Case Reviews
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Oregon Appellate Court 06-01-11
by: Abassos • May 31, 2011 • no comments
Read the full article for details about the following new cases:
- Evidence - No Foundation for Scientific Evidence in Clear Case
- Speedy Trial - No Consent for Delay Where FTA at Indictment
- Merger - "Sufficient Pause" and Separate Convictions
- Probation - Indeterminate PPS Term Prohibited
- Restitution - Hit and Run Property/Injury
- Civil Commitment- Dangerousness
- Miranda - Compelling Circumstances
- DV Hearsay Exception - A Kid Is Not a "Cohabiting Person"
- Child Support - Income-Withholding and Federal Assistance
U.S. Supreme Court 05-31-11
by: Grapkoch • May 30, 2011 • no comments
Read the full article for details about the following new cases:
- Subjective Motivations and the Fourth Amendment
The Court handed down an opinion today in Ashcroft v. Al-Kidd, which asked whether the Fourth Amendment prohibits an officer from executing a valid material witness warrant (18 U.S.C. § 3144) with the subjective intent of conducting further investigation or preventively detaining the subject. Al-Kidd had argued that the Fourth Amendment was violated because the AG used material witness warrants as a pretext to detain suspects for whom he did not have probable cause to arrest. However, the Court holds that "an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive."
In reaching this conclusion, the Court explains that this case does not fall into any of the exceptions to the general rule that subjective motivations are irrelevant primarily because the judicial warrant at issue was based on "individualized suspicion." After first clarifying that "suspicion" is not limited to a belief "that the person suspected has engaged in wrongdoing"-but rather connotes a belief as to any connection with a crime- the Court explains that this case does not fall within the contours of Indianapolis v. Edmond, 531 U.S. 32 (2000) (prohibiting suspicionless, programmatic searches based solely a general interest in crime control). That is so because it was not the absence of probable cause that triggered Edmonds invalidating-purpose inquiry, but the checkpoints' failure to be based on "individualized suspicion."
Furthermore, neither the "special needs" nor the "administrative inspection" exceptions to the Fourth Amendment subjective motivation-rule apply to this case "[b]ecause those exceptions do not apply where the officer's purpose is not to attend to the special needs or to the investigation for which the administrative inspection is justified .The Government seeks to justify the present arrest on the basis of a properly issued judicial warrant-so that the special-needs and administrative-inspection cases cannot be the basis for a purpose inquiry here."
In sum, the Court appears to fashion a rule stating that a subjective motivation inquiry under the Fourth Amendment is foreclosed where the case involves a judicial warrant issued upon any individualized suspicion relating to law enforcement. Here, the judicial warrant established a qualifying suspicion that Al-Kidd was a material witness within the meaning of 18 U.S.C. § 3144 and hence subject to detention. Therefore, the subjective motivations of the applying officer were irrelevant.
More information on Ashcroft v. Al-Kidd can be found at the SCOTUSblog case page, available here.
Oregon Supreme Court 05-27-11
by: Abassos • May 26, 2011 • no comments
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- Sentence Vacated for Violation of Victims Rights
The Oregon Supreme Court ruled today that a trial judge is required to grant a victim's request to vacate a sentence where the judge has found that the victim's constitutional right to be informed in advance of sentencing was violated:
"The victim was entitled to a remedy by due course of law under Article I, section 42(3)(a). Her proposed remedy - vacating defendant's sentence and conducting a resentencing hearing - was permissible, in that it was not barred by the Double Jeopardy Clause. Because the remedy could be "effectuated after the disposition" of this criminal proceeding, the victim had not waived her rights under ORS 147.533. The trial court erred in not granting the victim the relief that she sought."
One key to this case is that the trial judge found that the victim's rights were violated. Diplomatically put, the record could have been more fully developed in that regard. What happened in this case is that the victim told the victim's advocate, a non-attorney employee of the District Attorney, that she wanted to attend critical stages of the proceedings. She was told to turn in a form to effectuate her request prior to March 2nd. Which she did, but not prior to a quick plea and sentencing that occurred on February 28th. The victim knew about the hearing date but was told by the advocate that she didn't need to be there.
The craziest thing about this case to me is that side conversations between the victim and any employee of the District Attorney apparently matter immensely. Yet the defense has no access to such information. As happens so often in criminal cases, the defense is simply blindsided. The defense is barred from talking to the complainant in most cases. The defense is barred from finding out what was said at Grand Jury. We're generally unable to talk to the officer who took the complainant's statements. The police aren't required to record the accusations. Which means that we are often hearing the complainant's actual story for the very first time at trial. This case feels like one more step in the direction of making critical information inaccessible to the defense.
Stay tuned for more on this case as the dust settles. It's also worth noting that one of the main tent presentations at the Annual Conference will be on victims rights. Just one more reason to attend.[http://www.publications.ojd.state.or.us/S059423.htm State v. Barrett]
U.S. Supreme Court 05-26-11
by: Grapkoch • May 25, 2011 • no comments
Read the full article for details about the following new cases:
- Court Moots Issue Concerning Warrants for Child Interviews
Earlier this term, the Court heard arguments in Camreta v. Greene. That case had asked whether the traditional warrant/warrant exception requirements that apply to seizures of suspected criminals should apply to an interview of the child in light of reports of child abuse, or whether a balancing standard should apply instead.
However, the Court-in an opinion available here-avoided the 4th Amendment question on mootness grounds:
In this case, the happenstance of S.G.'s moving across country and becoming an adult has deprived Camreta of his appeal rights. Mootness has frustrated his ability to challenge the Court of Appeals' ruling that he must obtain a warrant before interviewing a suspected child abuse victim at school. We therefore vacate the part of the Ninth Circuit's opinion that addressed that issue, and remand for further proceedings consistent with this opinion.
Two concurring opinions appear (authored by Scalia and Sotomayor (joined by Breyer)), as well as one dissenting opinion (Kennedy joined by Thomas). For the most part, those opinions are targeted at the majority's decision that a party who prevails due to qualified immunity may nevertheless seek certiorari on the constitutional question at issue so long as the issue is justiciable in all other respects.
For more infomation, the Camreta case page at SCOTUSblog is available here. Camreta v. Greene
Oregon Appellate Court 05-24-11
by: Abassos • May 23, 2011 • no comments
Read the full article for details about the following new cases:
- PV Revocations - Proper Grid Block / Revocation Not a Sentencing
- Attempted DUII - Jury Instruction
- DUII - Diversion Eligibility - Statutory Counterpart
- Southard Error-Two Victims/One Trial - Appellate Review
- Wiretapping Statute - Aggrieved Party
- Restitution - DA Must Present Evidence of Amount of Damages
- Restitution - Hit and Run
- Parole Revocation - Imposition of Original Sentence
- Designating Predatory Sex Offenders
- Using a Child in a Display of Sexually Explicit Conduct - Observers
Oregon Supreme Court 05-23-11
by: A stpierre • May 22, 2011 • no comments
Read the full article for details about the following new cases:
- Concealed Handgun Licenses - Medical Marijuana
- Recklessness - Summary Judgment
Oregon Supreme Court 05-19-11
by: Abassos • May 18, 2011 • no comments
Read the full article for details about the following new cases:
- Concealed Handgun Licenses - Medical Marijuana
- Recklessness - Summary Judgment
Oregon Appellate Court 05-18-11
by: Abassos • May 17, 2011 • no comments
Read the full article for details about the following new cases:
- Confessions - Statutory Exclusion for Promises of Leniency
- TPR - Integration
U.S. Supreme Court 05-16-11
by: Grapkoch • May 15, 2011 • no comments
Read the full article for details about the following new cases:
- Police-Created Exigent Circumstances
This morning, the Court issued an opinion in Kentucky v. King, which asked under what circumstances can lawful police action impermissibly "create" exigent circumstances that preclude warrantless entry? In response to the question, the Court announces the general rule that "[w]here, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed." The Court also notes, in passing, that "[t]here is a strong argument to be made that, at least in most circumstances, the exigent circumstances rule should not apply where the police, without a warrant or any legally sound basis for a warrantless entry, threaten that they will enter without permission unless admitted." Ginsburg offers the lone dissenting voice.
In this case, the officers were in pursuit of a suspect who had recently been seen conducting a drug transaction. After following the suspect into an apartment complex and hearing a door shut, the officers came upon two apartment doors, unsure of which the suspect had entered. Smelling a strong odor of marijuana emanating from the doorway on the left, the officers knocked "as loud as [they] could" and announced, "'This is the police'" or "'Police, police, police.'" After making these announcements, the officers heard loud noises inside as if something was being moved, and therefore they kicked in the door on the belief that drugs were being destroyed. They found a large quantity of drugs and paraphernalia; later, they found their initial suspect-in the other apartment.
Before applying the foregoing principles, the Court rejects outright at least four tests suggested by lower courts-and one offered by Respondent-in dealing with the doctrine of "police-created exigencies":
- The Court first rejects "the suggestion by the Kentucky Supreme Court that a subjective standard applies whereby courts ask whether the officers in question "deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement." The test, the Court stresses, is an objective one-as in virtually all Fourth Amendment circumstances.
- Next, the Court also rejects any application of a foreseeability test, under which courts would ask whether "it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances." Two factors persuade the Court to reject this approach: First, the rule was created on the premise that officers would be acting on some degree of suspicion in the first place; Second, because of the first factor, inquiring into foreseeability would create uncertainty for both investigating officers and lower courts.
- The Court also rejects a test that would automatically invalidate a search based on exigency where the police had probable cause and enough time to secure a warrant. After noting several reasons, the Court bluntly states that "[f]aulting the police for failing to apply for a search warrant at the earliest possible timeafter obtaining probable cause imposes a duty that is nowhere to be found in the Constitution."
- The Court moves on to reject a test that would hinge on whether the police acted "contrary to standard or good law enforcement practices (or to the policies or practices of theirjurisdictions)," because "[t]his approach fails to provide clear guidance for law enforcement officersand authorizes courts to make judgments on matters that are the province of those who are responsible for federal and state law enforcement agencies."
- And, finally, the Court rejects the Respondent's suggested test, which would invalidate a police-created exigency were the police "engage in conduct that would cause a reasonable person to believe that entry is imminent and inevitable." The Court stresses that this "nebulous and impractical" test, with all of its "subtleties," would be "nearly impossible" for courts to administer.
Then, applying its newly-minted test with a clear vision of the factors that do not apply, the Court finds no evidence in the record of this case to suggest "that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment." The simple announcements made by the police, although strict, were entirely consistent with the Fourth Amendment. Two more factors lead the Court to uphold the actions in this case. First, contrary to respondent's contention, there was neither sufficient evidence nor findings in the record to support the conclusion that the police "demanded" entry. And, second, although the police explained that they were going to enter regardless of compliance, this explanation came only after the presumed exigency arose.
More information on Kentucky v. King can be found at the SCOTUSblog case page, available here. Kentucky v. King
Oregon Appellate Court 05-12-11
by: Abassos • May 11, 2011 • no comments
Read the full article for details about the following new cases:
- Private Indecency - Jails - Reasonable Expectation of Privacy
- Endangering the Welfare of a Minor - "Permit" a Child to be Present
Oregon Supreme Court 05-05-11
by: Abassos • May 4, 2011 • no comments
Read the full article for details about the following new cases:
- Protective Sweeps - Reasonable Suspicion of Danger
The Oregon Supreme Court finds that police officers were not justified in conducting a protective sweep of a house because the officers did not have reasonable suspicion that there was an immediate threat of physical injury. The Court addresses each relevant fact and finds that individually and as a whole they are too vague to support a protective sweep.
The officers went to a house to conduct a knock and talk based on information they receieved from unnamed informants that the house was a drug house and "wanted persons" were staying there. While in the house with the consent of the person who answered the door, the officers allegedly became concerned for their safety because defendant and another person walked out of the house without obeying an order to stop. They are stopped by an officer outside and are thereafter cooperative. The officers had been told by the person who answered the door that there was only one other person in the house. Such evidence does not amount to a reasonable suspicion of immediate danger:
- There was nothing in the record about the reliability or credibility of the informants.
- The fact that two people walked out of the house in a manner that "resembled" fleeing was at most suspicious, not indicative of danger.
- The fact that at least one more person was present than indicated by the person who answered the door was also not indicative of danger.
- The state's allegation that the house was "associated with" another house known as a drug house was not supported by articulable facts and, in any case, also would not indicate immediate danger.
- The state's allegation that the person who answered the door was "associated with" people who reside at a known drug house was also too vague since there was neither evidence that those other people were dangerous nor that they had ever been in the instant house.
Either alone or together such "facts" do not support a protective sweep. Thus, when the officer saw drugs in defendant's bedroom during the sweep, it did not fall under the plain view exception. And when the officer used that information during a suspicionless stop to gain consent to search from defendant, it was not a voluntary consent.
DeMuniz, Durham, Walters and Balmer in the majority. Kistler and Linder dissent. Gillette and Landau didn't participate in the decision. State v. Guggenmos
Oregon Appellate Court 05-04-11
by: Abassos • May 3, 2011 • no comments
Read the full article for details about the following new cases:
- Merger - UUV and PSV Merge
- Merger - Theft
- Merger - DCS and DCS w/in 1000 feet
- TPR - Appeals
U.S. Supreme Court 05-02-11
by: Grapkoch • May 1, 2011 • no comments
Read the full article for details about the following new cases:
- Death Penalty Instructions Upheld
The Court finally issues a criminal opinion today, albeit a per curiam reversal of the Sixth Circuit's decision to grant habeas relief. The case is Bobby v. Mitts, which addressed (1) Whether the State of Ohio offends due process by using the same penalty-phase jury instruction affirmed by this Court in Smith v. Spisak; and (2) Whether clearly established federal law extends the holding of Beck v. Alabama to the penalty phase of a capital trial. In a disposition available here, the Court answers both questions in the negative.
As to the first question, the Court stands by its conclusion in Spisak that the instructions at issue are not contrary to Mills v. Maryland, 486 U.S. 367 (1988) (instructions invalid where jurors precluded from considering mitigating factors if such factors are not unanimously found). Here, the scheme instructed jurors that
"When all 12 members of the jury find by proof beyond a reasonable doubt that the aggravating circumstances in each separate count with which [Mitts] has been found guilty of committing outweigh the mitigating factors, if any, then you must return such finding to the Court."
According to the Court, there simply is not "a substantial possibility that reasonable jurors, upon receiving the judge's instructions in this case, and in attempting to complete the verdict form as instructed, well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance." Smith v. Spisak, 130 S.Ct. 676 (2010) (quoting Mills).
As to the second question, the Court stresses the important distinction between the absence of juror alternatives at the guilt and sentencing stages of trial. The instructions at issue here informed the jury that, if they made the requisite findings,
"then you must recommend to the Court that the sentence of death be imposed on [Mitts] .On the other hand, [if] after considering all the relevant evidence raised at trial, the evidence and testimony received at this hearing and the arguments of counsel, you find that the state of Ohio failed to prove beyond a reasonable doubt that the aggravating circumstances with which [Mitts] was found guilty of committing outweigh the mitigating factors, you will then proceed to determine which of two possible life imprisonment sentences to recommend to the Court."
Below, the Sixth Circuit held that the state court's validation of this command was contrary to the decision in Beck v. Alabama, 447 U.S. 625 (1980) (the death penalty may not be imposed "when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict").
The Court emphatically rejects that conclusion, stressing that "[t]he concern addressed in Beck was 'the risk of an unwarranted conviction' created when the jury is forced to choose between finding the defendant guilty of a capital offense and declaring him innocent of any wrongdoing." That principle is not directly applicable for the purposes of habeas. Furthermore, the Court notes, even if Beck were directly applicable, informing the jury that its choice was between death and a life sentence gives sufficient assurances to assuage its central concern.
More information on Bobby v. Mitts can be found at the SCOTUSblog case page, found here.
Oregon Appellate Court 04-27-11
by: Abassos • April 26, 2011 • no comments
Read the full article for details about the following new cases:
- Prosecutorial Misconduct - Comment on Defendants Failure to Present Evidence
- Upward Departur e- UUW
- 404(3)- Prior Similar Acts to Prove Lack of Consent
- Stop - Ashbaugh
- Venue - Prostitution Over the Phone
- Corroboration - Accomplice Testimony
- Civil Commitment - Dangerousness to Self
Oregon Appellate Court 04-20-11
by: Abassos • April 19, 2011 • no comments
Read the full article for details about the following new cases:
- Stop (Hall) - Taking ID or information can be a stop under Ashbaugh
- Aiding and Abetting - Concurrence
- Stop - Reconsideration in light of Ashbaugh
- Self-Incrimination - Compelling Circumstances
- Coercion - Attempt
- Attempted Aggravated Murder - Intent Instruction
- Exploitation/Attenuation - Minimal Factual Nexus
- Restitution Within 90 Days - Good Cause to Extend
U.S. Supreme Court 04-20-11
by: Grapkoch • April 19, 2011 • no comments
Read the full article for details about the following new cases:
- No Monetary Damages for Inmates Under RLUIPA
Criminal opinions from the Court are still hard to come by these days, but you figure that, at some point, they're going to have to release a few. For now, you'll have to make do with today's opinion in Sossamon v. Texas, which addresses whether states and state officials can be subjected to damages (as opposed to injunctions) for violations of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§2000cc to 2000cc-5.
In pertinent part, Section 3 of RLUIPA provides that "[n]o government shall impose a substantial burden on the religious exercise" of an institutionalized person unless the government demonstrates that the burden "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering" that interest. Enforcement of this provision against states and local political subdivisions affords "appropriate relief against a government."
Writing for the majority, Justice Thomas concludes that this statutory scheme does not provide for monetary damages because
"RLUIPA's authorization of 'appropriate relief against a government,' §2000cc-2(a), is not the unequivocal expression of state consent that our precedents require. 'Appropriate relief' does not so clearly and unambiguously waive sovereign immunity to private suits for damages that we can 'be certain that the State in fact consents' to such a suit."
As you might expect from a good, old-fashioned Thomas opinion, the case involves a strict application of the Eleventh Amendment and principles of sovereign immunity.
More information on the case can be found via SCOTUSblog's case page.'
Oregon Appellate Court 04-13-11
by: Abassos • April 12, 2011 • no comments
Read the full article for details about the following new cases:
- Speedy Trial
- Robbery I - "Use" of a Weapon
- Prior Bad Acts - Intent
- 200% rule - Gun Minimum
- Assault II - By means of a dangerous weapon
- Failure to Register as a Sex Offender - No Duty to Provide Address Verification
- Failure to Register as a Sex Offender - Venue
Oregon Supreme Court 04-07-11
by: Abassos • April 6, 2011 • no comments
Read the full article for details about the following new cases:
- Probable Cause - Dog Sniffs
- Notice of Appeal - Supplemental Judgment
Two criminal rulings from the Oregon Supreme Court today, one of them substantive and one of them procedural:
Oregon Supreme Court 04-06-11
by: Abassos • April 5, 2011 • no comments
Read the full article for details about the following new cases: Stop - Attenuation Confrontation Clause - Return of Service PCR Prejudice - Consecutive Sentences
→ read the full summaries...Oregon Appellate Court 03-30-11
by: Abassos • March 29, 2011 • no comments
Read the full article for details about the following new cases:
- OEC 609(3) Prior Conviction - 15 year period
- Rape/Sex Abuse: Forcible Compulsion - Mental State
- Due Process - Fresh Pursuit Act
- Merger means Merger of Conviction
