Oregon Appellate Court - Jan. 2, 2014
by: Abassos and Aurelia Erickson • January 8, 2014 • no comments
UPPA – Police Lacked PC for UPPA Where Conduct was Ambiguous
Police lacked probable cause to arrest defendant for Unlawful Prostitution Procurement Activity (Portland City Code 14A.40.050) where defendant was observed by police walking up and down a street in a high-vice area paying attention to the movement of vehicles around her. She was wearing a puffy jacket, an above-the-knee skirt, and heeled boots; she seemed aware of police when she walked toward but then stopped approaching a parked car; and she had prior arrests for prostitution. “Evidence that a person is in a high-crime area, is engaged in ambiguous conduct, and appears to want to avoid police observation does not give rise to reasonable suspicion to stop the person”, much less probable cause. Police instinct must be supported by observable facts that the person has committed or is about to commit a crime, not simply conduct consistent with criminal activity. Without such observable facts, “any conclusions about the reasons for defendant’s observed conduct would be speculative.” State v. Martin, 260 Or App ___ (2013).
Probation Revocation – Consecutive Sentences Must Be Based on Multiple Violations
A trial court lacks authority to impose consecutive probation revocation sentences when there's only a single violation. OAR 213-012-0040(2)(a). Multiple violations are required even where there are different victims for each of the underlying convictions. The purpose of a probation revocation sanction is to punish the conduct that violated the terms of the probation. Here, the trial judge imposed consecutive terms of prison for the single violation of drinking alcohol. Such a sentence was illegal. State v Lane, 260 Or App___ (2013).
Dependency - A Guardianship Is a “Foster Care Placement” for Purposes of ICWA
A durable guardianship (ORS 419B.366) is a “foster care placement” under the Indian Child Welfare Act (ICWA) and must comply with ICWA’s requirements. Because DHS previously satisfied the juvenile court that active efforts had been made and were unsuccessful, the juvenile court did not err in failing to make an active efforts finding at the guardianship judgment. Also, the appellate preservation rules are preempted by ICWA. Dept. of Human Services v. J.G., 260 Or App ___ (2013).
Termination of Parental Rights – The Court May Not Default a Parent Who Is Present In Court
ORS 419B.819(7) only allows a juvenile court to enter a default judgment for termination of parental rights at a proceeding where the parent is absent. Here, the juvenile court entered a default judgment against mother in a TPR hearing because she had failed to appear at an earlier hearing. Mother was present at the hearing and attempted to participate. Thus, the juvenile court erred in imposing the default judgment and denying mother’s motion to set aside the default judgment. Dept. of Human Services v. A.D.G., 260 Or App ___ (2013).
Merger - Rape I and Sex Abuse II Merge
Convictions for first-degree rape and second-degree sexual abuse charges merge into a single conviction for first-degree rape. Per Curiam. State v. Steward, 260 Or App ___ (2013).
