Oregon Appellate Ct. - April 16, 2014

by: Abassos • April 16, 2014 • no comments

Testing of a Dog during an Animal Neglect Investigation is an Article I, Sec 9 Search

Where defendant’s dog was legally seized by an animal control officer because it was near-emaciated, the officer could touch, observe, and weigh the dog, but it could not extract and test blood and stool from the dog. The extraction of blood involved an intrusion into defendant's personal property and the testing of blood was a search that revealed evidence not exposed to public view (that the dog was near-emaciated from lack of food, not a disease.) Without a warrant or exception to the warrant requirement, evidence from that search required suppression:

"Although the state's argument is broadly worded, we understand the state to contend that, when police lawfully seize an animal, the owner's privacy rights must yield to the animal's right to care, such that government actions consistent with veterinary treatment do not invade defendant's privacy rights. We cannot endorse that view."

State v. Newcomb 262 Or App __ (2014).

A Search Incident to Arrest for Failure to Display a License is Limited to Weapons

“A search incident to arrest for failure to display a driver's license ordinarily "is limited to a search for weapons, because there is no reason to search an individual for evidence of that crime, which is complete upon noncompliance." Here, defendant’s pocket could not be searched, incident to arrest for failure to display, unless there were articulable facts for the officer to believe the defendant was a serious threat of harm or escape and that a search would lessen that threat. Since there were no such articulable facts, the marijuana and expired license should have been suppressed. However, while the marijuana conviction must be reversed, the expired license was harmless error since defendant offered the license and 2 other expired licenses at trial in service of the argument that it showed he had a real license that hadn't yet arrived in the mail. State v. Durando 262 Or App __ (2014)

It's Hard Out Here for a Pro Se Defendant

A trial court's exclusion of a pro se defendant's exhibit was not error where defendant did not say the right words for authentication. Defendant could have authenticated his driving record from the Washington DMV by asking the judge to go to the DMV website and look at what defendant printed out. But instead, defendant merely said to the judge that "if you were to go" to the website and "punch in my information. . . you would see" the information offered as an exhibit. Since defendant did not make a specific request, the judge did not need to do anything with the statement. Defendant also could have authenticated his exhibit through his witness, who was with him when he printed out the exhibit from the DMV website. However, defendant did not try to authenticate the exhibit; instead he tried to get the witness to talk about what the exhibit said:

"Having understood and excluded the proffered testimony as hearsay, the trial court was not required, sua sponte, to also reconsider the issue of authentication and decide whether the witness's testimony might serve to authenticate the previously excluded document."

State v. Durando 262 Or App __ (2014)