Oregon Appellate Ct - May 6, 2015

by: Abassos • May 6, 2015 • no comments

Search Warrant - Probable Cause - Possession of a Firearm After a Shooting

The following facts do not constitute probable cause in an affidavit for a warrant to search a car after what was believed to be a gang shooting:

• The passenger was shot.
• The car was used to drive the passenger to the hospital.
• Defendant, the owner of the car, drove the passenger to the hospital.
• Defendant was nervous when questioned by police.
• Someone in a group of people around the passenger at the time of the shooting had returned fire.
• The passenger denied that anyone he was with fired a gun.
• The officer's training and experience told her that people involved in the unlawful use of firearms often leave evidence in their vehicles.

However, such facts establish only a mere possibility, not a probability that evidence would be found in the vehicle. Ultimately, "all that the facts establish is that [the passenger] was a shooting victim and that defendant came to [the passenger's] aid. That does not give rise to a reasonable probability that either man committed a crime or possessed a firearm, let alone placed evidence of a firearm crime in defendant’s vehicle." Reversed and remanded. State v Williams, 270 Or App 721 (2015).

Search and Seizure - Probable Cause - Fraudulent Tags + Furtive Behavior + Sketchy Story + No Insurance or Bill of Sale = PC

The following facts constituted probable cause to search a vehicle under the automobile exception:

• the apparently fraudulent use of 2012 tags on a car for which the registration expired in 2008,
• defendant's explanation that he had recently purchased the vehicle from a guy in a field,
• defendant’s inability to produce a bill of sale or proof of insurance,
• the fact that the car was listed as registered to another owner who did not have a license, and
• defendant’s nervous and furtive behavior at the time the officer attempted to arrest him in which defendant made multiple attempts to reach down toward the floorboard and grab something.
• the officer's testimony that falsified tags can be indicative of a stolen vehicle and an attempt “to conceal the identity of the true registration.”

While there was an alternative explanation for the falsified tags, the officer was not required to accept it, nor did it make the officer's belief less objectively reasonable. State v Brock, 270 Or App 675 (2015).

Burglary - Public Area of Hospital After Hours is Not Open to the Public

For the purposes of Burglary, a building is closed to the public if it is restricted to certain people. For example, a tennis club is closed to the public even if members have free access to the building. State v Etzel. On the other hand, a wholesale florist was open to the public where the intent was to cater to wholesalers but there was little to indicate that others were excluded. State v Pittman. Here, defendant was a patient in the emergency room of a hospital who wandered past a security guard to a different area of the hospital and stole money from a purse. The presence of the security guard, unlike in Pittman, made it clear that the area was not open to the public. Normally, the security guards would not stop a patient from wandering between areas of the hospital, but in this case defendant had previously committed thefts at OHSU and had been told more than once that he was "forbidden to wander into other parts of the OHSU campus," aside from the emergency room. All official exclusion orders had been nullified with a change in OHSU policy. However, even if such orders were no longer exclusions for Trespass purposes, "it does not follow that defendant had permission to be in areas of the OHSU campus that he had been repeatedly forbidden to enter." State v Shapiro, 270 Or App 701 (2015).

Prior Bad Acts - Prior Solicitations For Murder in a Solicitation for Murder Case Against the Same Victim

The trial court did not abuse it's discretion in finding that the relevance of defendant's prior conviction for soliciting the murder of his ex-girlfriend was not substantially outweighed by its prejudice in a solicitation for murder case against the same victim. The court makes this finding without any further discussion. This is primarily a preservation case in which the defendant did not preserve either a due process argument that the prior act should be excluded or an evidentiary argument that defendant neither stipulated to the charged conduct nor was there a conditional relevance instruction. Also, the defense conceded that the prior act was relevant to intent. So the only question was whether the evidence was unfairly prejudicial, a decision reviewed by the court for abuse of discretion and summarily dismissed without discussion. State v Ardizzone, 270 Or App 666 (2015).

Termination of Parental Rights - The Erroneous Appointment of a Guardian Ad Litem Renders the Proceeding Fundamentally Unfair

A guardian ad litem should not have been appointed for mother in a termination of parental rights where the only evidence was:

• a 6 month old parenting evaluation that the court finds is too dated and too far afield
• testimony by the psychologist that mother's personality disorder made her unable to contain her emotions or stay focused. However, the standard is whether she is able to appreciate her own self-interest and communicate her wishes to her attorney. The psychologists's concerns apply to a whole lot of people who should not have a guardian appointed. Moreover, the fact that she was consistently able to express her desire not to have a guardian is some evidence of her ability to communicate her wishes.
• The psychologist's belief that mother was delusional, short of a delusional disorder. However, such a belief was not based on observation, but only on a letter from mother's attorney had purported to observe in unknown circumstances. In any case, the psychologist stated in his report that mother had paranoid ideation but was free of frank delusions.

The appointment of a guardian based on insufficient evidence rendered the proceeding fundamentally unfair. Not only was mother unable to drive decision making, the appointment of a guardian was used both in arguments and in judicial findings to support the idea that mother was functioning at a diminished level. DHS v ASM & MDM, 270 Or App 728 (2015).

Parole Board Orders - Appellate Review

When the parole board declined to reopen and reconsider a prior order, the declination was not a "final order" and thus not subject to judicial review. See State v Mastriano, 342 Or at 690. Stevenson v Board of Parole, 270 Or App 689 (2015).