Oregon Appellate Ct. - Dec. 3, 2014

Latest revision as of 17:39, December 18, 2014

Miranda – Voluntary Statements Obtained From Flagrant Violation of Miranda Must Be Suppressed

Voluntary statements obtained in violation of Miranda must be suppressed when 1) the violation is flagrant, 2) the temporal delay is insufficient to break the causal chain between the violation and the statement, 3) the defendant was in custody when the statement was made, 4) there were no mitigating circumstances that would lessen the flagrancy of the violation and 5) the admission was “inextricably intertwined” with officer’s violative conduct.

Here, deputies believed the defendant was under the influence and read him his Miranda rights. The deputies then asked defendant if he wanted to take a field sobriety test, which defendant refused, instead asking to speak to an attorney. The deputies responded that “at this point in the investigation defendant wouldn’t be able to speak to an attorney,” but that he’d be able to call one later on. The deputies reiterated their request for defendant to perform a field sobriety test. Defendant agreed. Subsequently, deputies called a DRE and performed a urinalysis that tested positive.

The COA found that the urinalysis should have been suppressed because first, the manner in which the deputies said that defendant could not speak to an attorney, even though he had just been read his rights and invoked, confused defendant and “exacerbated the effect of the unlawful questioning.” Second, there was no significant break between the violation and the procurement of the urine sample,” it occurred within minutes of the Miranda violation. Third, defendant was under “compelling circumstances,” when officers began questioning him about his use of intoxicants at a work release center. Fourth, no evidence was presented that would mitigate the Miranda violation. Lastly, the unlawful admissions that defendant was under the influence led directly to the urinalysis. Under these facts, the violation that led to defendant’s admissions was flagrant and the subsequent urinalysis should have been suppressed.

State v. Koch, 267 Or App ___ (2014).

Third Party Consent Search – Joint Occupant Can’t Consent to Search of Items in Shared Bedroom

To determine if a person has actual authority to consent to a search of a closed container in a jointly occupied space, the state must bring sufficient evidence to prove “beyond the mere fact of joint occupancy” that one occupant had “actual authority to consent to the search of items that are the property of another joint occupant.” Here, the state did not meet its burden by showing that mother who jointly occupied bedroom with defendant had authority to consent to a search of a wooden box. No evidence was presented that mother ever used the box or that defendant had ever consented to mother’s access or use of the box. Because mere joint occupancy wasn’t sufficient to show actual authority, the evidence recovered from the box had to be suppressed.

State v. Bonilla, 267 Or App ___ (2014).

Trespass – Owner of Mobile Home Park Can Exclude From Land, But Not Mobile Home on Land

Evicting a person from a mobile home park does not immediately give the landlord possession over the motor homes in the park. Here, defendant’s mother owned a motor home. Landlord evicted mother and any other occupants of the space. Defendant reentered the mobile home, which remained at the mobile home park. Because the landlord only had power to evict from the actual land, and not the mobile home itself, defendant could not be convicted of Trespass I, remaining in a dwelling, but rather only Trespass II for remaining on the premises.

State v. Klein, 267 Or App ___ (2014).

SPO – Neighborly Irritation is Not Grounds for an SPO

Standing in a driveway while talking loudly on a phone about how “it’s on” does not constitute threat of imminent harm against petitioner. Here, minor-petitioner’s father called the police on respondent for playing loud music. The next day, minor-petitioner overhead respondent talking in his driveway about how “it was open now, and the war was on.” Because these statements demonstrate nothing “more than the bluster of an irritated neighbor,” and did not characterize violence or abuse, there were insufficient grounds for an SPO.

W.M. v. Muck, 267 Or App ___ (2014).

SPO – Driving and Visiting Neighbors in Petitioner’s Neighborhood Not Threat to Personal Safety

An isolated instance of physical aggression combined with a presence in petitioner’s neighborhood does not justify an SPO. Here, respondent was accused of one act of physical aggression in 2007 and of driving his car in petitioner’s neighborhood—a neighborhood that respondent used to live and where he still had friends—and of parking in petitioner’s neighbor’s driveway. Taken together these instances did not combine to make benign conduct threatening. The petitioner did not have objectively reasonable apprehension in her personal safety.

K.E.A. v. Halverson, 267 Or App ___ (2014).

Search & Seizure – Appearing Intoxicated Is Not Sufficient to Justify a Dog Sniff

Calling for a drug dog when there is no reasonable suspicion that defendant is in possession of drugs unlawfully extends the stop. Here, defendant was pulled over for a traffic infraction. Although defendant’s demeanor gave officers reasonable suspicion to believe that he was under the influence of intoxicants, something more was required than mere intoxication to believe that there were drugs in the car that justified calling a drug dog. Because there were no facts besides the officers’ prior encounters with defendant and passenger that pointed to drugs being in the car, there was no reasonable suspicion to extend the stop after the officer completed the citations to allow the dog sniff.

State v. Miller, 267 Or App ___ (2014).