Oregon Appellate Ct - July 2, 2014

Revision as of 21:53, July 14, 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).

The following cases are still being edited:

Stops- Reasonable Suspicion- Totality of Circumstances- Officer has reasonable suspicion where facts corroborate, while not fully conforming to, an anonymous tip of criminal activity and the odor or marijuana is present

A stop by a police officer is different from a mere conversation in that it entails a temporary restraint of a person’s liberty and this restraint would violate constitutional protections unless supported by reasonable suspicion. A stop occurs when an officer intentionally and significantly interferes with a person’s liberty or freedom of movement or when a person has an objectively reasonable belief of this restriction in the circumstances. Reasonable suspicion requires a subjective belief by the officer, which is objectively reasonable, of criminal activity. This suspicion need not be based on personal observations of the officer but must be particularized. Here, a police officer responding to an anonymous complaint of marijuana use by four men near two cars, with descriptions of the cars, imitated a conversation with a group of three men standing near two cars which fit the descriptions from the tip and questioned them about drug use. When a second officer arrived, the original officer asked for consent to a pat-down search of the defendant and defendant produced a pipe with drug residue and consented to the search. The search produced a small bag of weed. After smelling weed in the defendant’s backpack, which was in one of the cars, the officer’s asked for and received consent to search the backpack after threatening to get a warrant. This search produced a larger amount of weed separated into small bags and a digital scale. Following his conviction, the defendant appealed claiming the stop was unconstitutional and the subsequent searches were thus also illegal. In question was at what point in the encounter the stop occurred and if this stop was supported by a reasonable suspicion of the officers. The court held that the encounter became a stop when the original officer asked for permission to conduct the pat-down search in the presence of the second officer after continued questioning following the denial of drug use by the suspects. Given the determination of when the stop took place the court considered if the stop was supported by reasonable suspicion on the part of the officer. The court held that the stop was supported by reasonable suspicion so the consent to the search of the backpack was valid. This was supported by the conforming details of the anonymous tip, specifically the descriptions of the cars, and the odor of marijuana referenced by the officers. The court placed special emphasis on the presence of the odor and noted that the odor itself was likely sufficient to support reasonable suspicion alone and, especially when combined with the elements of the tip, was sufficient to support reasonable suspicion on the part of the officers, even though the odor could not be specifically linked to a suspect individually. This case did make use of the exigent circumstances automobile exception for warrantless searches as the vehicles were never mobile during the encounter. Affirmed. State v. Acuna, 264 Or App___ (2014).

Self –Incrimination- Miranda Warnings- No compelling circumstances during a stop which last 20 minutes, takes place on a public sidewalk, and officer’s conduct is not coercive or aggressive

The factors considered in a compelling circumstances analysis include length of the encounter, the location, the defendant’s ability to terminate the encounter, and the amount of pressure exerted on the defendant. These factors are not exhaustive and the analysis must look to the overall atmosphere created. A lack of freedom for the defendant to leave is not dispositive of compelling circumstances. Here the defendant argued that the circumstances were compelling and invalidated his consent to the search of the backpack because he was not read his Miranda rights until after the backpack was searched. This claim was based on the presence of multiple officers, the increasing intensity of the encounter, and the aggressive manner of the second officer. The court rejected this argument noting the length of the stop, its occurrence on a public sidewalk, the sirens and lights on the police cars were not activated, force was never used or threatened, and the officer’s conduct never reached the point of being abusive or coercive. Because circumstances were never compelling until the defendant was actually placed under arrest, at which point he was Mirandized, there was no violation of the defendant’s right against self-incrimination. Affirmed. State v. Acuna, 264 Or App___ (2014).

Vouching- PE- It is not plain error for vouching statements to not be excluded sua sponte where the defense fails to object at trial and there is plausible inference of a strategic reason for this decision

It is impermissible vouching for one witness to comment on the credibility of another witness. Case law establishes a trial court’s duty to sua sponte excluded this testimony when it is encountered. This duty to excluded vouching testimony, which is plain error, may be overcome at the appellate level where the defense fails to object to the testimony and there is a plausible inference of a strategic reason for the defense to allow this vouching testimony, giving the appellate court discretion in determining if the testimony represents plain error. In this case the defendant was tried and convicted of a murder during a fight. The case was remanded by the Oregon Supreme Court and the defendant was tried and convicted again. Defendant appealed this conviction on a claim of impermissible vouching by one of the state’s witness. Defendant filled a pretrial motion to exclude all couching testimony which was granted. A detective who was a witness for the state vouched as to the credibility of another witness during his testimony and the defense failed to object and the court failed to sua sponte exclude the testimony. On review the appellate court ruled that the issue was preserved by the motion because it was to general to give the trial court the ability to correct the error immediately. The appellate court noted that trial courts have a duty to sua sponte excluded vouching testimony, as established under case law, and that a failure of this is usually plain error. However, the court declined to rule the occurrence plain error in this case because there was a reasonable inference which the appellate court could make that the decision not to object by the defense was a strategic one because elements of the couched for witness ‘s testimony supported their theory of the case. Given these fact the appellate court exercised their discretion and declined to declare the inclusion of the testimony as plain error. Affirmed. State v. Salas-Juarez, 264 Or App ___ (2014).

OEC 706 -Impeachment of Witness- Treatise for Impeachment- A learned treatise may be used to impeach the testimony of a witness, but not as substantive evidence, if an offer of proof is made

Under OEC 706 a learned treatise may be used to impeach the testimony of a witness as long as an offer of proof is made consistent with OEC 706. According to OEC 706 the permissible offers of proof are testimony or admission by the witness, other expert testimony, or judicial notice. Absent an offer of proof by one of the listed methods the exclusion of a treatise to impeach a witness is not reviewable. 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 of the defendant as the man who stabbed the victim. The defense sought to simply read from the treatise to impeach the testimony and this was successfully objected to by the prosecutor. The defense failed to offer proof of reliability and simply moved on in the questioning and subsequently appealed the exclusion of the treatise as plain error. The appellate court ruled that the failure to offer proof as required under OEC 706 was fatal to any challenge of the exclusion of the treatise as error because there was no record for the appellate court to evaluate. Affirmed. State v. Salas-Juarez, 264 Or App ___ (2014).