Oregon Appellate Ct - June 10, 2015
by: Abassos, Tyler Williams, April Yates and Sean McGuire • June 11, 2015 • no comments
Extension of a Stop – Rodgers/Kirkeby Applies to Non-Traffic Stops
Finding the principles of State v. Rodgers/Kirkeby “categorical, as a constitutional matter”, the court explicitly extends State v. Rodgers to all encounters between law enforcement officers and citizens. Thus, the police may not unreasonably extend the duration of any stop to investigate unrelated matters for which they lack reasonable suspicion. Here, officers stopped a woman for criminal trespass when she failed to pay for parking, then questioned her about gang activity and requested consent to search her vehicle for weapons. Because these unrelated questions increased the duration of the stop, the police were required to have reasonable suspicion that the defendant committed a crime. The defendant’s association with known gang members, recent gang-related shootings in the area, and the time and place of the stop did not create a reasonable suspicion that she possessed weapons. Reversed. State v. Kimmons, 271 Or App 592 (2015).
Ability to Pay Attorney’s Fees May Not Be Inferred From Physical Ability to Commit the Crime
Rejecting the State’s argument, the court is unwilling to infer an ability to work from the defendant’s physical ability to commit assault. The court also finds that “the amount [of court-appointed attorney’s fees] is not so small that it would not present a significant burden to a person without means, and the record is devoid of any evidence regarding the defendant’s ability to pay.” Reversed. State v. Williams 271 Or App 693 (2015)
Civil Commitments – Failure to Inform the Defendant of Her Right to Subpoena Witnesses Is a Plain Error
Under ORS 426.100, the defendant in a civil commitment case must know that he or she has a right to subpoena witnesses. The fact that the defendant’s attorney knows of this right is insufficient. Where the record is silent as to defendant’s personal knowledge of his or her right to subpoena witnesses, it is a plain error by the trial court that is reviewable on appeal, even when the defense attorney fails to preserve the issue. Reversed. State v. R.D.S., 271 Or App 687 (2015)
