Case Reviews

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Oregon Appellate Court 3-21-12

by: Aalvarez • March 21, 2012 • no comments

Read the full post for a summary of today's opinion:

Article I, section 27--PCC 14A.60.010(A)--Carrying a Loaded Firearm in Public

Article I, section 27--PCC 14A.60.010(A)--Carrying a Loaded Firearm in Public

In an en banc opinion, the court rejects a facial challenge to PCC 14A.60.010(a), an ordinance prohibiting the carrying of a firearm in a public place after recklessly failing to unload it, holding that it violates neither Article I, section 27, nor the 2nd amendment of the U.S. Constitution.

Under the majority's interpretation, the primary concern of Article I, section 27 was to prevent limitations on a person's ability to carry weapons in order to protect self and home. Since the ordinance does nothing to criminalize any conduct occuring in a person's home or prohibit a person from carrying a recklessly not-unloaded weapon in order to engage in justified conduct (reasonable self defense), the provision does not implicate any of the founders concerns.

Additionally, the majority emphasizes that the ordinance falls well within the legislature's authority to protect public safety, a concept "that was understood when the Oregon Constitution was adopted and as it is understood today."

Edmonds dissents, with Brewer, Nakamoto, and Armstrong joining him. Edmonds finds the majority's interpretation incorrect, because its interpretation of the statute is not the interpretation as actually advanced by the city. Under the majority's interpretation:

...a person charged under the ordinance is permitted to testify that he or she reasonably perceived the need to carry a loaded firearm for the purpose of self-defense, and if that testimony, if believed by the factfinder, is sufficient to defeat a prosecution under the ordinance, then the majority has effectively written into the ordinance a self-defense exemption--an exception that the city admittedly did not include among the more than a dozen exceptions it enacted.

As actually advanced by the city, the statute prohibits any possession of a loaded firearm in a public place, unless specifically exempted.

After an extremely detailed exploration of constitutional history, the dissent concludes that the ordinance is unconstitutional because

...of the breadth of the ordinance's definition of a "public place." The framers of Article I, section 27, and the citizens of Oregon who adopted that provision as part of our state constitution, could not have contemplated that a citizen could be prohibited from bearing constitutionally protected arms for self-defense in all public places and private properties open to the public.

State v. Christian

Oregon Appellate Court 03-14-12

by: Abassos • March 14, 2012 • no comments

Read the full post for summaries of today's cases on the following topics:

Felon in Possession - Misd. Treatment Still a Felony
Inventory Search - Exceeding the Scope
Venue - A City and Milemarker Isn't Enough
Consec. Sentencing Is Not an Erroneous Term
Dependency - Jurisdiction - Likelihood of Harm
Mental State - Jury Instructions
Stalking Protective Orders - Contact and Alarm
Dependency - Jurisdiction - Prior Sex Offense and Failed Treatment Not Enough

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Felon in Possession - Misdemeanor Treatment - Still a Felony Unless Reduced at Time of Judgment

Defendant was properly convicted of felon in possession of a firearm even though his felony had been reduced to a misdemeanor. A felony at the time of judgment continues to be a felony for the purposes of the felon in possession statute regardless of misdemeanor treatment. The reason is that ORS 166.270(3) specifically defines felony to include any felony conviction except where "the court declared the conviction to be a misdemeanor at the time of judgment". State v Stark

Inventory Search - Exceeding the Scope

Officers exceeded the authority of their inventory policy where they searched the bed of a pickup truck secured by a locked tonneau cover. The bed of a pickup truck is neither a "trunk" nor an "external vehicle container", the two possibilities allowed under the inventory policy. A pickup bed is not a trunk because only cars have trunks. Pickups have beds. Just because the tonneau cover allowed the bed to function like a trunk doesn't make it into a trunk ("just as a fanny pack is not a purse"). It is self-evidently not an external vehicle container because the bed of a pickup is not external to the vehicle. Reversed. State v Hanna

Venue - Driving While Revoked

The state did not prove venue because it requires speculation to get from their proof (that the crime was committed in North Plains on highway 26 near mile marker 57) to the conclusion that the crime was committed in Washington County. Reversed. State v Mills

Correction of Erroneous Term By Sentencing Court - Consecutive Sentences

A failure to impose consecutive sentences is not an "erroneous term" that can be modified under ORS 138.083(1)(a). Here, when a court revoked probation it intended for the sentence to run consecutive to another prison sentence the defendant was already serving. However, the judge didn't mention it in the judgment or on the record. The judge was not allowed to amend the judgment two years later to reflect her unstated intent because there was no erroneous term in the judgment. The judgment was clear in its failure to impose a consecutive sentence. State v Gilbert

Dependency - Jurisdiction

Continuation of jurisdiction was inappropriate where there was no evidence underlying the decision and even the original jurisdiction was based on evidence that did not indicate "a reasonable likelihood of harm". Specifically, the original jurisdiction was based on inadequate supervision evidenced by unsupervised access to the internet and exposure to mom's "unconventional" but not unlawful lifestyle. DHS v DM

Mental State - Jury Instructions

Defendant was not entitled to a jury instruction specifying the conduct to which a mental state applies because the standard jury instructions for menacing are not incorrect. The instruction for "intentionally" is correct because, to prove menacing, the state must establish both conduct and a result. The instruction for menacing is correct because it informs the jury of the elements to which the mental state applies. State v Durst

Stalking Protective Order - Contact and Alarm

To support a Stalking Protective Order, a contact involving speech must be an unequivocal threat of imminent personal violence. Here, the respondent told the petitioner, a fellow shopper at Good Will that "You should be afraid of me, they're not going to stop me, I can do whatever I want." Since "they" was Good Will and "whatever I want" referred to his aggressive shopping style, the words did not convey an immenent violent threat. The aggressive shopping itself did not support a SPO because it was not sufficiently agressive to make it reasonable for the petitioner to fear the threat of physical injury. Respondent pushed petitioner 10 times over the previous year in an attempt to keep her from the more valuable books at the Good Will bins.[http://www.publications.ojd.state.or.us/sites/Publications/A142110.pdf Reitz v Erazo]

Consent to Search - Extension

A stop is not extended where consent to search is requested by one officer while the other officer is writing a traffic ticket. State v Nims

Dependency - Jurisdiction

The fact that father had previously beaten and sodomized a 3 year old and failed to complete treatment was insufficient to establish danger to the children. The incident was two decades prior. The state did not prove that father's condition was not in remission, as he testified. At best, they presented a 14 year old evaluation indicating he was still a danger. that 14 year gap, however, is a "temporal canyon". The burden is not on father to prove he's in remission. J. Wollheim dissents:

I would find that DHS proved, by a preponderance of the evidence, that father, having never remedied the condition that caused him to sodomize young children in his care, poses a current risk to such children, including his own.

DHS v BB

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.

State v. Cabanilla

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

→ read the full summaries...

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

→ read the full summaries...

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.

→ read the full summaries...

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

→ read the full summaries...

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

→ read the full summaries...

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

→ read the full summaries...

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

→ read the full summaries...

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

→ read the full summaries...