Case Reviews
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Oregon Supreme Court 3-1-12
by: Mwitt • March 9, 2012 • no comments
Breath Test Refusal Admissible at Trial Even if Warnings Aren't Understood. [edit]⇲
When arrested for DUII, a defendant is properly "informed" of the consequences of refusal to take a breath test if the arresting officer complies with the requirement to read the rights and consequences substantially as set out in ORS 813.130. Here, even though the defendant had a "weak" command of the English language and the officer "noticed a language barrier in his communication with the defendant," the defendant's refusal was admissible. The state does not have to establish that the defendant fully understood the information.
Oregon Appellate Court 03-07-12
by: Abassos • March 7, 2012 • no comments
Read the full article for details about the following new cases:
- Eyewitness Identification - Suggestive Procedures
- Civil Commitment - Danger to Self - Suicidality
Oregon Appellate Court 02-29-12
by: Abassos • February 29, 2012 • no comments
Read the full article for details about the following new cases:
- Relevancy - Other Acts
- Diagnosis of Sex Abuse - Multiple Complainants
- Stalking Protective Order - No Mental State as to Alarm
- Termination of Parental Rights - Unfitness
- Dependency - No Appeals Past 90 Days
- Appealing a Stipulated Illegal Sentence
Oregon Appellate Court 02-23-12
by: Abassos • February 23, 2012 • no comments
Read the full article for details about the following new cases:
- County venue can be inferred from proof of a city.
- Consent to search invalid following unlawful detention.
- Emergency aid requires an actual, imminent threat.
- The passive resistence instruction for Interfering with a Police Officer must be given when requested.
U.S. Supreme Court 02-22-12
by: Abassos • February 21, 2012 • no comments
Read the full article for details about the following new case:
- Jail Isn't Always "Custody" for Miranda
Whether a person is "in custody" or not, for Miranda purposes, does not turn on whether the person is in jail or prison. So says the U.S. Supreme Court in a new opinion.
In this case, defendant was serving jail time. He was summoned to a visiting room and interrogated for 5 to 7 hours about a different crime. He ultimately confessed. He was never read Miranda or told that he didn't have to speak with the deputies. He was told more than once that he was free to leave. The upshot of the opinion is that there is no categorical rule regarding what is or is not custody:
In sum, our decisions do not clearly establish that a prisoner is always in custody for purposes of Miranda whenever a prisoner is isolated from the general prison population and questioned about conduct outside the prison.
Justice Alito, writing for the majority reasons that a person serving time is not automatically the sort of custody with which Miranda is concerned because:
- The shock of being arrested is not present for a person already in jail.
- The person knows, in any case, that after the interrogation is over, custody will continue. That is, custody is unrelated to the interrogation.
- The interrogating officers don't have authority over the person's release.
Rather than a categorical rule, courts should look to the individual circumstances of the interrogation to determine whether "a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave."
In this case, defendant was not in custody for Miranda purposes. Defendant testified that "I was told I could get up and leave whenever I wanted." Further, defendant was not physically restrained or threatened. In fact, he was given food and water. And, the door to the conference room was left open.
Justice Ginsburg writes the opinion for the 3 dissenters who would have found that defendant was in custody. Defendant did not feel free to leave and had very good reason to feel that way. He was taken against his will to the interrogation. He told the officers, more than once, that he didn't want to speak with them. He wasn't given his evening medications. And he was questioned long into the night by armed officers. For the dissent, the standard would be whether there was "an incommunicado interrogation in a police dominated atmosphere." Howes v. Fields ||
Article I, Section 12 of the Oregon Constitution has it's own body of cases about when a person is in compelling circumstances such that Miranda like warnings are required. However, "The Oregon constitutional test is comparable to the test for determining whether a person is in custody for Fifth Amendment purposes, and Oregon courts have approached the two questions using the same analysis." State v Warner, 181 Or App 622 (2002). In other words, the new S.Ct. opinion may very well be persuasive, though not binding.
Oregon Appellate Court 02-15-12
by: Abassos • February 14, 2012 • no comments
Read the full article for details about the following new cases:
- A warrant check does not impermissibly extend a stop
- Cross may be limited where confusing and collateral
- Judge may not impose no Contact provision on PPS
- Evidence of Satanism admissible if it's a motive
- No inventory of closed containers unless policy allows
- DCS to a minor - no mental state as to age
U.S. Supreme Court 01-22-12
by: Abassos • January 22, 2012 • no comments
Read the full article for details about the following new cases:
- GPS Tracking is a Search
This morning the U.S. Supreme Court issued a Fourth Amendment opinion, U.S. v. Jones, finding that GPS vehicle tracking is a search. Scalia and 3 other justices think it's a search because the physical trespass of a vehicle (to which the GPS tracker was attached) was something the original founders would have understood to fall within the Fourth Amendment. That is, this was a physical trespass, therefore it was a search. Alito and 3 other justices think that applying an originalist understanding to modern technology is laughably absurd. The test the Alito concurrence would apply is whether a person's reasonable expectation of privacy is violated. Sotomayor is the swing vote. She believes that the trespass test is a Constitutional minimum but also that a more expansive privacy test should be used to account for our modern world:
JUSTICE ALITO's approach, which discounts altogether the constitutional relevance of the Government's physical intrusion on Jones' Jeep, erodes that longstanding protection for privacy expectations inherent in items of property that people possess or control. By contrast, the trespassory test applied in the majority's opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case. Nonetheless, as JUSTICE ALITO notes, physical intrusion is now unnecessary to many forms of surveillance. With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones. In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion's trespassory test may provide little guidance. But "[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis." As JUSTICE ALITO incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations. Under that rubric, I agree with JUSTICE ALITO that, at the very least, "longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. . . More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a greatdeal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the "tradeoff" of privacy for convenience "worthwhile," or come to accept this "diminution of privacy" as "inevitable,", and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.
Sotomayor concurrence, U.S. v. Jones
Stealing shamelessly from SCOTUSblog, the go-to Supreme Court website, here's the reporting from around the blogosphere:
By Kali Borkoski on Jan 23, 2012 at 2:55 pm
This morning the Court issued its decision in the GPS tracking case United States v. Jones, holding that attaching a GPS device to a vehicle and then using the device to monitor the vehicle's movements constitutes a search under the Fourth Amendment. Although the Justices were unanimous in upholding the opinion by the U.S. Court of Appeals for the District of Columbia Circuit, the reasoning on which they relied to reach that conclusion varied. Lyle Denniston explained the decision in detail for this blog, while Greg Stohr covered the case for Bloomberg. Additional coverage is available from Adam Liptak at the New York Times, Robert Barnes and Cecilia Kang of the Washington Post, Joan Biskupic of USA Today, Mike Sacks of the Huffington Post, Kashmir Hill at Forbes, Jesse Holland and Pete Yost of the Associated Press (via MSNBC), Ariane de Vogue of ABC, James Vicini of Reuters, Tony Romm of Politico, Jim Harper of Cato@Liberty, and Brendan Sasso at The Hill's Hillicon Valley blog.
NRP's The Two-Way blog features a discussion on the case between Nina Totenberg and Paul Brown.
At the Volokh Conspiracy, Orin Kerr has several posts on the opinion here, here, and here.
Oregon Appellate Court 01-05-12
by: Abassos • January 4, 2012 • no comments
Read the full article for details about the following new cases:
- Hearsay - Statement Against Penal Interest - Availability
- Stop - Free to Leave
- Restraining Order Hearing - Right to Cross Examine
- Probation - Community Service - Consent of Defendant Required
Oregon Supreme Court 12-30-11
by: Abassos • December 29, 2011 • no comments
Read the full article for details about the following new cases:
- Felon In Possession - No Mental State for Felony Status
No mental state is required for the element of being a felon in the crime of felon in possession of a firearm. In this case, defendant was told by the judge that his felony would be reduced to a misdemeanor as soon as he successfully completed probation. Defendant successfully completed probation so he assumed that his felony was a misdemeanor. The Supreme Court rules today that his mistaken belief is not a defense. State v. Rainoldi
That's the ruling to take away from today's case but it's worth going through the analysis because figuring out what elements have mental states is a notoriously confusing endeavor. The analysis starts with ORS 161.095(2), which says that, except as provided in ORS 161.105, the state is required to prove a mental state for "each material element of the offense that necessarily requires a culpable mental state". This circular sentence has been the subject of much ridicule over the years. But, for today's case, it doesn't matter because felon in possession falls into the ORS 161.095(2) exception for crimes outside the criminal code. Felon in possession isn't part of the criminal code, despite the fact that it can be found in your blue statute book labeled "Criminal Code", because ORS 161.005 sets forth a specific list of statutes that comprise what"may be cited as the Oregon Criminal Code of 1971?. Felon in possession isn't in that list.
The mental state analysis for non-criminal code crimes is as follows:
- Figure out whether the legislature clearly indicated its intent to dispense with a mental state for the element in question. If yes, then that's the end of the story.
- If such clarity is lacking, then go back to ORS 161.095(2), the circular, ridiculed statute above.
The analysis for figuring out whether the legislature clearly intended to dispense with a mental state is as follows:
- Look at the text of the statute. For felon in possession, the statute is silent as to mental states. Silence is not dispositive but it cuts against there being a mental state.
- Does the element address the defendant's conduct or does it address either the defendant's status or an attendant circumstance. For FIP, the defendant's status as a felon again cuts against there being a mental state.
- Does the legislative history clarify the situation? For FIP, there are no statements from Oregon legislators. But there is a significant historical knowledge from the nationwide movement toward these laws as well as the California and national laws on which Oregon's was based. The historical documents and statements indicate that the clear purpose was to deny felons firearms because felons pose a risk to the public. That risk exists regardless of whether the felon knows of his or her felon status. Thus, again, this prong cuts against there being a mental state element.
- Would requiring a mental state frustrate the purpose of the statute? Requiring a mental state for felonious status would frustrate the purpose of the statute because it's unrelated to the risk, creating more of a burden to the state than is appropriate for the purpose of the crime.
So there you go. All four prongs cut against the defense in this case. Thus, not surprisingly, the court finds that the legislature clearly intended to dispense with a mental state for the element of felony status. See Mental States and Elements for more analysis of today's case.
Oregon Appellate Court 12-29-11
by: Abassos • December 28, 2011 • no comments
Read the full article for details about the following new cases:
- Criminal Episodes - Hit and Run
- Corroboration of Confession - Restraining Order Violation
- Tort Liability - DOC - Sentence Computation
- Civil Commitment - Harms Way
- Sex Abuse - Southard - "Concerning for sexual abuse"
- Stop - Free to Leave
- Termination of Parental Rights - Detriment to Children
- Speedy Trial - 17 Month Delay
- Automobile Exception
- Administrative Searches - Courthouse
- Restitution - Evidence of Economic Damages
- FAPA Restraining Order Violation - Confrontation - Proof of Service
Oregon Appellate Court 12-21-11
by: Abassos • December 20, 2011 • no comments
Read the full article for details about the following new cases:
- Assault III - Aided by Another
- Oregon State Hospital - Involuntary Medication Hearings - Less Intrusive Options
- Habeas - Right Not to Have Attorney Mail Opened by Prison Officials
- Assault II - Dangerous Weapon
- Civil Commitment - Failure to Read Rights
- Restitution - Remand for Resentencing - State v. McLaughlin
- Attorney-Client Privilege - Testifying Does Not Waive the Privilege - DUII
Oregon Appellate Court 12-14-11
by: Abassos • December 13, 2011 • no comments
Read the full article for details about the following new cases:
- Consent - Voluntariness - When Obtained After Implied Consent Warnings (Machuca)
- Evidence Code - Bias
- Restitution - Evidence to Support Judgment
- Voluntary Intoxication - Recklessness - Due Process
- Amended Judgment - Correcting a Factual Error
- Venue - Failure to Register as a Sex Offender
- Stop - Unavoidable and Routine Lulls
- Probation Violation - Waiver of Counsel
- PCR - Failure to Investigate
- Restraining Order - "Interfering"
- PCR - Ordering Defendant to Proceed Pro Se
- Bench Trial - Right to Closing Argument
- Evidence Code - Bias - Prior Disputes
Oregon Appellate Court 12-07-11
by: Abassos • December 6, 2011 • no comments
Read the full article for details about the following new cases:
- Burglary I - Aid and Abet
- Confrontation Clause - Lab Report - Notice and Demand
- Rape I - Forcible Compulsion
- Probation Violation - Extension of Probation
- Probation Conditions - Forfeiture
- Requesting Consent to Search is Not Interrogation
- Dependency - Jurisdiction
Oregon Appellate Court 11-23-11
by: Abassos • November 22, 2011 • no comments
Read the full article for details about the following new cases:
- Warm Springs Tribal Code - Hot Pursuit Provision
- Southard - Treatment Recommendations
- Arrest/PC - UUMV
- DMV Appeal - Agency Orders
- Parole Board - Severe Emotional Disturbance
Oregon Appellate Court 11-16-11
by: Abassos • November 15, 2011 • no comments
Read the full article for details about the following new cases:
- There's No Such Thing as Merger for Sentencing
- Repeat Property Offender - A Court-Martial is not a Prior Conviction
Oregon Supreme Court 11-10-11
by: Abassos • November 9, 2011 • no comments
Read the full article for details about the following new cases:
- Lesser Included Instructions - Crimes vs. Violations
- Speedy Trial - Consent - Reasonable Delay
Oregon Appellate Court 11-09-11
by: Abassos • November 8, 2011 • no comments
Read the full article for details about the following new cases:
- Preservation - Prior Bad Acts
- Search Warrant - Stale Facts
- Attempted Rape III - Intent to Have Intercourse
- Attorney Fees - Sentencing on Remand
- Delinquency - School Search - Consent
- UUV - Passenger - Probable Cause for Arrest
Oregon Appellate Court 11-02-11
by: Abassos • November 1, 2011 • no comments
Read the full article for details about the following new cases:
- DUII - Sleep Driving
- Vertical Proportionality - Misdemeanor vs Felony Probation Revocation
- Dependency - Change in Permanency Plan to Guardianship
- Appeal - Supplemental Judgment
- Restitution - Good Cause to Extend Past 90 Days
Oregon Appellate Court 10-26-11
by: Abassos • October 25, 2011 • no comments
Read the full article for details about the following new cases:
- Probable Cause - Attempted DUII
- Recording a Police Officer
- Equal Privileges - Aggregation of Thefts
- Harmless Error - Southard
- Compelling Circumstances/Custodial Interrogation
- PCR - Inadequate Assistance of Counsel
- Plain Error - OEC 513(2)
- Dependency - Change in Permanency Plan to Adoption
- Dependency - Jurisdiction
- Maximum Determinate Sentence
Oregon Appellate Court 10-19-11
by: Abassos • October 18, 2011 • no comments
Read the full article for details about the following new cases:
- Theft by Deception - Intent to Defraud
- Criminal Trespass II - Invitation to Enter
- Appeals - Appellate Jurisdiction
- Sex Cases - Prior False Accusations
- Punitive Contempt of Court - "Willfully"
- Appellate Discretion - "Strategic Purpose"
- Reasonable Suspicion - DUII
- Dependency - Continuation of Jurisdiction Based on Original Jurisdictional Judgment
- Dependency - Change of Permanency Plan to Adoption
