Oregon Appellate Ct - Dec. 30, 2015

by: Abassos and Erin Roycroft • December 30, 2015 • no comments

Attenuation - The Purpose and Flagrancy Factor Is Objective, The Officer's Subjective Intent is Irrelevant

To determine whether an unlawful police action is attenuated from evidence found after the illegality, a 5 factor analysis is used:

• the temporal proximity between the unlawful police conduct and the discovery of the challenged evidence;
• the presence of mitigating circumstances;
• the presence of intervening circumstances;
• the purpose and flagrancy of the unlawful police conduct; and
• the nature, extent, and severity of the constitutional violation.”

Here, the officer stopped defendant for ducking into some bushes just off a sidewalk, found a warrant and during the arrest on the warrant found methamphetamine. The temporal proximity was "right at the same time". There were no mitigating circumstances. The arrest warrant was not an intervening circumstance because it was a direct consequence or objective of the unlawful detention, which was investigatory in nature. (See State v Benning and State v Bailey, overturning State v Dempster.) The constitutional violation was severe, not limited, because it was not incidental to the discovery of the warrant; rather it was the cause of it. Finally, "purpose and flagrancy" focuses on whether the the constitutional violation should have been obvious to the officers. The officer's subjective intent and motivations are irrelevant. Here, the officer saw something unusual and took a "shot in the dark to see what might turn up". Thus, the factor weighs in favor of suppression, as do all the other factors. State v Jones, 275 Or App 771 (2015).

A Concurrence Instruction Is Required When The State Has Advanced Both Accomplice and Principal Liability

Where the state has presented theories of guilt under both accomplice and principal liability, the defendant is entitled to a jury instruction requiring that the requisite number of jurors required for guilt agree on the theory of liability. Here, the defense failed to request such an instruction and the appellate court still reverses as plain error. The court finds that, after State v Phillips, the error was obvious and it was grave because defendant was sentenced to 70 months in prison and the evidence of defendant's principal liability was equivocal. State v Gaines, 275 Or App 736 (2015)

Setover - Restraining Order Hearing - Abuse of Discretion to Deny both the Petitioner's Witness and a Setover on the Grounds of Judicial Economy

It was an abuse of discretion for the judge in a restraining order hearing to refuse to hear the petitioner's witness solely because the judge decided the hearing shouldn't go beyond 30 minutes. The judge needed either to let the witness testify on the day of the hearing or continue the hearing to allow the witness to testify.

Although we appreciate the demands of the trial court’s docket, there is no expla- nation in the record as to why, if other cases prevented the court from hearing petitioner’s sole witness that day, the case could not have been continued. At least on the record before us, a continuance for the purpose of hearing peti- tioner’s witness would have imposed a minimal burden on the court system while also ensuring that petitioner had a fundamentally fair opportunity to present his case. JD v Klapatch, 275 Or App 992 (2015).