Oregon Appellate Ct - April 23, 2014

by: Abassos • April 23, 2014 • no comments

Stops - Reasonable Suspicion - Unreasonable Inferences - Read this Case

An officer's suspicion is not reasonable where the circumstances "establish nothing more than that defendant, who had admitted to using drugs months before the stop, was present in high drug use areas and was associating with others who had been or may have been involved in drug related activities. If that were sufficient to establish reasonable suspicion, we would be effectively sanctioning nonparticularized status-based stops of individuals who have used drugs in the past. The law does not go that far." The scope of the court's very clear statement must be understood in light of how the officer articulated his suspicion in this case:

(1) the officer had observed what he believed was a "suspected drug deal in the park."

(2) defendant gave a ride to Shawna "whose last name [defendant] didn't know" and "who supposedly called from a pay phone when none was immediately present."

(3) Shawna got out of the vehicle "in a high drug use area" and entered "a former drug house."

(4) Defendant had "admitted" to a "previous history of two types of illegal drug use."

(5) Defendant was not the registered owner of the car she was driving.

(6) The vehicle's registered owner "had a documented drug history."

(7) Defendant had made statements distancing herself from "potential evidence in the vehicle that could be attributed to her."

(8) defendant was in a "high drug trafficking and use area of the city."

The aforementioned 8 items do not constitute reasonable suspicion. Reversed. State v Wiggins

"I Wish You Were Dead" Is Not a Qualifying Contact for a Stalking Order

The statement "I wish you were dead" is more akin to an "impotent expression of anger or frustration" than the sort of unequivocal threat of imminent and serious violence required of a communication to qualify as one of the contacts for a stalking protective order. Also, threats to call the police and DHS are not threats of violence at all, much less imminent and serious violence. CJL v Langford

Forcible Compulsion - Attempted Sex Abuse - Very Aggressively Grabbing Victim's Arm is Enough

There was sufficient evidence that defendant's purpose was to forcibly compel the victim to touch his penis where:

(1) Defendant took victim to a secluded room

(2) Stepped in front of her and exposed his penis; and

(3) "very aggressively" grabbed victim with enough force to leave bruises on her arm.

Thus, defendant's MJOA on attempted sex abuse was appropriately denied.

State v Fox

Coercion - A National Guard Recruiter is a "Public Servant"

The term "public servant" in the coercion statute includes any government employee, including employees of the federal government, as well as anyone who provides a service rendered in the public interest. The court reaches this conclusion by using Websters, rejecting defendant's "elaborate" argument stemming from ORS 162.005. Here, defendant was a recruiter for the National Guard and, therefore, both a government employee and "an individual who provides a public service . . . because he assists members of the public." State v Fox

Miranda - An Invocation of Counsel Followed by Illegal Interrogation, a Long Break and a New Interrogation Initiated by Defendant

Where defendant was unlawfully questioned after invoking his right to counsel, he was still capable of validly waiving his right to counsel by initiating further conversations with the police. The appropriate framework with which to analyze such a case is found in State v Acremant, 338 Or 302 (2005), not State v Hall. Here, defendant knowingly, intelligently and voluntarily waived his 5th amendment right to counsel where he did not make any incriminating statements in response to unlawful police questions and later initiated further contact with detectives without prompting. Defendant validly waived his Article I, Section 12 rights because (1) defendant initiated contact after an extended break in questioning, (2) the detectives went out of their way to make sure defendant knew it was his decision and that he had the right to talk to an attorney, and (3) defendant confirmed that he understood his rights before making any incriminating statements. State v Doyle.

Traffic Stop - Extension by Asking About Weapons - Dissipation of Reasonable Suspicion of a Threat

An officer may only extend a stop by asking about weapons where the officer has an articulable and reasonable suspicion that the person either poses "an immediate threat of serious physical injury" or has engaged in criminal activity. Here, defendant was pulled over for speeding. After approaching the car, the officer saw what he believed to be a box of ammunition and asked defendant where the weapon was. Defendant said "What weapon?". At that point, the officer realized the "ammunition" was actually a cigarette pack. But the officer asked again about the weapon. Defendant told the officer about the gun under the seat and consented to a search. The court holds that, after the officer realized that what he thought was ammunition was only cigarettes, there was no reasonable suspicion of officer-safety concerns. Defendant' response "What weapon?" was an appropriate answer to a potentially confusing question based on the officer's mistaken impression regarding the cigarette box. It was not, as the state claimed, a new basis for reasonable suspicion. State v Pearson.

"Reversed and Remanded" For Denial of a Basic Trial Right Means Reversed for a New Trial

Where a Marion County judge was reversed for barring defendant's closing argument in a bench trial, the case was put back into a pre-trial posture. Thus, defendant could assert her right to a jury trial anew. Instead, the judge barred a jury trial as well as a new bench trial, permitting defendant only to make a "closing argument" before convicting her again. Reversed and remanded for a new trial before a jury. State v Barajas

Dependency - Denial of Attorney's Withdrawal Motion Left Parent Without Representation

Where mother's attorney moved to withdraw for ethical reasons and a breakdown in the attorney-client relationship, the judges denial of the withdrawal motion left mother without counsel. Thus, when the court continued with the motion hearing, it was without the procedural protections required for a fundamentally fair hearing. Reversed. DHS v SCP

Pre-Indictment Delay' of 58 Months For No Good Reason Plus the Unavailability of an Impeachment Witness Is a Due Process Violation

A 58 month pre-indictment delay violated Due Process where the state provided no rational, good faith reason why the case languished for years and the delay resulted in the unavailability of the principal investigating detective. The defense was actually prejudiced by the unavailability of the detective because there were substantial disparities between the complainant's testimony and the detective's report; disparities that were all the more important because this was a case alleging unwitnessed sexual abuse with no corroborating physical evidence. Though the detective would merely have been an impeachment witness, "where the impeachment witness is the sole witness on a given issue and there is no corroborating evidence, the interests of a fair trial require that the adverse party be given ample opportunity to impeach that witness." State v Whitlow