Oregon Appellate Court - September 25, 2013
by: Abassos, Alex Flood, Alarson and Cmaloney • September 25, 2013 • no comments
Opening the Door of a Locked Public Restroom is a Search
For the purposes of Article I, section 9, of the Oregon Constitution, a defendant has a privacy interest in a locked public restroom. Here, police believed that defendant committed a probation violation and entered a public restroom to evade police. The police pounded on the restroom door for a few minutes, told the defendant to come out because he was under arrest, and then unlocked and opened the restroom door. The court held that opening the door to the locked public restroom was an unlawful search. Reversed and remanded. State v. Holiday, 258 Or App ____ (2013)
Emergency Aid Exception May Be Used to Protect Animals
The emergency aid exception to the warrant requirement can be applied to protect an animal from imminent harm. Here, a police officer with considerable experience working with horses identified a horse he believed to be in need of immediate medical attention. Acting without a warrant the officer seized the horse and took it to a veterinarian. The court utilizes the numerous Oregon statutes protecting animals to demonstrate a societal interest in protecting animals, and therefore holds that the emergency aid exception can reasonably apply to a “non-human animal.” State v. Fessenden, 258 Or App ____ (2013)
A Parole Board's Use of a Mental Disability to Deny Parole Does Not Violate the ADA
It is not a violation of the Americans with Disabilities Act for the parole board to deny parole based on a "severe emotional disturbance" that causes the person to be dangerous. The focus of the Board's determination is on community safety and risk of harm, not on the mental illness. Also, a parole board has provided a substantial reason for its decision where it refers to its reliance on a single, clear psychological evaluation. Grimm v Board of Parole, 258 Or App ____ (2013)
PCR - Inadequate Assistance - Uncertainty is Prejudice
"Uncertainty in whether the jury convicted the defendant without agreeing on the elements of the offense charged in each count is prejudicial, in the context of post-conviction relief, because the failure to give a proper concurrence instruction has a tendency to affect the result of the prosecution." Reconsideration granted. Prior opinion adhered to. Hale v Belleque, 258 Or App ____ (2013)
Permanency - A Finding to Retain Jurisdiction Requires Current Risk of Harm to the Child
To maintain juvenile court jurisdiction the conditions or circumstances must continue to pose a current threat of serious loss or injury that is reasonably likely to occur. Here, the mother lived in multiple residences, was considering another move, and ended a relationship with a man who threatened violence to himself. The court finds that evidence of residential instability and parent’s previous residency with an unsafe partner did not demonstrate a current risk of harm. Dept. of Human Services v. A.R.S.
PER CURIAM
- A trial court may not impose a unitary assessment for violation of a restraining order because a restraining order violation is a contempt case, not a criminal case. State v Pitts, 258 Or App ____ (2013)
