Oregon Appellate Court - January 16, 2013
by: Jwestover and Abassos • January 16, 2013 • no comments
Self-Representation May Not Be Denied “In Best Interest of Defendant”
A trial court must allow self-representation if the defendants decision is “intelligent and understanding,” and would not “disrupt the judicial process.” Here, a judge denied defendant’s request to represent himself “solely because it was in his ‘best interest’ to continue to be represented by his current defense counsel.” State v. Miller
Affidavit Insufficient for Warrant to Search Residence
An affidavit in support of a warrant based on hearsay statements of an unnamed informant (UI) must contain facts detailing the UI’s reliability and, to the extent possible, disclose the source of the UI’s information. ORS 133.545(4). The remedy where the affidavit does not contain such facts is that the UI’s statements must be stricken from the affidavit and reassessed for probable cause. Here, an affidavit to search a residence contained UI statements without facts supporting reliability or source. When the UI’s statements were stricken from the affidavit, the remaining information did not provide probable cause to search the residence. As a result, all evidence from the search of the residence must be suppressed. State v. Miller
No Subject-Matter Limitations on Officer Questions
There is no subject-matter limitation on officer questions during a stop; there is only a temporal limitation. Officers may not extend the duration of a stop with questions unrelated to the stop. In this case, an officer was allowed to ask a driver, stopped for a traffic violation, if he could search the vehicle for “drugs, weapons, and illegal documents” while his partner looked up the driver’s information. The court rejects defendant’s argument that Rodgers/Kirkeby sets limits on the subject matter of officer questioning. State v. Wiener
A Statement of Suspicion is Not a Stop
An officer’s statement that he suspects a person is engaging in criminal activity is not a sufficient show of authority to constitute a stop. An officer’s statement that he believes a person is engaged in criminal activity is a stop. Here, the arresting officer stated that it was “my job . . . to find crimes in in progress,” and that he had “arrested somebody that belonged to [the] house” defendant had just left. These statements were indications of the officer’s suspicion that defendant may be engaged in a criminal act, not his belief. Thus, there was no stop. State v. Wiener
Reasonable Suspicion – Drug Trafficking
The following “indicators”, cited by the police officer, do not amount to reasonable suspicion of drug trafficking:
- A religious medallion hanging from the rearview mirror. (The court will not consider religious medallions at all. See State v DeLa Rosa.)
- A lack of visible luggage. (The court has previously ruled that a lack of visible luggage adds nothing to the reasonable suspicion analysis. See State v Juarez-Godinez.)
- California license plates
- The car was pulled over on I-5 (for speeding)
- Defendant had a pre-paid cell phone
- A sketchy story about how the car was acquired. In the absence of testimony about how the specifics of the story connect with drug trafficking, any inferential connection is too speculative.
Expungement – Criminally Negligent Homicide Not Eligible
A conviction for criminally negligent homicide may not be set aside (aka expunged). ORS 135.225(7). This is true whether the conviction occurred under the current statute, ORS 163.145, or the former statute, ORS 163.091. The intent of the legislature was to exclude criminally negligent homicide from eligibility. State v Beck
“Exhaustion” Constitutes “Illness” For Delaying DMV License Suspension Hearings
A DUII suspension hearing may be postponed due to the arresting officer’s exhaustion. ORS 813.440 provides for several exceptions to the timeliness requirement of hearings on the validity of driver’s license suspensions, including for “the inability of a subpoenaed police officer to appear due to the officer’s illness.” The court of appeals affirms the DMV’s decision that ‘exhaustion’ falls into the definition of “illness.” Walker v. DMV
