Oregon Appellate Court November 15, 2012

by: Stephanie Clark and Abassos • November 15, 2012 • no comments

A meth conviction from 4 yrs ago plus personal amount possession now does not create pc for a search warrant

Officers obtained a search warrant for defendant's house based solely on:

1. A four-year-old conviction for possessing a commercial amount of methamphetamine.

2. A recent consent search by defendant's probation officer that found a half gram of meth and a dirty pipe in defendant's house.

Such evidence, without more, did not provide probable cause to believe that defendant would have additional methamphetamine in other parts of his house. State v. Huff, __ Or App __ (2012).

Dependency - Permanency Judgment - Harm vs Severe Harm

"Under the totality of the circumstances as they existed at the time of father's motion, DHS established that there was a reasonable likelihood of harm to M's welfare such that it was not error to continue jurisdiction. M did not meet father until she was eight years old and had been in foster care for more than two years. . . M strongly preferred to continue to live in her foster home and was not aligned with father. Further, there was evidence that a sudden transition from her current placement with her "psychological" grandparents and into father's home could be harmful to M."

However, "the record does not support the juvenile court's determination that placement with father within a reasonable time would cause M severe mental and emotional harm. Although there was evidence that any transition would be very difficult and would require services for M and father, that prospect is not unlike the circumstances in most dependency cases where a change in placement will be difficult for the child." Thus, the plan should have been for reunification, not guardianship. Permanency judgment reversed. DHS v JN, __ Or App __ (2012).

Per Curiams

• Civil Commitment - The record lacks legally sufficient evidence to support a finding that the defendant was a danger to others as a result of a mental disorder. State v. M.J., __ Or App __ (2012) (per curiam).
• Unlawful use of a weapon - The court affirms based on State v. Ziska, which held that "'use' in ORS 166.220(1)(a) describes both the actual use of physical force and the threat of immediate use of physical force." State v. Garza, __ Or App __ (2012) (per curiam).