular individual, and the officer observed no indication of the quantity of marijuana. The court held that the observation of the odor substantiated reasonable suspicion as to all three men, particularly in light of the anonymous tip. Affirmed. State v. Acuna, 264 Or App____ (2014).

20-Minute “Aggressive” Stop without More Does Not Constitute Compelling Circumstances

A 20-minute stop on a public sidewalk with a stern officer and “aggressive” backup does not constitute compelling circumstances. In this case, the court holds that there was no violation of the defendant’s right against self-incrimination because there were no compelling circumstances until after the backpack was searched, when the defendant had already been placed under arrest and Mirandized. Affirmed. State v. Acuna, 264 Or App____ (2014).

Vouching Statements—Not Plain Error if There’s a Plausible Strategic Explanation for Defense’s Failure to Object

It is not plain error for the trial court to allow vouching testimony where there the defense failed to object to the testimony and is a plausible inference of a strategic explanation. In this case the defendant appealed a murder conviction on a claim of impermissible vouching by one of the state’s witness, which the defense failed to object to and the court failed to exclude sua sponte. This occurrence of vouching was not plain error because there was a reasonable inference that the defendant's decision to not object was a strategic one that supported the defense’s theory of the case. Affirmed. State v. Salas-Juarez, 264 Or App ____ (2014).

Preservation of Learned Treatise Requires Excerpts as Offer of Proof

To preserve a learned treatise, defendant must make an offer of proof consisting of a list of excerpts that would have formed the basis to question the witness. Here, the defendant sought to introduce a learned treatise concerning the “weapon focus” effect in eyewitnesses to impeach a detective’s testimony concerning eyewitness identification. Defendant's unsuccessful attempt to use a learned treatise was not preserved because no offer of proof was made. Affirmed. State v. Salas-Juarez, 264 Or App ____ (2014).