Oregon Appellate Ct - Oct. 28, 2015

by: Abassos, Alisa Larson-Xu and Cmaloney • November 1, 2015 • no comments

Reasonable Suspicion – Parking on a Gravel Pull Out Off Of a Public Road Does Not Provide Reasonable Suspicion of Trespass

It was not objectively reasonable for the officer to believe defendant was trespassing where the defendant had pulled off a public road and parked on the gravel just off the road. While the gravel pull out was private property, members of the public would generally understand that such an area on the side of a road is intended for vehicles to stop and park, without needing to permission to do so. Furthermore, the “No Trespassing” sign did not clearly apply to the pull out as it was on a tree near a forested area. Accordingly, the stop was not supported by reasonable suspicion and it was an error to deny the motion to suppress. Reversed. State v. Sjogren 74 Or App 537 (2015).

Expungement – Interests of Justice - Court Must Grant Expungement When Petitioner is Eligible and State Presents No Evidence

For one of the crimes listed in sec. 13 of the expungement statute, the court may only reject an otherwise eligible offense if there is clear and convincing evidence that granting a motion to set aside the offense would not serve the interests of justice. Here, defendant moved to set aside his conviction for Robbery III, an offense listed in ORS 137.225(13). The state objected, arguing that because the conviction was gang-related and the defendant was involved in another gang-related incident after the conviction, it would not be in the interests of justice to grant the motion. The trial court agreed with the state’s assessment and denied the motion in a written opinion. Because the state’s assessment of the incident was not evidence, and because the state did not present any actual evidence as to why the expungement would not serve the interests of justice, the court was required to grant defendant’s motion to set-aside. Reversed. State v. Carcamo-Tellez 274 Or App 508 (2015).