Oregon Appellate Ct - July 2, 2014

by: Abassos, Lisa Fitzgerald, Katie Watson, Sam Robell, Evan Ottaviani and Tim OConnor • July 2, 2014 • no comments

A Stop Occurs when Officer Prevents Defendant from Leaving

A stop occurs when defendant’s car is actually prevented from leaving by officer’s car, regardless of defendant’s subjective intent to leave or stay. Here, when the officer arrived to investigate a possible DUII, he pulled within one car length behind defendant’s truck parked at the end of her driveway. An unlawful stop occurred, regardless of defendant’s intention to stay, because defendant was not free to leave. Reversed and remanded. State v. Thacker, 264 Or App ___ (2014).

A Request for Identification May Constitute an Illegal Stop Under Oregon Law

A request for identification with accompanying authority to restrain may constitute an illegal stop under Oregon law. The Supreme Court in Backstrand, Highley, and Anderson addressed whether an officer’s request for identification constituted an unlawful seizure under Article I, Section 9, and, in all three cases, the Court held that the defendant was not illegally seized based on the totality of the circumstances. Here, after arresting every adult at a residence either for drug charges or immigration violations, the defendant arrived at the scene to take custody of the children. Instead of releasing the children to the defendant after checking identification, the officer proceeded to ask the defendant where he was from and to request additional identification. The defendant was unlawfully seized by the officer’s second request for identification, because a reasonable person in those circumstances would have believed that he was under investigation and would not feel free to leave. Reversed and remanded. State v. Zamora-Martinez, 264 Or App __ (2014).

An Officer’s Order to Exit a Restroom Constitutes a Stop

An officer’s order to exit a restroom constitutes a stop. A stop occurs when a reasonable person would believe that a law enforcement officer intentionally and significantly restricted, interfered with, or otherwise deprived the individual of his or her liberty or freedom of movement. Here, the officer banged on the bathroom door, identified himself as a police officer, and ordered the defendant to exit a café restroom. The defendant was unlawfully seized when the police ordered him to leave the restroom without reasonable suspicion of criminal activity, despite the fact that the manager could have asked the defendant to leave. Moreover, the police officer’s actions were not justified by the emergency aid exception, or, therefore, the community-caretaking statute, ORS 133.033. Reversed and remanded. State v. Lange, 264 Or App __ (2014).

Dependency Jurisdiction - Positive UAs During Pregnancy are Not Enough to Establish Either a Substance Abuse Problem or a Risk of Harm

Where mother tested positive for drugs during two prenatal exams while carrying E, passed two UAs in the hospital and failed to appear for another, there was insufficient evidence that mother had a substance abuse problem at the time of the jurisdictional hearing, and, in any case, there was no evidence that drug use by mother put E at a nonspeculative risk of serious loss or injury. Reversed and remanded. DHS v. E.M., 264 Or App __ (2014).

General Notice is Insufficient for Introducing Child Complainant Hearsay Statements

Notice of an intention to offer hearsay evidence must at least identify specific statements and the means of introduction in order to satisfy the particularity requirement of OEC 803(18a)(b). In this case, the defense had been notified of the state’s general intention to introduce hearsay evidence in a cover letter attached to 91 pages of discovery documents. At trial, the state introduced a video recording of an interview with the complainant at a child-abuse-assessment center. The court held that there was insufficient notice. Reversed and remanded. State v. Hernandez-Fabian, 264 Or App ___ (2014).

Reasonable Suspicion Requires that Observations Support a Reasonable Inference as to the Elements of the Crime

Subjective belief is not sufficient to constitute reasonable suspicion where factual observations do not support a reasonable inference that the elements of a crime are present. In this case, the defendant was parked on the shoulder of a public road and had been described by an informant as “suspicious”. The court held that there was no factual basis suggesting that the defendant was trespassing and that all evidence obtained after the stop should have been suppressed. Reversed and remanded. State v. Moore, 264 Or App ___ (2014).

Search Warrant to Out-of-State Business is Authorized as Long as the Court has Personal Jurisdiction

ORS 136.583 authorizes search warrants to out-of-state businesses as long as the requirements for personal jurisdiction are met. In this case, the court upheld a warrant issued to Yahoo, a California corporation. Affirmed. State v. Rose, 264 Or App ___ (2014).

Search Warrant For All Emails in Defendant’s Email Account is Sufficiently Particular

A search of all emails stored on an email account satisfies the particularity requirements of Article I, section 9 or the Oregon Constitution. In this case, the defendant was charged with the crimes of encouraging child sexual abuse and using a child in a display of sexually explicit conduct. The court upheld the warrant, stating that it specified both the place to be searched (the email account) and the items to be seized (evidence of the crimes). Affirmed. State v. Rose, 264 Or App ___ (2014).

Civil Commitments - Danger to Others - One Fight Plus Vague Threats Not Enough

Starting a fight followed by “a few vague threats of violence are not legally sufficient to constitute clear and convincing evidence that [defendant] is a danger to himself or others” and should, therefore, be civilly committed. In this case, defendant attacked a mental health client while receiving his voluntary monthly injection of antipsychotic medication. Defendant then later stated to his evaluator that he felt that in order to get treatment he had to hurt himself, others, or break property. The court holds that “one incident of starting a fistfight with another mental health client, under the circumstances here, is an isolated act of violence that is not sufficient to establish that [defendant] is an ongoing danger to others.” Reversed. State v. E.D., 264 Or App __ (2014).

Harmless Error - Witness Assertion of Rt to Remain Silent

In this case, the trial court encouraged a witness to invoke his right to remain silent by telling him that he could incriminate himself for the unlawful practice of law. The defense argued that the court had interfered with their witness. However, any error on the part of the trial court was harmless due to the fact that the same area of questioning was answered by another available witness. Reversed and remanded. State v. Buchalski, 264 Or App __ (2014).

The following cases are still being edited:

A Stop Occurs When a Request for Consent to a Search is Combined With Aggressive Questioning and Multiple Officers

A stop occurs when:

• Officer's questions persist even after defendant and his companions deny possessing drugs,
• Officer then calls for backup,
• and the backup agressively questions defendant,
• and responding Officer asks for defendants permission to conduct a patdown search.

Here, defendant was asked to consent to a search of his person in the presence of a backup officer who aggressively questioned him after the original officer had informed him that he was investigating a report of drug use. Affirmed. State v. Acuna, 264 Or App____ (2014).

Reasonable Suspicion - Officer's observations corroborate the informant's personal observations

Reasonable suspicion occurs when an officer's observations corroborate the informant's report that:

• there are two vehicles on the scene that match the description provided,
• there are a group of young men standing on the intersection,
• and the odor of marijuana was present in the immediate vicinity.

The defendant was stopped when officer’s asked for permission to search his person and this stop was supported by reasonable suspicion due to the officers observations that corroborated with the informant. There was reasonable suspicion, despite the presence of only three men instead of the expected four, the fact that the odor could not be linked to a particular individual, and a lack of indication of quantity of marijuana based on smell. Special emphasis was placed on the presence of the odor of marijuana. The court notes that the odor created reasonable suspicion as to all three men, particularly in light of the anonymous tip. Affirmed. State v. Acuna, 264 Or App____ (2014).

Compelling Circumstances - A Casual 20 Minute Stop is Not Compelling

A lack of freedom for the defendant to leave is not dispositive of compelling circumstances. Here the defendant argued that the circumstances were compelling and invalidated his consent to the search of a backpack because he was not read his Miranda rights until after the backpack was searched. This claim was based on the presence of multiple officers, the increasing intensity of the encounter, and the aggressive manner of the second officer. This argument was rejected due to the short length of the stop, its occurrence on a public sidewalk, the sirens and lights on the police cars not being activated, force was never used or threatened, and the officer’s conduct never reached the point of being abusive or coercive. Because circumstances were never compelling until the defendant was actually placed under arrest, at which point he was Mirandized, there was no violation of the defendant’s right against self-incrimination. Affirmed. State v. Acuna, 264 Or App____ (2014).

Vouching Statements Need Not Be Excluded Sua Sponte Where The Defense Fails To Object At Trial And There Is Plausible Inference of a Strategic Reason For This Decision

The trial court’s duty to exclude vouching testimony, which is generally plain error, may be overcome where the defense fails to object to the testimony and there is a plausible inference of a strategic reason for the defense to allow this vouching testimony. In this case the defendant was tried and convicted of a murder. The case was remanded by the Oregon Supreme Court and the defendant was tried and convicted again. Defendant appealed this conviction on a claim of impermissible vouching by one of the state’s witness, which the defense failed to object to and the court failed to sua sponte exclude. The appellate court ruled that the issue was not preserved by a pre-trial motion which was too general for the specific error to be corrected by the trial court. This occurrence of vouching was not plain error because there was a reasonable inference that the decision to not object was a strategic one as elements of the vouched for witness‘s testimony supported the defense’s theory of the case. Affirmed. State v. Salas-Juarez, 264 Or App ____ (2014).

Preservation - Learned Treatise

Defendant's unsuccessful attempt to use a learned treatise was not preserved because no offer of proof was made. Here, the defendant sought to introduce a learned treatise concerning the “weapon focus” effect in eyewitnesses to impeach a detective’s testimony concerning eyewitness identification. Affirmed. State v. Salas-Juarez, 264 Or App ____ (2014).