Oregon Appellate Ct - Dec. 9, 2015

by: Abassos and Alisa Larson-Xu • December 9, 2015 • no comments

Request for Pro Se Representation May Be Denied If It Would Be Disruptive to the Orderly Conduct of a Trial

The trial court did not err by denying defendant's mid-trial request to represent himself when (1) defendant had been very disruptive throughout the state's case, with the judge twice before threatening to have defendant removed from the courtroom and (2) defendant first requested to represent himself when the state's case was almost complete and for reasons that would have been counter-productive to his case. While the judge did not make explicit findings about how disruptive self-representation would be, the record supports an implicit conclusion that it would be disruptive based on the judge's repeated conversations and the reasons for his denial. State v Hightower, 275 Or App 287 (2015).

Scope of Consent to Search - An Offer to "Search the Vehicle" for "Anything Concerning" Does Not Include the Search of a Fanny Pack Inside the Vehicle

A search based on consent may not exceed the scope permitted by the consent. Here, defendant was stopped for a traffic infraction; the officer asked whether there was anything in the car that the police should be concerned about; and defendant said "no" and told the officer he could "search the vehicle". The officer did search the vehicle as well as a fanny pack found under the passenger seat, in which there were drugs. The first step in determining the scope of consent is to look at the request for consent to search: "a general request for consent to search a car does not extend to closed containers in the car if no other circumstances reasonably indicate that the officers are searching for something that could be hidden in those containers." In this case, there was no actual request for consent, only a vague and open-ended question. Thus, "a reasonable person would not have understood the scope of the deputies’ interest in the car to extend to the contents of the zipped fanny pack found under the passenger’s seat". Since there weren't any contextual circumstances indicating that officers wanted to look for small items and there wasn't anything about defendant's statement indicating consent to meticulously search all closed containers, the scope of consent was limited and the trial court should have granted the motion to suppress. Also, the Miranda warnings that immediately followed the search did not purge the taint from defendant's admissions to possessing the drugs found in the search. The police conduct was purposeful and flagrant, the connection between the illegality and statements is direct and unavoidable; and:

"The illegal search put defendant in the no-win position of confessing to owning the fanny pack and drugs or incriminating, by process of elimination, the other passenger in the car. Without the illegal search, defendant would not have been in that position. Therefore, the police exploited the illegal search to gain an advantage over defendant"

Reversed and remanded. State v DeLong, 275 Or App 295 (2015).

Exploitation - The Unlawful Seizure of Defendant By Ordering Him to Get Medical Treatment Was Attenuated From HIs Later Consent to Search Given to A Different Officer at the Hospital

Defendant was unlawfully seized when an officer persuaded defendant to get medical treatment after a bike crash by telling him that he could either voluntarily go with the paramedics or the officer would involuntarily take him to the hospital in a police car. However, that seizure was attenuated from a later interaction with a different officer in which a consent-based search was performed and drug evidence was found. The court finds that the consent was attenuated from the illegality because:

1. The first officer had a non-investigative community caretaking based purpose

2. Defendant was dropped off at the hospital and then voluntarily chose to seek treatment

3. The second officer's reasonable suspicion arose at the hospital after smelling a strong odor of marijuana

4. The second officer fully informed defendant of his right to refuse consent

State v Lowell, 275 Or App 365 (2015).

The Search of a Cell Phone Generally Requires a Warrant and Search Incident to Arrest Does Not Apply

An officer's search of defendant's cell phone generally requires a warrant and, in any case, is categorically not permitted pursuant to a search incident to arrest under the 4th Amendment. See Riley v California. 134 SCt 2494 (2014). Nothing new here. Just a good reminder. State v Lowell, 275 Or App 365 (2015).

Derivative Use Immunity - Co-Defendant's Statement Was Derived From Defendant's Statement Where the Latter Was Played to Induce the Former - PCR - Death Penalty

Where the district attorney told defendant and his attorney that “any information that we derive from what you tell us” “cannot ever be used against you”, that was derivative use immunity. In determining the scope of an immunity agreement, the courts should look to contract principles to determine the agreement between the parties. Here, the word "derive" is a legal term of art that could not have been understood by the attorneys to mean anything else besides derivative use immunity. Derivative evidence is "any evidence obtained by use of the immunized statement." Thus, when officers took defendant's recorded statement, played it for co-defendant and thereby induced a confession, it fell under the immunity agreement. Had defense counsel raised the issue, the state would have had the burden of proving that co-defendant's statements "derived from a legitimate source wholly independent of defendant’s immunized statement." Counsel did not raise the issue and, since defendant's statement was used by police to induce co-defendant's statement and co-defendant simply repeated the same statement at trial, counsel was constitutionally inadequate in failing to ask for suppression of derivative statements and testimony that should have been suppressed. It was unreasonable for trial counsel not to raise the issue because, there was no possible detriment to raising the issue and he knew about the immunity agreement and even raised the issue at a release hearing. Counsel's affidavit indicated that he had no strategy, he just forgot about the issue by the time that trial rolled around. Moreover, defendant was prejudiced by the failure to raise the issue because it was the centerpiece of the state's case and the only direct evidence against defendant. Aggravated Murder conviction and death sentence reversed and remanded. Oatney v Premo, 275 Or App 171 (2015).

Incriminating Statements - Recording of Defendant's Statements to Undercover Officer Were Not Improper

Gutierrez v Nooth

Civil Commitment - Intellectual Disability - A Hearing May Not Proceed Without an Evaluation

State v R.E.G., 275 Or App 239 (2015)