Oregon Appellate Ct - Jan. 7, 2015
by: Abassos, Frangieringer and Gina Anzaldua • January 7, 2015 • no comments
Automobile Exception - Approaching One's Car Does Not Make it Mobile
Approaching a car with keys in hand does not satisfy the mobility requirement for the automobile exception. Here, defendant was approaching his car with another man whom he had given his keys. The arresting officer took the keys and searched the car under the automobile exception after seeing a baggy of less than an ounce of marijuana in plain view, eventually discovering 402 grams of marijuana. Because no one was in the car, the engine was not running, the keys were not in the ignition, and the officer had not seen the car move, the car was not mobile “as required under the automobile exception.” Hence, the trial court was in error when it denied defendant’s motion to suppress. State v. Baiz, 268 Or App 401 (2015).
UUV – Probable Cause - Arrested while driving stolen car
Police have probable cause to arrest a person for UUV when 1) the police know that the vehicle at issue was reported stolen, 2) the defendant is the driver of the vehicle, and 3) the defendant cannot locate the vehicle’s registration or insurance information. Here, police stopped defendant for a traffic violation. When asked, defendant could not provide the car’s registration or insurance information. Subsequently, the arresting officer learned that defendant’s license was suspended and the car was reported stolen. Because the car was reported stolen and the defendant could not locate items that a lawful driver would most likely know of, officers could conclude that, more likely than not, the defendant knew the car was stolen. State v. Gibson, 268 Or App 428 (2015).
UUV - Probable Cause - Proximity to stolen car
Police have probable cause to arrest a person for UUV based on that person’s proximity to the vehicle when 1) the car was reported stolen and was recently driven, 2) the defendant is standing within arms’ length of the car with another person, 3) there was no one else on the street who could have driven the car, 4) car thieves commonly work in pairs, and 5) there is a conversation taking place between the defendant and suspected partner near the car. Here, officers located a stolen vehicle using a “LoJack” tracker. Defendant was standing within arms reach of the trunk of the car and co-defendant stood in the crook of one of the car’s open doors. The two appeared to be talking. Because the car was recently stolen, car thieves work in pairs, and the close proximity of defendant to the car, officers had probable cause to believe that defendant committed UUV. State v. Gibson, 268 Or App 428 (2015).
Restitution – Defendant Liable for All Jewelry He Stole Even Though He Only Pled Guilty to a Single Necklace
For the purposes of restitution, when pleading guilty to theft, the word jewelry is understood in the plural when evidence is presented at the restitution hearing that multiple items of jewelry were stolen. Here, defendant was not liable for just an opal necklace, the theft of which eventually led to the apprehension and conviction of client, but rather of all items of jewelry that defendant stole where 1) additional evidence was presented at the restitution hearing that defendant took and sold jewelry from complainant’s dresser; 2) the complainant testified about other items that were taken the day of theft; 3) the government submitted documentation from the complainant’s insurer listing the missing items and their value; and 4) the charging instrument alleged the theft of "jewelry" and not a particular item. As such, the evidence was sufficient to infer that when defendant plead guilty, he was convicted of the theft of multiple items of jewelry and not a single item and could be required to pay restitution for every item. State v. Kirkland, 268 Or App 420 (2015).
Dependency Jurisdiction - Current Threat of Harm - Speculative Threats Are Not Enough
The juvenile court erred in asserting jurisdiction over three children where DHS failed to prove a connection between the care provided by the children’s grandparents and a specific, non-speculative threat of harm to the children. DHS presented evidence that the grandparents were facing criminal charges for their alleged financial involvement in a marijuana growing operation. However, a criminal indictment of this type against a child’s caretaker does not, on its own, establish that the child faces an actual threat of harm. Furthermore, mere speculation by DHS about possible dangers to the children in question stemming from their grandparents’ alleged criminal activity (like a greater risk of robbery) is not sufficient to prove a concrete risk of harm. DHS also raised concerns regarding a 10-year-old allegation that the grandfather had been physically abusive, but it failed to connect the grandfather’s alleged prior conduct with a current and specific risk of harm to the children. Finally, DHS argued that the grandparents created an unsafe situation when they violated a court-ordered plan for the children’s supervision. However, one such violation, without evidence that the children were endangered, is not sufficient to establish a current risk. Dept. of Human Services v. A. L., 268 Or App 391 (2015).
PCR - Summary Judgment - No Difference in Result
A reasonable trier of fact would be compelled to infer that the sentencing judge would have imposed at least the sentence he did, regardless of whether the defense attorney made the purported error, where the trial judge stated on the record that he found the facts of the case "appalling" and would likely have imposed a higher sentence but for the state's recommendation. Thus, summary judgment was appropriate in this PCR case. Baker v Premo, 268 Or App 406 (2015).
PCR - IAC - Failure to Object to the Reasonable and Probable Consequences Instruction on Accomplice Liability
Trial counsel failed to exercise reasonable professional skill and judgment, four years prior to the issuance of State v Lopez-Minjares, in failing to object to the standard jury instruction on accomplice liability. An adequate attorney would have researched accomplice liability and found State v Anlauf, indicating that the accomplice liability statute was inconsistent with the standard jury instruction. Also, attorneys were regularly objecting to the instruction at the time and Ryan Scott was talking about the standard instruction being wrong on the OCDLA pond. Because there was a discrepancy between what was required of the jury (by the actual law) and what the jury was asked to consider (through the jury instruction), the instruction had a tendency to affect the result of the prosecution. Thus, PCR petitioner was prejudiced by the failure to object. Wade v Brockamp, 268 Or App 373 (2015)
