Oregon Appellate Court August 1, 2012
by: Sduclos • August 1, 2012 • no comments
Imran Ahmad, Francis Gieringer, Stacy Du Clos
Animal Abuse > Goats are Victims Too
Each individual animal identified with a count of animal abuse will qualify as a separate victim. Here, twenty counts of second degree animal abuse could not be merged into a single conviction because each separate count "identified a different animal and charged conduct by defendant toward that animal." State v. Nix
Inventory > Pandora's Closed Container of Exceptions
The Portland police inventory policy for opening closed containers designed to contain valuables (1) only applies to items in the possession of a person placed in custody, and (2) must occur prior to placing such person into a holding room or police vehicle. Here, defendant was a passenger in a stopped car, so he was stopped, but he was not "in custody" for purposes of inventory because he was only stopped as a witness. The state could not use the arrested driver's constructive possession of the bag to justify the search because the driver was already in the patrol car.
The state's arguments that defendant lost his privacy rights in his laptop bag are unpersuasive to the court:
- A denial of ownership does not itself establish an intention to relinquish all interests in the property. Defendant had a continuing privacy interest in his bag even though he initially denied owning it, then said he was holding onto it for a friend.
- Officers may conduct a search to determine the owner of lost property only when the property is actually lost, as in abandoned. There is no exception to the warrant requirement that allows officers to open a closed container in order to determine whether the contents are stolen.
- A defendant only loses his privacy interest to stolen goods that are in plain view. Here, officers suspected, but did not know that the laptop bag contained stolen goods.
Stop > No Stop If Officer Says Free to Leave
A stop occurred when police asked for defendant's identification, wrote down the defendant's information on his hand and told the defendant that he had been seen engaging in strange behavior. However, the stop ended when a police officer informed defendant that he was free to leave, even though the police officer had just told the defendant to stand in the search position with his hands behind his back. Therefore, the evidence obtained from defendant's consent to search after that point was not the product of an illegal stop. State v. Canfield
Speeding - ORS 811.111
A person may be found guilty of speeding, under ORS 811.111, if the person either drives above the statutorily designated speed limit for that type of road or drives above a posted speed limit that is different from the designated speeds. Defendant had argued, based on the language of the statute, that if the designated speed is posted then the statute wouldn't apply. The court rejects that construction: "under that interpretation, the statutory speeds. . .could not be both posted and enforced."State v. Patrick.
Juvenile Dependency > Evidence > Hearsay Statements by Step-Child to DHS Worker Are Admissible Under Party-Opponent Exception
When DHS offers a child's out-of-court statements in a dependency case, they are admissible as non-hearsay statements of a party-opponent under OEC 801(4)(b)(A), because the child is a party adverse to DHS. This applies to step-children too because DHS puts their step-child/parent relationship at risk. DHS v. JG
Per Curiams
- Under Rainoldi¸the defendant was not entitled to an instruction on a culpable mental state for possession of a weapon by a felon as to his status as a felon. State v. Bias.
