Oregon Appellate Court, Nov 20, 2013
by: Abassos • November 20, 2013 • no comments
Where a Warrant Search Follows a Warrantless Search, the State Must Show Inevitable Discovery, Independent Source or Attenuation
When the state seeks to introduce evidence obtained from property that was initially searched unlawfully, the state must prove that the evidence was not tainted by the unlawful search. Here, police illegally searched a cell phone then obtained a warrant to search it and searched the phone again. The state argued that the evidence should be admissible because the warrant still furnished probable cause even when all references to illegally found evidence were excised. The court simply states that this argument "lacks merit". Once defendant establishes a minimal factual nexus between the illegality and the evidence, the burden shifts to the state to show why the evidence would inevitably have been discovered, was discovered through independent means, or that its discovery was attenuated from the illegality, arguments which the state doesn't even attempt to make here. State v McClatchey, 259 Or App ___ (11/21/2013)
Mistrial - Prosecutorial Misconduct - Trial Disclosure of Invoked Right to Remain Silent
While it is error to admit testimony oby an officer that defendant refused to say anything, it does not justify a mistrial unless the jury is likely to draw adverse inferences. Here, the jury was unlikely to draw adverse inferences because (1) nothing in the context of the statement illustrated that defendant knew he was guilty of a new crime because he was being arrested on a warrant when he said he wouldn't say anything to the officer; and (2) nobody referred to the statement again. State v McClatchey, 259 Or App ___ (11/21/2013)
Right to Counsel - Officer Must Clarify Suspect's Intent in Response to an Equivocal Invocation
When a person equivocally invokes the right to counsel, officers must clarify whether the person intends to invoke. Simply re-Mirandizing after an equivocal invocation is insufficient. Here, defendant was arrested, properly questioned by detectives and then held in jail without access to a telephone. Defendant asked jail deputies when she would be able to call a lawyer. Because she didn't have a specific lawyer to call, they told her she would receive a lawyer at her arraignment. Prior to being arraigned, detectives came back, re-Mirandized defendant and questioned her again. The court finds that the statement "when will I be able to call an attorney?" is an unequivocal invocation of the right to counsel. But even if the statement were equivocal, the detectives did not "follow up with questions intended to clarify whether the suspect meant to invoke his right to counsel." Thus, evidence from the second interrogation should have been suppressed. However, since most of the same admissions from the second interview were made at the first interview, the court finds that there is little likelihood that the erroneous admission of evidence affected the verdict. Affirmed State v. Alarcon, 259 Or App ___ (11/21/2013).
The Witness in a Witness Tampering Case is a Victim
The witness in a prosecution for witness tampering is a victim for the purpose of the vulnerable victim upward departure factor. A victim is someone directly, immediately and exclusively injured by the commission of a crime. See State v. Teixeira, 259 Or App 184 (2013). A victim is "vulnerable" where the defendant has a history of abusing the victim. Here, defendant had gone to prison multiple times for assaulting the victim and breaking into her apartment when he called her from jail trying to get her to change her testimony. Thus, there was evidence to support the imposition of an upward departure. Oregon v Lykins, 259 Or App ___ (2013).
Warrant notification through LEDS or NCIC permits arrest after an unlawful stop
Notice from the LEDS or NCIC database that someone has an outstanding warrant is proper notice in accordance with ORS 133.310 (2). In this case the officer learned of the defendant’s information through stopping him without reasonable suspicion for DUII when he was sleeping in his parked car on the side of the road. He then ran a LEDS and NCIC search which came up with an outstanding warrant. He arrested the defendant, searched him, and found a gun. However, since the court holds a LEDS or NCIC database search to qualify as proper notice if it informs an officer of an outstanding warrant, there was no violation of any substantive legal right in the stop, arrest, or search. Oregon v Meier, 259 Or App ___ (2013).
