Oregon Appellate Ct - Dec. 2, 2015
by: Abassos and Alisa Larson-Xu • December 2, 2015 • no comments
Exploitation - When the Purpose of Police Misconduct Is To Procure Consent, the State Is Unlikely to Be Able to Prove There Was Not Exploitation
On reconsideration, in light of State v Unger, Musser and Lorenzo, the court finds that the state failed to establish that defendant's consent to search was not the product of police exploitation of an illegal seizure that had just occurred. More specifically, the police inquired about drugs and requested consent to search at the beginning of an otherwise legal traffic stop and not during an unavoidable lull. Defendant then admitted that he had heroin in his pocket and consented to further searches. Thus, the stop was unlawfully extended for the exact purpose of acquiring defendant's consent. That is the temporal proximity of the consent to the illegality was immediate. There was a direct causal link between the illegality and the consent. There were no intervening or mitigating circumstances to mitigate or cut off the causal link. While nothing about the police behavior was threatening, the misconduct was "at least moderately flagrant" because the "prohibition against extending stops by way of gratuitous investigatory inquiries" was well established. Ultimately though, the most important factor for the court is that the purpose and the intended consequence of the police misconduct was to procure consent to an exploratory search for drugs. State v Pichardo, 275 Or App 49 (2015).
Repeat Sex Offender - Comparable Out of State Offense - California Lewd Acts Law is "Comparable" to Sex Abuse I Despite Being Broader
For the purposes of Oregon's life sentence, repeat sex offender law, the California crime of Felony Lewd Acts With a Child Under 14 (CPC 288) is comparable to Sex Abuse I even though the California law doesn't require contact with an intimate part of the body. "As used in ORS 137.719, 'comparable' means having enough like characteristics or qualities to make comparison appropriate." It is not the same as "similar" for the purpose of calculating an offender's criminal history score under the sentencing guidelines. Here, the California law has the same aim as Sex Abuse I and both require a touching with a sexual purpose. The fact that the California statute is broader is not decisive where the statutes have the same use, role and characteristics. The court "readily" concludes that the statutes are comparable for purposes of ORS 137.719. State v Carlton, 275 Or App 60 (2015).
