Oregon Appellate Ct - July 22, 2015
by: Abassos, Brook Reinhard, Matthew Watkins, Jonathan Heritage, Joseph Hampton, Robert Taylor, Sean McGuire, Kit Taylor and April Yates • July 22, 2015 • no comments
Search and Seizure – A Person Has a Protected Privacy Interest in the Private Entry Road to a House If A Reasonable Person Would Believe She Couldn't Enter
Test: When a police officer enters private property to effectuate a search or seizure, she violates Article 1, Section 9 if a reasonable person in her situation would not have believed that she could enter the area of the property in question without permission. Any reasonable suspicion of an officer is immaterial. Trial court declined to consider this test, and ruled instead that because the deputy had “some reasonable suspicion”, his following a driver down a private road into a fenced farm property with a “No Trespassing” sign was lawful. The appellate court remanded the case to the trial court to determine whether the state carried its burden of proving that a reasonable person would have believed that he or she could enter the private property without permission. State v. McKee, 272 Or App 372 (2015).
Evidence - A Defendant is Entitled to Cross on Bias, Even When the Bias Relates to Otherwise Protected Juvenile Adjudications
A defendant is entitled to make an initial showing of a witness’s bias or interest. Only after the defense has made such a preliminary showing does the trial court have any discretion to exclude additional evidence of bias or interest. The trial court erred by preventing the defendant from cross-examining the witness regarding juvenile adjudications and the fact that she was currently in custody; such evidence could indicate that the witness had reasons to falsely testify or was vulnerable to pressure from the state. The Court of Appeals holds the trial court’s error requires reversal because it prevented the jury from hearing a qualitatively different reason to distrust the witness’ testimony. State v Nacoste, 272 Or App 460 (2015).
Stalking Order – Where an Expressive Contact Does Not Objectively Communicate Intent to Harm, the Contact is Not a “Threat” and Thus Not a Qualifying Contact.
“Although respondent’s communications were unwanted and some were sexual in nature or expressed an intention to contact petitioner in person, they did not suggest that respondent would engage in unlawful or violent conduct.” Respondent had not been physically violent toward petitioner nor anyone else. The expressive contacts included text messages including, among others, one message that said respondent would stay at petitioner’s house until she returned, one message that he wanted to “[lie] naked with [her], and a decorative sign left at petitioner’s house. These expressions did not create an objectively reasonable “fear of imminent and serious personal violence” under State v. Rangle, 328 Or 294 (1999). S.R.J. v. King
Dependency – Allegations in a Termination Petition That Go Beyond the Scope of the Original Basis for Jurisdiction Do Not Deprive Father of Notice Where Original Allegations Sufficient for Termination
In this case, where Father contended that DHS had deprived him of constitutionally adequate notice at his termination of parental rights hearing, the Court finds five of the allegations alleged in the termination petition were "materially indistinguishable" from those used by the court to establish initial jurisdiction, and therefore affirmed the trial court without reaching the merits of Father's appeal. Father had argued the grounds for termination were different than those in the initial jurisdiction petition, citing holdings in DHS v. GE, 243 Or App 471 (2011), DHS v. NMS, 246 Or App 284 (2011) and DHS v ARS, 256 Or App 653 (2013). But the Court, analyzing the case de novo, finds that DHS proved the original five allegations by clear and convincing evidence, and that they are sufficient on their own to terminate Father's parental rights. Dept. of Human Services v. J.C.H., 272 Or App 413 (2015)
Parole Hearing – Board of Parole May Place Limits on Who Can Accompany an Inmate at a Hearing
On its face and consistent with legislative intent, ORS 144.123 gives the Board of Parole statutory authority to “place limits on people [an] inmate may select to attend a board hearing” as set forth in OAR 255-030-0025 and OAR 255-030-0026. Here, defendant contends that an inmate has a “right” to bring any person of his choice to such a hearing. The Court disagrees and states that the “inmate’s choice must be in compliance with and to the extent authorized by the administrative rules.” Furthermore, defendant contends that the rule was not “promulgated jointly” by the Board of Parole and the Department of Corrections as required by the statute because each agency created its own rule at a separate time. The Court disagrees, finding that the term “rule promulgated jointly” is an “inexact term” and the rule must only recognize “that both agencies have an interest in regulating attendance at board hearings…and ensur[e] that those regulations set consistent criteria for attendees.” Smith v. Board of Parole, 272 Or App 493 (2015).
