Oregon Appellate Ct. - Feb. 19, 2015
by: Frangieringer and Abassos • February 19, 2015 • no comments
Search & Seizure – Reciprocal Relationship Between Flagrancy of Officer Misconduct and Officer’s Control Over Defendant’s Movements
In an unlawful consent search, the flagrancy of an officer’s misconduct increases when officers request consent to search at a time when, as a result of their misconduct, the officers are increasing their control over defendant’s movements. Here, officers unlawfully extended a stop when instead of issuing a traffic citation, they gave the defendant and a passenger a “series of instructions” to get out of the car, which culminated in a request to search defendant. Because the officers did not tell defendant that he was free to leave and requested consent to search just as they were increasing their control over defendant’s movements, “the officers’ actions conveyed to defendant that his compliance with their instructions was a condition on receiving the citation and being allowed to leave.” Because the officers exploited their misconduct when they “traded” on the unlawful extension of the stop to obtain defendant’s consent to a pat down search, the items and statements recovered from the search should have been suppressed. State v. Kuschnick, 269 Or App 198 (2015).
SPO – Need to Present Evidence of Harm Feared, Otherwise No Basis to Determine Whether Fear is Reasonable.
There is insufficient evidence for an SPO where unwanted contacts are either “rhetorical excesses, and impotent expressions of anger and frustration,” or where the petitioner is unable to identify specific facts that give rise to her fear. Here, respondent, under a different name, sent messages to several of petitioner’s friends to keep “tabs” on her. He also called the petitioner a “whore” several times while at a club. Petitioner cited those events as well as respondent’s previous felony convictions as contributing to her fear that he might cause her harm. Because petitioner admitted that she didn’t feel threatened by respondent’s verbal contact, and did not introduce any of the facts of respondent’s felony convictions, petitioner failed to present evidence of what type of harm she was afraid of. Thus, there was no basis to make a finding on whether her fear was reasonable. Lower court was in error to grant the restraining order. Miller v. Hoefer 269 Or App 218 (2015).
Probation Revocation – A Sanction is Not A Sentence
When a judge revokes a person’s probation, the judge imposes a sanction based on the probation violation. The judge is not sentencing the person on the underlying crimes. Here, following a show cause hearing for two probation violations where the prosecutor only discussed the crimes of conviction, the trial judge “sentenced” defendant to two consecutive terms of 18 months under ORS 137.123 (controlling consecutive sentencing). Under OAR 213-010-0002, however, a court may only impose consecutive terms of imprisonment for a probation violation “if more than one term of probationary supervision is revoked for separate supervision violations.” Because the issue was whether defendant violated his probation, the judge had no authority to sentence defendant. Furthermore, the trial court was not “right for the wrong reason” in giving defendant two consecutive prison terms. The record on the probation violations was insufficiently developed to determine whether consecutive sanctions were warranted. State v. Patterson, 269 Or App 226 (2015).
UUV & PSV – Jiggle Keys and Implausible Story not Sufficient to Withstand MJOA Where Defendant is Otherwise Driving Vehicle Normally
There is insufficient evidence to prove the knowing requirement of UUV and PSV when the only evidence the state brings at trial is 1) a pair of “jiggle keys” found in the vehicle, 2) an implausible story about how the driver got the vehicle, and 3) a lie about where the driver had been in the vehicle. Here, defendant was arrested while he was driving a stolen truck. The state presented evidence of jiggle keys in the truck, an implausible story about how defendant borrowed the truck from a third-party who defendant could not contact, and defendant’s lie that he had not been in the back of the truck where the jiggle keys and other contraband were found. This was insufficient to prove that defendant knew that the truck was stolen when he was operating the truck with a valid pair of keys and there was no damage to the truck that indicated it was stolen. State v. Korth, 269 Or App 238 (2015).
