Oregon Appellate Ct - Dec 23, 2015
by: Alisa Larson-Xu and Abassos • December 23, 2015 • no comments
Exigent Circumstances – Blood Draw – 2 1/2 Hours For a Warrant and No Officer Time to Get It = Exigency
Where the time it would take to obtain a search warrant to draw blood would lead to a significant loss of evidence, the exigent circumstances exception applies. Here, defendant was lawfully seized for probable cause of driving under the influence. Defendant was taken to a hospital where he was subjected to a blood test. The officer testified that the normal process to obtain a warrant at 2 am would have taken approximately two and a half hours, and during the whole process the officer was without much “down time” where the officer could have obtained the warrant. Accordingly, the warrantless blood draw was justified. State v. Perryman 275 Or App 631 (2015)
Reasonable Suspicion - Marijuana Odor Insufficient for Reasonable Suspicion
After stopping defendant’s vehicle for a traffic infraction, in which defendant was a passenger, the officer smelled marijuana coming from the car. The officer detained defendant to wait for a drug dog, and defendant made incriminating statements during that detention. The trial court erroneously found that the emanating odor of marijuana was sufficient to give rise to reasonable suspicion of drug activity. The trial court did not comment on the other factors that were presented as evidence (e.g., nervousness, sores of the driver, air fresheners) that could have supplemented the reasonable suspicion analysis. Thus, the appellate court remands for further proceedings to find out what really happened and whether the totality of circumstances justified defendant’s detention while waiting for a drug dog. State v. Martinez 275 Or App 631 (2015)
Preservation - Prior Bad Acts - Not Plain Error to Admit Prior Acts Without an Instruction
Defendant had two trials involving the same victim: one for menacing and harassment and one for UUV, criminal mischief, and burglary after defendant took the victim’s car without her permission. In both trials, the state sought to introduce evidence of defendant’s prior bad acts against the victim - pulling her hair, kicking her, and threatening to kill her. The court admitted the evidence under OEC 404(4) for relevance and under OEC 404(3) to show intent. In both cases, the defendant did not request a limiting instruction for the evidence or object to the court’s failure to deliver one. Because defendant did not preserve the error and the court made specific findings that balanced the costs of the evidence against its benefits, it was not plain error to admit the evidence. State v. Corbin 275 Or App 609 (2015)
