Oregon Appellate Ct - April 9, 2014

by: Abassos • April 11, 2014 • no comments

A court is never required to impose sentences consecutively.

The trial court erred when it found that, because various Measure 11 convictions did not arise from the same criminal episode, the court was required to impose consecutive sentences under ORS 137.123(2). However, the consecutive sentencing statute is permissive, not mandatory and nothing specific to Measure 11 offenses over rides the permissive nature of the statute. Reversed on plain error.State v. Andrade 262 Or App ___ (2014).

Officer Safety Frisk - Agitation and Odd Behavior Does Not Amount to Reasonable Suspicion of the Threat of Serious Physical Injury

The fact that a person is with someone who has a concealed weapons conviction and then starts acting odd and agitated when the subject of weapons arises does not arise to a reasonable suspicion that the person poses an immediate threat of serious physical injury. Here, defendant was carrying a box of beer with his brother when two officers asked them for identification to verify their age. The officers ran the IDs and found that defendant's brother had a conviction for carrying a concealed weapon. When officers raised the question of weapons, defendant began to get agitated and nervous, leading the officers to believe defendant had weapons on him. When the officers made it clear they were about to search him, he admitted to having a pistol in his pocket. Says the appellate court:

“When it comes to an individual’s right against unreasonable searches and seizures, constitutional protections do not rise or fall based on whether the search or seizure ultimately confirms the officer’s suspicion. Rather, even in a situation where an officer is concerned for his or her safety, the constitution demands that such a concern be objectively reasonable.”.

State v. Rodriguez-Perez 262 Or App __ (2014)