Case Reviews
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Oregon Appellate Ct - Sept. 4, 2014
by: Abassos and Francis Gieringer • September 4, 2014 • no comments
- Felony Assault IV - Prior Conviction Includes a Plea Into a Diversion Program
- Criminal Trespass - Reasonable Belief That Eviction Order was Unlawful is Irrelevant
- Jury Instructions - Failure to Instruct on Defendant's Theory
- Reasonable Suspicion Based on Citizen Informant Motel Clerk
- Generalized Desire to Commit Crime Weeks After Incident Irrelevant to Intent
- Motion for Continuance to Find a Subpoenaed Witness
- Former Speedy Trial - Judicial Explanation of Long Delay Due to Docket Congestions May Create Reasonableness
- PCR - IAC - Failure To Challenge the State's Theory When There's No Risk to Defendant
Oregon Supreme Ct - Aug. 28, 2014
by: Abassos and Francis Gieringer • August 28, 2014 • no comments
Consent Following Illegal Police Action - The Second Coming of State v Hemenway
"When a defendant has established that an illegal stop or an illegal search occurred and challenges the validity of his or her subsequent consent to a search, the state bears the burden of demonstrating that (1) the consent was voluntary; and (2) the voluntary consent was not the product of police exploitation of the illegal stop or search." In determining whether an officer exploited his illegal conduct to obtain consent, a court should look at the totality of the circumstances, including: 1) the purpose and flagrancy of the violation, 2) the temporal proximity between the “unlawful conduct and consent, and 3) the presence of any “intervening or mitigating circumstances.” In articulating this new rule, the Supreme Court "disavows" the minimal factual nexus test from State v Hall. The court applies the new test in 3 cases:
- In State v. Musser, 356 Or 148 (2014), the officer exploited an illegal stop to obtain defendant’s consent to search items in her purse when the officer stopped defendant without reasonable suspicion by saying, “Hey, I need to talk to you.” While the defendant was reaching for her ID, the officer spotted two Crown Royal pouches and asked for defendant’s consent to search the pouches. Because the stop was generalized and without reasonable suspicion, and the conduct of the officer was such a severe interference with defendant’s Article I, section 9 rights, there was an exploitative connection between the illegality and the consent, "notwithstanding the fact that the police conduct was restrained and courteous." (quote from State v Unger at 85).
- In State v. Unger, 356 Or 59 (2014), detectives did not exploit their illegal conduct to obtain consent to enter defendant’s home when after knocking on the front door and receiving no answer, the detectives followed a path to the backyard and contacted defendant after knocking on the back door. Because the detectives interacted with defendant just as they would have at the front door, the severity of the misconduct was low.
- In State v. Lorenzo, 356 Or 134 (2014). the officer did not exploit his misconduct to obtain consent where the officer’s illegal action was limited to opening an apartment door and reaching inside to knock on defendant’s door to ask if defendant was “okay.” Because the purpose was to check on the defendant’s safety, the resulting unlawful reaching into the door was of low severity, and the officer obtained no information about criminal activity from the unlawful search itself, the subsequent consent was not vitiated.
Oregon Appellate Cases - Aug. 27, 2014
by: Abassos • August 27, 2014 • no comments
- Search Warrants - Analyzing PC After the Warrant is Controverted
- Issue Preclusion May Not Be Used By the State to Establish an Element
- No Citation Is a Sufficient Grounds for Relief From Default of a Traffic Violation
Oregon Supreme Ct - Aug. 21, 2014
by: Abassos • August 21, 2014 • no comments
Two People Committing Repeated, Coordinated Shopliftings Can Qualify As Racketeering
The definition of "Enterprise" in the Oregon RICO statute is broad enough to encompass two people who have committed three shopliftings in a coordinated way. No formal organization or structure is required. Here, defendant and another person committed three shoplifting-style thefts of more than a thousand dollars from grocery stores in different cities. The items stolen were of the sort that are commonly resold (Huggies, Tide and shrimp). "The jury in this case was entitled to infer that the three thefts, “far from being random, sporadic, or isolated,” originated from an “overarching, coordinated organizational dynamic and design.”" State v Walker, 366 Or 4 (2014).
Oregon Appellate Ct - Aug. 20, 2014
by: Abassos, Katie Watson and Evan Ottaviani • August 20, 2014 • no comments
- Defendant with Viable Theory of Self-Defense Entitled to Self-Defense Jury Instruction in Resisting Arrest Charge
- Consent to Blood and Urine Samples- Influence of Pain Medication does not Make Consent Involuntary; Probable Cause not Necessary for Request
- Tampering with Physical Evidence- ORS 162.295(1) “Official Proceeding” Requirement not met when Defendant Merely Believes a Future Proceeding Might Occur
- No Exigent Circumstances when Possibility of Imminent Harm is Speculative and No Evidence that Obtaining Warrant Would Have Led to Destruction of Evidence
- State Not Held to Plea Agreement When Defendant Absconds
- No Exigent Circumstances when Possibility of Imminent Harm is Speculative and No Evidence that Obtaining Warrant Would Have Led to Destruction of Evidence
- State Not Held to Plea Agreement When Defendant Absconds
- “Same Criminal Episode” in ORS 131.505 Defined Broadly
- A Statement Made by a Third Party is Hearsay if Its Content Can Be Used as Circumstantial Evidence of the Charge.
- An Escape Attempt During an Assault is Not per se Evidence of a Sufficient Pause so as to Renounce Criminal Attempt, as Required by the Anti-Merger Statute.
- Questioning a Defendant who has Indicated that he is not in Need of Police Assistance does not Constitute a Seizure.
- When an Inadvertent Intrusion on Defendant’s Right to Counsel Occurs, Defendant Must Show he was Prejudiced by the Violation to Obtain a Dismissal.
Oregon Supreme Ct - Aug. 14, 2014
by: Abassos • August 14, 2014 • no comments
- A PCR Petitioner Is Not Both Entitled to Counsel and to File Pro Se Motions
Oregon Appellate Ct - August 13, 2014
by: Abassos, Evan Ottaviani, Katie Watson and Samantha Robell • August 13, 2014 • no comments
- Double Jeopardy- “Same Offense"
- Sex Abuse II Merges with Sodomy III When the Conduct Involves Deviate Sexual Intercourse With a Victim Under 16
- A “No Trespassing” Sign Next To Driveway Does Not Automatically Create a Privacy Interest in the Driveway
- Mistrial- Eliciting Testimony That DUII Suspect Invoked Right to Remain Silent, Found Inadmissible In a Pretrial Ruling, Was Prejudicial
- Defendant May Agree to the Judicial Determination of an Element, During a Jury Trial, Without a Written Waiver of Jury
- The Retention of Identification for More Than a Brief Period May Be a Per Se Stop.
- Civil Commitment - It's Plain Error Not to Advise AMIP of the Right to Subpoena Witnesses
- Burglary - A Private Club Is Not "Open to the Public”
- Preservation - Search of a Bedroom vs Opening the Door
Oregon Supreme Ct - Aug. 7, 2014
by: Abassos, Lisa Fitzgerald, Evan Ottaviani, Katie Watson and Samantha Robell • August 7, 2014 • no comments
- Exigent Circumstance—Preventing Further Imminent Harm to Animal Victim
- Unlawful Use of a Weapon Encompasses Using a Weapon to Threaten Harm or Injury.
- Animals can be victims within the meaning of Oregon’s anti-merger statute.
- Police Officers May Rely on Information Provided by Other Officers as a Factor in Justifying a Stop
- A Police Officer’s Experience and Training May Be a Factor Considered by The Court When Reviewing A Stop
Oregon Appellate Ct - Aug. 6, 2014
by: Abassos, Lisa Fitzgerald, Evan Ottaviani and Katie Watson • August 6, 2014 • no comments
- Motions for Continuance- Defendant’s Assertions Must Be More Than Speculation
- DUII- $2,000 Fine for Third or Subsequent Conviction Not Mandatory If Defendant is Sentenced to Time in Jail
- Crim Mistreatment I - Leaving Child With a Known Abuser is Enough to Get Past MJOA
- The Fact That Defendant Lies About His Name to the Cops Is Not Itself Sufficient to Attenuate Such Statements From Prior Illegal Police Conduct.
- Emergency Aid Exception—Officer Must Believe there is Immediate Need for Assistance
- Inventory Search Exception is Limited to Specific Terms of Inventory Policy
Oregon Appellate Ct. - July 30, 2014
by: Abassos, Lisa Fitzgerald, Evan Ottaviani and Tim OConnor • July 30, 2014 • no comments
- Hearsay Prejudicial, for Appellate Purposes, where Credibility is a Central Issue at Trial
- Sexual Abuse III— Mens Rea for Lack of Consent is at least Criminal Negligence
- Stops-Conversationally Requesting and Verifying a Person’s ID is Not a Stop
Oregon Appellate Ct - July 23, 2014
by: Abassos, Lisa Fitzgerald, Katie Watson, Evan Ottaviani and Tim OConnor • July 23, 2014 • no comments
- PCR - Ineffective Assistance of Counsel- No Prejudice when Defense Counsel Used Prior Bad Acts to Support Defense Theory
- Fines and Fees - State Must Show That Defendant Currently Has or Will Have Financial Resources
- "Suspicious Movement,” Attire, and a Prior Conviction Justify Traffic Stop Extension on Officer Safety Grounds
- Right to Proceed Pro Se—Court Must Determine that Defendant Understands Inherent Risks
- It Is Plain Error to Impose Attorney Fees on an Indigent Defendant
- UUMV- Stacking Inferences and Speculation
- Officer Safety - Possession of a Gun
Oregon Appellate Ct - July 16, 2014
by: Abassos, Samantha Robell, Lisa Fitzgerald, Evan Ottaviani, Katie Watson and Tim OConnor • July 20, 2014 • no comments
- A Person Does Not Have a Privacy Interest in a Private Common Area, Even If It is Gated and Locked
- Motion to Postpone - Improperly Denied Where Insufficient Time to Prepare for Trial
- Prior Preservation Opinion is Modified As Too Harsh
- A Police Order that Limits Movement is Not a Per Se Show of Authority
- Felon in Possession of a Firearm - Merger - Going From Constructive to Actual Possession Is Not a Pause in Criminal Conduct
- Issue Preclusion – Must Be Asserted Before the Issue Is Relitigated
Oregon Supreme Ct - July 10, 2014
by: Abassos and Katie Watson • July 10, 2014 • no comments
- Resisting Arrest -Arrest for a Parole Violation is an Arrest for Resisting
Oregon Appellate Ct - July 9, 2014
by: Abassos, Lisa Fitzgerald, Evan Ottaviani, Katie Watson and Tim OConnor • July 9, 2014 • no comments
- Evidence That Defendant Was Not at the Location of the Incident is Not Alibi Evidence
- AIPs - “Substantial and Compelling Reasons” For Denial No Longer Necessary
- Officer Testimony Regarding Refusal to Submit to a Search - Prejudicial When Inference of Guilt Tends to Negate the Defense.
- No violation of Due Process When Probation Extended For Failure to pay Fines and Restitution
Oregon Appellate Ct - July 2, 2014
by: Abassos, Lisa Fitzgerald, Katie Watson, Sam Robell, Evan Ottaviani and Tim OConnor • July 2, 2014 • no comments
- A Stop Occurs when Officer Prevents Defendant from Leaving
- A Request for Identification May Constitute an Illegal Stop Under Oregon Law
- An Officer’s Order to Exit a Restroom Constitutes a Stop
- Dependency Jurisdiction - Positive UAs During Pregnancy are Not Enough to Establish Either a Substance Abuse Problem or a Risk of Harm
- General Notice is Insufficient for Introducing Child Complainant Hearsay Statements
- Reasonable Suspicion Requires that Observations Support a Reasonable Inference as to the Elements of the Crime
- Search Warrant to Out-of-State Business is Authorized as Long as the Court has Personal Jurisdiction
- Search Warrant For All Emails in Defendant’s Email Account is Sufficiently Particular
- Reasonable Suspicion - Odor of Marijuana
- Compelling Circumstances - Casual 20 Minute Stop Not Compelling
- Vouching - Plain Error - Strategic Reason for Not Objecting
- Learned Treatise May Be Used as Impeachment But Not Substantive Evidence
- Civil Commitments - Danger to Others - One Fight Plus Vague Threats Not Enough
- Harmless Error - Witness Assertion of Rt to Remain Silent
Oregon Supreme Ct - June 26, 2014
by: Abassos and Samantha Robell • June 26, 2014 • no comments
- Solicitation - Giving Information To Someone With the Intent of Influencing Them to Commit a Crime is Solicitation
Oregon Appellate Ct - June 25, 2014
by: Abassos, Evan Ottaviani and Katie Watson • June 25, 2014 • no comments
- A Juvenile Court Can Change Its Permanency Plan Based On Findings that Can “Fairly Be Implied” from the Original Allegations.
- DUII- Consent Following Reading of DMV Implied Consent Form is Not Involuntary
Oregon Supreme Ct - June 19, 2014
by: Abassos and Lisa Fitzgerald • June 19, 2014 • no comments
- Accomplice Testimony May Be Corroborated by Evidence “Tending to Connect” Defendant to Offense
- Defendant’s History of Violence, Gang Affiliation, and Physical Ability Justified Order to Wear Stun-Belt during Trial
- Empaneling Anonymous Jury—Court Must Consider Particular Security Concerns and Take Precautions to Protect Impartiality of Jury
- Questioning the Jury—Only if there is Reason to Believe Process has been Compromised
- Jury Instructions—Mercy Alone cannot be the Basis of Jury Decision
- Victim Impact Evidence in Guilt Phase is Harmless if Minimal or Similar to other Admitted Testimony
Oregon Appellate Ct - June 18, 2014
by: Abassos, Lisa Fitzgerald, Katie Watson, Sam Robell, Evan Ottaviani and Tim OConnor • June 18, 2014 • no comments
- Dependency - An Appeal of Jurisdiction is Moot Once Jurisdiction is Terminated
- Miranda Warnings Communicate a Restriction of Freedom
- A Pre-Mills MJOA on Venue Should be Remanded to Give Defendant an Opportunity to Object Properly
- 5th Am. Right to Counsel Must Be Clearly Invoked in DUII Breath Test Context
- Merger - Sufficient Pause - ECSA & Using a Child in Display of Sexually Explicit Conduct
- Attempt to Elude - No Requirement of Evasive Maneuver
- Assault II - Dangerous or Deadly Weapon- Knowingly Applies to the Nature of the Weapon Used
- Sex Abuse II - A Sleeping Person is “Physically Helpless”
- A Decision to Tow a Car Does Not Fall Under the Administrative Seizure Exception When It Is Motivated By Suspicion of Criminal Activity
- Burglary - Tents are Buildings
- Unreasonable Delay and Speedy Trial Rights Under Former ORS 135.747
- Right to Be Present at Trial - Defendant’s Awareness of Trial Date and Location Does Not Establish Voluntary Absence
- Appeals Must Be Raised within 30 Days and Cannot Address Issues from Judgments Outside That Timeframe
Oregon Supreme Ct - June 12, 2014
by: Abassos and Katie Watson • June 17, 2014 • no comments
- A PCR Petitioner Must Submit Evidence That Aids or Advances Allegations
