Oregon Appellate Court July 25, 2012
by: Sduclos • July 25, 2012 • no comments
Reasonable Suspicion > Judge Cannot Stack Inference Upon Inference
An officer does not have reasonable suspicion of PCS based on defendant appearing to be under the influence of drugs. The trial court found that the officer had reasonable suspicion for PCS where (1) defendant appeared to be under the influence of a central nervous system stimulant (e.g. methamphetamine); (2) people who are under the influence of methamphetamine commonly also commonly possess the implement or paraphernalia of methamphetamine use; (3) those implements are commonly retained and reused; (4) because those implements are retained and reused, they will bear evidence of prior uses; and (5) that retained evidence of prior use will include traces of methamphetamine.
The court holds that all but the first premise, which was properly grounded in officer's drug recognition evaluation expertise, are too inferential and dependent on each other to justify reasonable suspicion. For instance, the second premise unreasonably assumes that, because of the officer's training and expertise, he was able to distinguish between the effects of methamphetamine and other central nervous system stimulants. The third premise is inherently inferential because the officer did not testify as to retention and reuse. Finally, the fourth and fifth premises were pure speculation that had no basis in the record. Even if the fourth premise was found to be true, there is no basis for inferring that it applies only to methamphetamine use. The court cautions against overuse of the phrase "training and experience" by citing to a case for the proposition that:
"The phrase 'training and expertise...is not a magical incantation with the power to imbue speculation, stereotype, or pseudoscience with an impenetrable armor of veracity" State v. Daniels, 234 Or. App. 533, 539-43.
Impound > Community Caretaking Exception
Impoundment is justified under the community caretaking exception where there is a need to protect the car from damage or theft. Here, Officers arrested the defendant for driving uninsured and on a suspended license. Defendant's car contained apparently valuable property and was parked in a high-crime area. Defendant's friend, not the registered owner, arrived to pick up the car during the course of the inventory search. Under these circumstances, the impound was valid because (1) the car was in danger of theft or vandalism and (2) it was reasonable not to relinquish custody of the car to someone other than the registered owner without the owner's permission. State v. ONeill.
Miranda > "I live by the code of the convict" Is Not an Equivocal Invocation of the Right to Remain Silent
Statements by defendant were not equivocal invocations of his right to remain silent such that the officer was required to clarify whether defendant intended to invoke his right to remain silent. Defendant made statements such as "I live by the code of the convict" and he was "no rat". Defendant made it clear he was willing to answer some questions but not others and under a totality of the circumstances, a reasonable officer would not have understood defendant's statements to be equivocal statements of his right to remain silent. State v. Doser
Probation Revocation > Court Cannot Revoke for Acts Occurring After Probationary Period
A trial court retains jurisdiction to hold a probation revocation hearing after the probationary period expires when the court issues either a bench warrant or an order to show-cause before probation ends. The court may not, however, revoke probation based on acts that occurred after the probationary period. Here, the trial court retained jurisdiction to hear allegations of a 2002 probation violation even though defendant was not arrested until 2010. But the court could not base its decision to revoke on the defendant's post-2003 conduct, when his probation expired.State v. Vanlieu
Entrapment > Surrounding Circumstances to Show Defendant's Predisposition
For the purposes of proving or disproving entrapment, the circumstances of the interaction between the defendant and law enforcement "are relevant insofar as they illuminate defendant's mind at the outset." Here, defendant:
- clicked a Craigslist ad "that explicitly proposed an exchange of drugs for sex"
- did not end the communication when the officer mentioned "bud or X"
- "indicated implicit knowledge of the cost and commonly exchanged quantitates of controlled substances,"
- independently introduced the topic of Ecstasy in the email exchange, as well as offered to provide Xanax and Valium.
These facts were sufficient to establish thatdefendant was predisposed to possess large amounts of a controlled substance.
Hindering Prosecution- For Federal Treatment Center Confidentiality Laws, "Facility" Means Individual Location Not Agency
Defendants who worked at a drug treatment facility were convicted of hindering prosecution for not providing information about an individual enrolled in the facility to the police. Defendants argued that a federal confidentiality regulation, preventing the disclosure of information about individuals enrolled in alcohol and drug abuse treatment facilities, provided a complete defense. The trial court held that the federal regulations did not apply because, although the facility was a treatment center, the larger agency provided more than alcohol and drug abuse treatment. In reversing the defendants' convictions, the court holds that the federal regulation was concerned with the need to protect the privacy of people enrolled in individual facilities. Oregon v. Toland.
Dependency > Privileged DHS Material
DHS appealed the juvenile court's denial of its motion to unseal mother's DHS records from when she was a child in DHS custody. The court finds that a motion to unseal was inappropriate where the trial court's ruling was that evidence should be excluded based on privilege. DHS v MR.
Permanency Plan > Reversed Termination of Parental Rights Does Not Change Permanency Plan
Where the trial court reverses a termination of parental rights, the reversal does not also change the permanency from adoption to reunification as well. Under ORS 419B.476(2)(b), DHS made reasonable efforts to place the child in a timely manner in accordance with the "adoption" plan and therefore it was not an abuse of discretion for the court to conclude an alternative placement under ORS 419B.476 was not in the child's best interest. The court thus concluded APPLA was the best plan for the child. D.H.S. v. T.C.A.
