Oregon Appellate Ct - May 13, 2015
by: Abassos and Kit Taylor • May 13, 2015 • no comments
(Created page with "<summary hidden> * * * * * * * * * * </summary> '''Probable Cause - Behavior Intended Protect One's Privacy Rights Cannot Contribute to PC''' A person's behavioral assertion...") |
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| − | * | + | *Probable Cause - Behavior Intended to Assert One's Privacy Rights Cannot Contribute to PC |
| − | * | + | *Waiver of Counsel is Not Knowing If There Is Only an Abstract Appreciation That It Is Risky |
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| − | '''Probable Cause - Behavior Intended | + | '''Probable Cause - Behavior Intended to Assert One's Privacy Rights Cannot Contribute to PC''' |
| − | A person's behavioral assertion of a constitutionally protected privacy right may not be part of an officer's probable cause calculus. Here, for example, "defendant’s behavior of tightly clutching her purse and refusing a search manifested a desire to protect the privacy of the item and, as such, was an assertion of her constitutional rights." Because the behavior was | + | A person's behavioral assertion of a constitutionally protected privacy right may not be part of an officer's probable cause calculus. Here, for example, "defendant’s behavior of tightly clutching her purse and refusing a search manifested a desire to protect the privacy of the item and, as such, was an assertion of her constitutional rights." Because the behavior was an assertion of her right to privacy, it could not be evidence of a crime for probable cause purposes: |
:"When an individual seeks to protect an item and openly asserts his or her privacy rights, that behavior and assertion is neither innately shifty nor sinister—rather, it is constitutionally protected. And, '[a]llowing the police to conduct a search on the basis of the assertion of a privacy right would render the so-called right nugatory.' [https://scholar.google.com/scholar_case?q=Brown+the+assertion+of+a+privacy+right+would+render+the+so-called+right+nugatory.&hl=en&as_sdt=4,38&case=5269997015334060773&scilh=0 State v Brown]" | :"When an individual seeks to protect an item and openly asserts his or her privacy rights, that behavior and assertion is neither innately shifty nor sinister—rather, it is constitutionally protected. And, '[a]llowing the police to conduct a search on the basis of the assertion of a privacy right would render the so-called right nugatory.' [https://scholar.google.com/scholar_case?q=Brown+the+assertion+of+a+privacy+right+would+render+the+so-called+right+nugatory.&hl=en&as_sdt=4,38&case=5269997015334060773&scilh=0 State v Brown]" | ||
Other than defendant's actions toward her purse, the only other support for probable cause of possession of drugs was: | Other than defendant's actions toward her purse, the only other support for probable cause of possession of drugs was: | ||
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* a scale in plain view in defendant's purse | * a scale in plain view in defendant's purse | ||
The evidence of past and recent drug use doesn't even amount to reasonable suspicion because of the stacking inferences necessary to get from past drug use to current possession. The scale brings the case closer to probable cause, but other cases have found "a similar constellation of facts" to be insufficient for probable cause. See, for example, [https://scholar.google.com/scholar_case?q=state+v+lane+scale&hl=en&as_sdt=4,38&case=6960982733514587302&scilh=0 State v Lane] (marijuana residue, film canister, scale, nervousness and agitation). Reversed and remanded. [http://www.publications.ojd.state.or.us/docs/A147777.pdf State v Barker], 271 Or App 63 (2015). | The evidence of past and recent drug use doesn't even amount to reasonable suspicion because of the stacking inferences necessary to get from past drug use to current possession. The scale brings the case closer to probable cause, but other cases have found "a similar constellation of facts" to be insufficient for probable cause. See, for example, [https://scholar.google.com/scholar_case?q=state+v+lane+scale&hl=en&as_sdt=4,38&case=6960982733514587302&scilh=0 State v Lane] (marijuana residue, film canister, scale, nervousness and agitation). Reversed and remanded. [http://www.publications.ojd.state.or.us/docs/A147777.pdf State v Barker], 271 Or App 63 (2015). | ||
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| + | '''Waiver of Counsel is Not Knowing If There Is Only an Abstract Appreciation That It Is Risky''' | ||
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| + | A person has not knowingly waived counsel unless the person understands the specific risks involved in proceeding without an attorney. Here, the trial court did not review any specific risks, instead merely indicating in the abstract that risks were involved. Also, defendant did not speak English as his primary language and the colloquy indicated that defendant was not fully understanding the conversation. Nothing else, in the totality of the circumstances, established understanding. Defendant had no prior experience with the criminal justice system, for example, and had been largely unwilling to communicate with his appointed attorneys. Reversed and remanded. [http://www.publications.ojd.state.or.us/docs/A153446.pdf State v Kim], 271 Or App 196 (2015). | ||
Revision as of 10:31, May 16, 2015
Probable Cause - Behavior Intended to Assert One's Privacy Rights Cannot Contribute to PC
A person's behavioral assertion of a constitutionally protected privacy right may not be part of an officer's probable cause calculus. Here, for example, "defendant’s behavior of tightly clutching her purse and refusing a search manifested a desire to protect the privacy of the item and, as such, was an assertion of her constitutional rights." Because the behavior was an assertion of her right to privacy, it could not be evidence of a crime for probable cause purposes:
- "When an individual seeks to protect an item and openly asserts his or her privacy rights, that behavior and assertion is neither innately shifty nor sinister—rather, it is constitutionally protected. And, '[a]llowing the police to conduct a search on the basis of the assertion of a privacy right would render the so-called right nugatory.' State v Brown"
Other than defendant's actions toward her purse, the only other support for probable cause of possession of drugs was:
- evidence of historical drug use
- evidence of very recent drug use
- a scale in plain view in defendant's purse
The evidence of past and recent drug use doesn't even amount to reasonable suspicion because of the stacking inferences necessary to get from past drug use to current possession. The scale brings the case closer to probable cause, but other cases have found "a similar constellation of facts" to be insufficient for probable cause. See, for example, State v Lane (marijuana residue, film canister, scale, nervousness and agitation). Reversed and remanded. State v Barker, 271 Or App 63 (2015).
Waiver of Counsel is Not Knowing If There Is Only an Abstract Appreciation That It Is Risky
A person has not knowingly waived counsel unless the person understands the specific risks involved in proceeding without an attorney. Here, the trial court did not review any specific risks, instead merely indicating in the abstract that risks were involved. Also, defendant did not speak English as his primary language and the colloquy indicated that defendant was not fully understanding the conversation. Nothing else, in the totality of the circumstances, established understanding. Defendant had no prior experience with the criminal justice system, for example, and had been largely unwilling to communicate with his appointed attorneys. Reversed and remanded. State v Kim, 271 Or App 196 (2015).
