Oregon Appellate Ct - Sept. 23rd, 2015

Latest revision as of 21:59, September 28, 2015

Attenuation - Bringing in A Second Officer Uninvolved in the Illegalities Does Not Itself Create Attenuation

Evidence is not attenuated from a prior illegality merely because it is obtained by a second officer uninvolved in the illegality. Here, a police officer was investigating a hit and run and illegally entered defendant's back yard in order to illegally peer in her window with a flashlight and illegally order her to come to the front door. Because he smelled alcohol on defendant's breath, he then asked a 2nd officer, who had just arrived, to begin a DUII investigation. The court rejects the trial court's reasoning that the second officer's DUII investigation need not be suppressed since the second officer was not involved in the initial illegal entry and she voluntarily agreed to talk with the officer and do the field sobriety tests. The question here is not one of voluntariness or good faith on the second officer's part. The question is whether the voluntary consent to comply with the DUII investigation broke the connection to the multiple illegalities committed by the first officer. It didn't. A DUII investigation would not have been started in the first place except that, by virtue of the illegal searches and the illegal seizure, the first officer was in a position to smell defendant's breath. Moreover, not only was there a mere 15 minutes between the officer's illegal actions and the voluntary consent to the DUII investigation, but the illegal seizure was still occurring at the time the second officer spoke with defendant. Additionally, evidence illegally gained (e.g. the smell of defendant's breath) was the only basis for requesting defendant's consent to perform field sobriety tests. In other words, the officers exploited the illegality to acquire consent. Accordingly, evidence of the DUII investigation should have been suppressed. State v Sanchez, 273 Or App 778 (2015).

Attorney Fees – State Must Present Evidence on Defendant’s Ability to Pay

“Imposition of court-appointed attorney fees based on a record that is silent regarding the defendant’s ability to pay the fees constitutes plain error.” Additionally, it is the state’s burden to prove defendant’s ability to pay. Here, the trial court imposed $2,440 in court-appointed attorney fees. Because the record does not contain sufficient evidence from which the trial court could determine that defendant “is or may be able to pay” the fees, it was plain error to impose those fees. State v. Kurtz 273 Or App 741 (2015).

PCR - Escape Clause Requires Evidence to Support It

A second, otherwise time-barred, petition for post-conviction relief requires evidence that the grounds for relief could not have been raised in the original petition. Here, petitioner did not submit any evidence at all in her 2012 petition regarding her failure to raise a Brady argument in her 1999 petitioner. She included affidavits from her trial attorneys and her trial investigator that impeachment evidence to which she was entitled was not given to the defense. However, the escape clause in ORS 138.550(3) places the burden on the petitioner to show that an omitted ground for relief comes within the escape clause. Since no evidence submitted speaks to the question of what the PCR lawyers knew in 1999, the petitioner failed to meet her burden. Ekloff v Steward, 273 Or App 389 (2015).

No Appellate Review of Plain Error Where Defendant Could have Easily Remedied the Error by Telling the Court

After noting the horrifying facts of the case that justified an upward departure of 124 months, the trial court denied defendant eligibility for leave, release and programs under ORS 137.750 without stating for the record the required substantial and compelling reasons for the denial. Even assuming the trial court committed plain error, because the defendant could have easily remedied the error by alerting the trial court to its failure to state the compelling reasons, the court refuses to exercise its discretion to review the error. State v. Opitz 273 Or App 745 (2015).