Oregon Appellate Court - May 30, 2013

by: Sonja Good Stefani and Abassos • May 30, 2013 • one comment

Balancing test determines whether consent to search is attenuated from a prior illegality

Whether consent is attenuated from a prior illegality is a balancing test based on the following three factors from State v. Hall: “(1) the temporal proximity between the unlawful police conduct and the defendant’s consent, (2) the existence of any intervening circumstances, and (3) the presence of any circumstances—such as, for example, a police officer informing the defendant of the right to refuse consent—that mitigated the effect of the unlawful police conduct.” In this case, consent was attenuated even though it occurred during an illegal stop because: (1) there was no evidence that the police officer took advantage of the unlawful stop to gain consent; (2) there was no evidence that the officer gained any advantage from the unlawful stop that caused him to seek consent; and (3) the officer provided defendant with a consent to search form that explicitly informed defendant of his right to refuse consent to search. State v. Meza-Garcia, 256 Or App__ (May 30, 2013).

“Immediately Stop” Means “Without Delay” for Failure to Perform the Duties of a Driver

A defendant charged with failure to perform the duties of a driver when property is damaged is not entitled to a jury instruction on attempt if the defendant failed to “immediately” stop in accordance with ORS 811.700(1)(b). The plain meaning of the word “immediately” is “without delay.” Under any measure, continuing to drive for two minutes, or 472 feet, constitutes delay prior to stopping, and no rational jury could find that the defendant stopped “immediately.” State v. Cruz-Gonzelez, 256 Or App__ (May 30, 2013).

Unconfirmed Use of Secondary Drugs Relevant to DUII (absent objection)

A defendant’s use of Ambien is relevant in a DUII trial even though: • The prosecutor focused on narcotics; • Ambien was detected in the screening test but not in the confirming test; and • The police officer observed nystagmus and there was no evidence of constricted pupils, which contradicted the state’s theory that defendant was under the influence of narcotics. The court’s refusal to instruct the jury that Ambien was not relevant to the case was not in error because (1) the defendant did not follow the proper procedure to exclude evidence of Ambien from the record, and (2) the requested jury instruction was not legally correct. State v. Stubbs, 256 Or App__ (May 30, 2013).

Reasonable Suspicion is Person Specific

Reasonable suspicion that the driver of a car is involved in illegal drug activity does not extend to the passenger. Officers must have specific and articulable facts of criminal activity for each person. State v. Kingsmith, 256 Or App ___ (May 30, 2013).

Sex Abuse Diagnosis Without Physical Evidence – Not Harmless Error

Admission of a diagnosis of sex abuse in the absence of physical abuse evidence is plain error. Such an error is not harmless even where there is also clear DNA evidence consistent with the defense theory and victim testimony. The error is likely to have affected the verdict because juries are prone to over reliance on expert testimony. State v. Brown, 256 Or App ___ (May 30, 2013).

No Windfalls Allowed

The court will not correct an error if there was no objection and it would result in a windfall for the defendant. Here defendant did not object to a restitution order and so waived his right to contest the issue. Instead of asking for a remand to correct the error, defendant asked to strike the restitution, which would result in a windfall. State v. Coronado, 256 Or App ___ (May 30, 2013).

Habeas Corpus Becomes Moot When Relief Already Granted

A person’s Habeas Corpus appeal is moot when the only relief he could have received by winning at the trial level has already been granted by the time the Appellate Court takes the case. Here, the court concludes that even though the Parole Board miscalculated the date on which they could first consider release, since the release-consideration process had already commenced any ruling on the issue would have no practical effect on the plaintiff’s rights. Rivas v. Persson 256 Or App __ (May 30, 2013).

PER CURIAM OPINIONS:

• Two assaults merge when the conduct was a single episode on a single individual, and there was not a sufficient pause between the attempted assaults. Here, the state concedes the trial court erred and the case is reversed and remanded for merger of the attempted assaults. State v. Dahl, 256 Or App __ (May 30, 2013).

• A judgment erroneously stating a defendant is “convicted” of contempt of court will be remanded so that the entire judgment – and not just the title – correctly reflects that the defendant is found in contempt of court. State v. Larrance, 256 Or App ___ (May 30, 2013).