Oregon Appellate Court - May 21, 2014

by: Abassos and Samantha Robell • May 22, 2014 • no comments

Consent Given in Response to a Stop Extension Does Not Create Attenuation

Consent given in response to an officer’s question that illegally extends a stop does not attenuate the search from the illegal extension. Police who question defendant, during a stop, about unrelated activities without reasonable suspicion of criminal activity have unlawfully extended the stop. When those questions elicit consent, the consent will not cure the illegal extension. Here, the police stopped defendant to arrest a known fugitive in defendant’s car and discovered during the stop that defendant had no driver’s license. The police then asked defendant for consent to search for drugs, defendant consented to the search and admitted possessing heroin. The court holds that the unlawful extension of a stop is properly viewed as the source of defendants’ consent and admissions and physical evidence. Reversed and remanded. State v. Pichardo, 263 Or App ___ (May 2014).

Preservation – Right to Counsel

Defendant’s argument to the trial court that he did not waive his right to counsel did not preserve his appellate argument that officers did not properly advise him regarding his right to counsel. “At the suppression hearing, defendant’s argument focused on whether he had told the officers that he no longer wanted an attorney. He never argued separately that, even if he had told the officers that he no longer wanted an attorney, that statement did not constitute a valid waiver because the officers did not inform him of his ‘right to private consultation.’” Affirmed. State v. Hernandez, 263 Or App ___ (May 2014).

Walking Stops May Not Be Extended; Just Like Vehicle Stops

“[W]hen a person is approached by a police officer—whether the person is in an automobile, on a bicycle, or on foot—for committing a noncriminal traffic violation, and the police officer and the person know that is the basis of the stop, then the officer who has approached the person must proceed to process the traffic violation, and may not launch an investigation into unrelated matters unless the inquiries are justified by reasonable suspicion of the unrelated matter, the inquiry occurred during an unavoidable lull in the citation-writing process, or some exception to the warrant requirement applies.” Here, the defendant was confronted for jay-walking and the officers suspected defendant was in a gang. The court rules that the police officer had no reasonable suspicion that defendant posed a risk to officer safety, and therefore had no reason to extend the scope of the stop by inquiring about gun possession. Reversed and remanded. State v. Jimenez, 263 Or App ___ (May 2014).

Attorney Contribution Orders Are Judgments that Start the 30 Day Appellate Clock

An order for a court-appointed attorney contribution is a limited judgment from a separate and distinct proceeding that starts the 30 day time limit for appeals. See State v. Shank. Affirmed. State v. Mannix, 263 Or App ___ (May 2014).

No Show of Authority when Defendant Consented to a Records Check

It was not a show of authority, and therefore not a stop, when defendant consented to a records check during a casual encounter, and the police retained the defendant’s identification briefly for the check. Here, defendant had fallen asleep behind the wheel of a parked car when police woke him, inquired about the smell of alcohol on his breath, and asked in a casual tone for defendant’s identification. The court found “that a reasonable person would not have felt that the officer was exercising his authority to significantly restrain” defendant. Affirmed. J. Duncan dissents, stating that the police officer did in fact initiate a traffic stop and, in any case, a reasonable person would have believed the officer initiated a traffic stop. [263 Or App ___ (May 2014). State v. Beasley], 263 Or App ___ (May 2014).

Child Sex Abuse Trial And Sentencing

There are lots of little issues in this child sex abuse case:

• Beyond the Scope of Direct | The trial court correctly allowed the state to introduce a child abuse investigation video on cross where defense counsel, on direct examination questioned the lead Detective consistent with the larger defense theory that no investigation had been done because the detective relied almost completely on the video. The jury was entitled to assess for themselves whether the videos constituted sufficient investigation.
• Vouching in the Child Abuse Investigation Video | It was not vouching where the Child Abuse Investigator, at the very beginning of the investigation video, tells the child that "we always tell the truth". The jury would have understood that the staff member was not yet in the position to form an opinion about the child's honesty.
• Other Bad Acts in the Video | It was harmless error where the victims mentioned additional bad acts in the introduced, unredacted video because (1) the victims testified on the stand that there were hundreds of instances of abuse "pretty much on a daily basis" and (2) the jury was specifically instructed not to accept the statements made on the video as substantive evidence.
• Mistrial for Improper Comments on Credibility | The trial court was not required to grant a mistrial when the DA told the jury to look at the demeanor of the victims that the detective relied on in submitting the case. The trial court properly gave the state latitude to respond to the defense argument that the child abuse investigation interviews were insufficient to constitute a real investigation.
• Child Abuse Investigator - Scientific Evidence | The child abuse investigator's testimony was not scientific evidence where her "answers were explicitly framed in terms of her own career, training, and experience. Hansen did not refer to studies, research, scholarly literature, or anything else that would cause a jury to infer that her testimony was based on more than her personal experience."
• Separate Criminal Episodes are Blakely Facts | Separate criminal episodes, to the extent they require fact finding, must be proven to a jury beyond a reasonable doubt. For the purposes of reconstitution and shift to I, but not for the purposes of consecutive sentences. See State v Mallory. Here, however, such fact finding was harmless error because the judge could reasonably infer that incidents at separate houses were separate episodes and incidents for the separate victims were separate episodes. For the remaining four incidents there was very clear testimony that they happened at very different times in the victim's life (e.g., kindergarten vs 9 years old). Read Ryan's article here.

State v Cuevas, 263 Or App ___ (May 2014).