Oregon Appellate Cases - Aug. 27, 2014

by: Abassos • August 27, 2014 • no comments

Search Warrants - Analyzing PC After the Warrant is Controverted

Where the officer fails to disclose the bias of the informants in a search warrant affidavit, the corroboration of the informant's statements become crucial to the question of whether probable cause has been established. Here, the officer failed to disclose a long-standing vendetta of the two informants against the defendant. And there were significant inaccuracies in the information provided about defendant's marijuana grow. Because there was no corroborating information connecting defendant's address to the marijuana grow, the warrant lacked supporting probable cause. State v Goecks, 265 Or App ___ (2014).

Issue Preclusion May Not Be Used By the State to Establish an Element

The prior litigation of an issue may not be used via "issue preclusion" to establish an element of a crime at trial. Here, defendant testified at a previous DUII-manslaughter trial in which he was found guilty that he wasn't the one driving. The state convinced the judge in a subsequent perjury trial to instruct the jury that the fact that he was driving had already been established beyond a reasonable doubt. "Using the doctrine of issue preclusion to conclusively establish facts necessary for a conviction in a criminal prosecution impermissibly interferes with a defendant's constitutional right under Article I, section 11, to have a jury find every element of the charged offense beyond a reasonable doubt." State v Davis, 265 Or App ___ (2014).

No Citation Is a Sufficient Grounds for Relief From Default of a Traffic Violation

Defendant provided sufficient grounds for relief from a defaulted ticket for parking in a "temporary no parking" zone when his affidavit stated that neither he nor the towing company ever received a citation. Not receiving a citation qualifies as "mistake, inadvertence, surprise or excusable neglect" under 153.820(7). State v Goldman, 265 Or App ___ (2014).