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Two Post-Poston Opportunities

by: Ryan Scott • November 28, 2016 • no comments

AMENDED: See below

Situation #1: the state alleges in the indictment a bullshit reason why the counts should be joined. But since a demurrer only looks at the face of the indictment, not the facts of the case, a demurrer would certainly fail. What to do? Answer: motion for mistrial after the state rests. And yes, there's a case on point.

Situation #2: the prosecutor, over-learning the lesson of State v. Poston, lazily alleges all three bases for joinder in the indictment. And then at sentencing, it tries to claim that, contrary to the boilerplate language in the indictment, the counts aren't from the same criminal episode. Answer: equitable estoppel. State can't take opposing legal positions simply because it advances their interest to do so at the time.

It was brought to my attention that the equitable estoppel argument lost in 2011 in a case called State v. Bush. The opinion lays out the Oregon analysis:

The doctrine of equitable estoppel is "employed to prevent one from proving an important fact to be something other than what by act or omission he has led another party justifiably to believe." Stovall v. Sally Salmon Seafood, 306 Or. 25, 33, 757, *376 P.2d 410 (1988) (quoting Wiggins v. Barrett & Associates, Inc., 295 Or. 679, 689, 669 P.2d 1132 (1983)). In order to establish equitable estoppel, a party must offer evidence from which the trier of fact could find that:
"(1) a false representation (albeit an innocent one) was made (2) by someone having knowledge of the facts to (3) one who was ignorant of the truth, (4) that the statement was made with the intention that it be acted upon by the [ignorant party] and (5) that [the ignorant party] acted upon it." Paulson v. Western Life Insurance Co., 292 Or. 38, 52-53, 636 P.2d 935 (1981).

The Bush court then held that the requirements were not met:

Assuming without deciding that the doctrine might apply in some circumstances, defendant has not proved it here. Defendant does not contend that he was ignorant of the truth as to whether and which of the charged offenses arose from the same criminal episode(s). Nor has defendant made a convincing argument that he was prejudiced by the representation that the offenses arose from the same act or transaction, if it was false. If he had believed that he was prejudiced by improperly joined charges, defendant was free to move to sever the charges under ORS 132.560(3) ("If it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses under subsection (1) or (2) of this section, the court may order an election or separate trials of counts or provide whatever other relief justice requires."). Instead, for whatever reason, he did not complain until sentencing. In short, defendant has not shown that he was ignorant of the truth or that he was prejudiced by the state's representation. He has not proved equitable estoppel.

Does this foreclose the argument now? Perhaps not. The opinion was written pre-Poston, of course, and therefore the defendant would not have made the argument that the claim within the indictment of one criminal episode stopped him from filing a demurrer. (And in fact it would have stopped him, because regardless of the facts, that claim on the face of the indictment would have made the indictment immune to a Poston demurrer.)

Now perhaps a defendant could file a motion to sever, if the defendant believes it's not in fact one criminal episode. But this sets up a serious dilemma. If the prosecutor believes it's one criminal episode, then why get a court to convince her otherwise and thus subject the defendant to a greater sentence.

Compounding the problem is that the current state of the law on criminal episodes is a mess. Here is a quote from a draft of a PFR I'll be filing within a couple of weeks:

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Search Warrants for Touch ID

by: Ryan Scott • November 2, 2016 • 2 comments

If you haven't seen this yet, you will. And the courts still have not resolved compelling a defendant to provide his pin.

But, as always, Orin Kerr has something to say on this topic. He sets up the issue with these two hypotheticals:

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Do Email Preservation Letters Violate the 4th Amendment?

by: Ryan Scott • October 31, 2016 • no comments

Discussion here. Orin Kerr is always invaluable on these types of issues. Key paragraphs:

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Malheur Refuge Trial: Why Mental State Matters

by: Ryan Scott • October 30, 2016 • one comment

I did not follow the trial closely, but unlike a lot of people in a similar position, I don't have a strong opinion about the verdict, other than recognizing that the defense lawyers include some of the best lawyers in the state.

But it's plain from reading the jury instructions on conspiracy, and especially the comments of Juror #4, that what was often referred to as the defendant's "state of mind" played a large role in the acquittals.

There is one exception to my lack of strong opinion about the verdict. More precisely, I have a strong opinion about the reaction to the verdict. Many people were quick to claim "white privilege" as a reason for the acquittals. After reading the comments of Juror #4, it's obvious that the jury engaged in thoughtful and careful analysis, and claims of white privilege are not only glibly dismissive but born out of ignorance, even as they might burnish one's liberal bona fides. You may feel that in a different trial, with different jurors, black defendants might not be afforded the same care and analysis, and I might agree with that, but the fact that these jurors did their jobs is not a reason to diminish their thoughtful application of the law to the facts.

Anyway, back to the reason I'm writing this post. The verdict would seem to show that holding the state to proving the defendant's mental state beyond a reasonable doubt can result in an acquittal, even if the actions are not really in dispute. And yet, we still have defendants going to trial with the juries almost certainly being instructed erroneously on the appropriate mental state, thereby relieving the government of its burden of proof.

For reasons I have explained at length before, I believe the standard instructions on assault I, assault II, numerous theft charges, and most statutory rape offenses are erroneous: they let the jury convict on what is a lesser mental state than the law requires. If you have one of these cases, let me know, and I will provide you with sample instructions. My e-mail is ryan@ryanscottlaw.com.

Remember that when it comes to erroneous jury instructions. or the denial of correct jury instructions, there is no better standard of review on appeal. All we need are defense attorneys who take these cases to trial to adequately preserve the issues. I want to help you. Let me.

Privacy Interests in Records Kept by Third-Parties

by: Ryan Scott • October 17, 2016 • no comments

In State v. Ghim, the Oregon Supreme Court held that a defendant may have a privacy interest in “information that a third party collects and maintains for its own use.” Ghim at 436.

However, the issue is highly driven by context. Interestingly, the state – in Ghim – did not argue that as a matter of law, a defendant never had a privacy interest in documents held by third-parties. All sides agreed that whether a privacy interest existed was one that:

can vary, according to the parties’ arguments, depending on contractual and other restrictions that apply to the third party’s use and dissemination of the information, general societal norms, and the level of generality with which the government analyzes the data. See State v. Howard/Dawson, 342 Or 635, 640-41, 157 P3d 1189 (2007) (relying on the absence of any property interest or subconstitutional right or relationship that restricted a garbage company’s handling of trash once the company collected it in holding that the defendants had no protected privacy interest under Article I, section 9).”

Ghim at 437.

It is worth noting that this is an extraordinary departure from past holdings of the Court of Appeals. When Ghim was before the lower court, the Oregon Court of Appeals held:

That result is compelled by decisions of the Supreme Court and this court that have consistently held that, under Article I, section 9, an individual has no protected privacy interest in business records held by a third-party service provider—whether a phone carrier, an Internet provider, or a hospital.

State v. Ghim, 267 Or App 435 (2014), aff’d on other grounds, 360 Or 425 (2016).

In light of the stark contrast between the courts’ analyses of the same issue, the Court of Appeals analysis can no longer be considered good law.

Eyewitness IDs: This is Not the Clown You're Looking For

by: Ryan Scott • October 17, 2016 • no comments

Amusing story about a man who fired a warning shot at a knife-wielding clown. The clown ran, and the police went on a manhunt, and they found a clown hiding in the bushes. Case closed? Not exactly.

Key quote:

“the homeowner didn’t identify this clown as the correct clown,” Myers said. “His guy had a full clown costume and a mask, and the clown he saw was taller.”

Oh, and if that wasn't enough:

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How much evidence is necessary to obtain an in camera review?

by: Ryan Scott • October 15, 2016 • no comments

With far too much frequency, some judges are hesitant to grant an in camera review of Grand Jury notes. In justifying that decision, there is often a reference made to the historical secrecy of GJ notes, but (1) an in camera review avoids any of the concerns about disclosure because an in camera review, by definition, means the defendant does not see the notes unless they contain Brady material, and (2) we don't usually see such hesitancy regarding, for example, medical records, which have a far greater claim to being privileged.

It is especially strange given that the standard for obtaining an in camera review is not that high.

Generally, in determining whether to conduct an in camera inspection of such material, the court should engage in a two-step process. The first step is to determine whether the party seeking the review has “produced evidence sufficient to support a reasonable belief that in camera review might yield” relevant unprivileged evidence. Frease v. Glazer, 330 Or 364, 373, 4 P3d 56 (2000).

State v. Bray, 281 Or App 584 (2016)

A reasonable belief that it might yield relevant evidence? You mean, like a statement made during testimony that is inconsistent with a statement made to the police? In such a scenario, the GJ testimony -- often given closer in time to the statement given to the police, and given under oath -- might easily yield impeachment material.

Preserve, and preserve well. This is an issue we will win on eventually, not because the Constitution favors us (though it does), but because it is simply, fundamentally, right that the state shouldn't be allowed to hide behind Grand Jury secrecy to avoid giving over evidence that their witness may have given different evidence at GJ.

Orin Kerr on Remotely Accessing an IP Address

by: Ryan Scott • October 14, 2016 • no comments

I wonder if this argument could have implications for child porn suppression motions, for those situations where the defendant can claim he didn't know how much information he was sharing with the world when he joined a P2P network. People who have dealt with P2P networks claim that anyone going onto a P2P network must know what that entails; I'm not convinced myself that it is as intuitive or obvious as we might think, especially when the "default" setting when you download the software is "share." Might depend on what you see on the interface.

Anyway, the article by the always valuable Orin Kerr is here.

The Demographics Behind the Recent Crime Increase

by: Ryan Scott • October 14, 2016 • no comments

Are you wondering why crime is up? Who do you think is responsible for the increase? As they like the say in teasing the local news, "the answer will surprise you."

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Experience and Search Warrants

by: Ryan Scott • October 1, 2016 • no comments

Remember in the post immediately preceding this one, I suggested that additional language on the affiant's experience won't be enough to get to all the parts of the cell phone that the police can't get to in light of St v Mansor?

If that argument appeals to you, go here. Key quote:

We conclude that probable cause to search or seize a person’s cellular telephone may not be based solely on an officer’s opinion that the device is likely to contain evidence of the crime under investigation and, accordingly, that the seizure here was not supported by probable cause. We separately conclude also that, in these circumstances, the Commonwealth has not, in any event, met its burden of demonstrating that the delay of sixty-eight days between the seizure and the application for a search warrant was reasonable. We therefore affirm the Superior Court judge’s order allowing the defendant’s motion to suppress.

Great New Search Warrant Opinion Not About Cell Phones And Yet . . . .

by: Ryan Scott • September 28, 2016 • no comments

Just a couple of months ago I posted regarding a federal case on a search warrant for a drug dealer's home. That was a nice opinion. Today, the Oregon COA issued an equally great opinion, State v. Webber. Worth reading in full, but here's a worthwhile paragraph:

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The biggest sentencing news since Blakely?

by: Ryan Scott • September 14, 2016 • no comments

Well, not as big as Blakely. Not as sexy. And not constitutional. Just a matter of statutory construction. But the impact may be significant. All you need is a client charged with delivery of a controlled substance, and the odds are pretty good your client will benefit from today's opinion.

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Due Process Joinder Issues

by: Thad Betz • September 10, 2016 • no comments

We’ve all been there: clients facing a slew of crimes against alleged victim #1 and a slew of crimes against alleged victim #2. These could have been joined in the same indictment, or they could have been separate charging documents joined together. The result is the same---you are left thinking, after reading a pretty depressing joinder severance statute, ORS 132.560, that the cases or counts will remain joined together and that your client won’t get a fair trial. Its true, they won’t. Which is why fundamental fairness needs to be our focus. There are at least three different places that due process comes into play: (1) reading due process into the subfactors allowing joinder, (2) weighing whether or not joinder itself can provide for a fair trial using Rule 403, and (3) crafting specific trial procedures and jury instructions in the event of a joinder of wholly separate incidents.

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Significant Commercial Drug Offense Opinion

by: Ryan Scott • September 9, 2016 • no comments

We don't get very many opinions on the Commercial Drug Offense factors which can aggravated a simply delivery or possession to a level 8. Part of the reason is that even if you've got a good challenge, and you preserve it, it might be mooted out by the simple fact that -- even if you were to win -- the state would have more than three factors to rely on.

Anyway, this week's opinion in State v. Rankins is wonderful, and it might provide a basis for new arguments and renewed attention to the factors.

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My Wish List

by: Ryan Scott • September 5, 2016 • no comments

As most of you know, I have a number of pet issues that I push at any given time. If I seem somewhat relentless with some of the issues, it's because it takes about 6-10 years from when I start promoting an issue to when it gets resolved at the appellate courts. Some win, some lose, some win then lose. But none of them get up to the COA without (1) a case with the issue, (2) a defense attorney who is aware of the issue, (3) a defense attorney willing to preserve the issue (not always the same thing), (4) a case that goes to trial, (5) the issue losing at the trial level, (6) the defendant losing at trial, (7) an appellate attorney who raises it well, (8) an appeal that doesn't moot the issue out for some reason and (9) an appellate court that finds it worth writing about.

Depending on the issue, these can be 9 conditions that are very hard to satisfy. So I keep urging them on attorneys who I like and trust, in the hope that sheer force of numbers will allow the issue to get up at least once, fertilize the COA and produce an opinion.

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Another Reason "On Supervision" Shouldn't Merit a Durational Departure

by: Ryan Scott • September 5, 2016 • no comments

If you do felony sentencings, then you know that there is a three-step process in order for the defendant's sentence to be upwardly departed. First is notice that the state intends to prove one or more aggravating factors to the trier-of-fact. The second is actually proving that factor beyond a reasonable doubt to the trier-of-fact. And the third is the judge finding "the circumstances are so exceptional that imposition of the presumptive sentence would not accomplish the purposes of the guidelines."

I have previously written why I believe why "on supervision" never justifies an upward departure. The reason is simple: a defendant's status of "on supervision" is not remarkable. In fact, it's probably more likely than not. If so, it isn't the type of "exceptional" circumstance that the judge must find in order to upward depart.

There is a new case that probably justifies making this argument with a bit more vigor. In State v. Davilla,,the Court of Appeals reversed an upward departure on an aggravated murder conviction. It did so because the reasons given for the upward departure were insufficient.

To be clear, we are not holding that a defendant’s use of a dangerous weapon could not, as a matter of law, justify a departure sentence. Rather, we conclude that the court’s explanation here regarding defendant’s choice of a small, dull knife and the “increased pain and suffering” experienced by the victim as a result is insufficient to demonstrate why defendant’s use of a dangerous weapon in this case created circumstances so exceptional that the imposition of a presumptive sentence would not accomplish the purposes of the guidelines.

If the state has proven "on supervision", and the judge is now deciding whether to seek an upward departure, be sure to point out that "on supervision" is not exceptional, as demonstrated by the post I linked to above, but also insist that the judge put on the record the reason why "on supervision" is so remarkable in this case that it demonstrates why the guidelines sentence is not sufficient. The judge will have a much easier time explaining why a presumptive probation is insufficient, but she will likely stumble over explaining why a presumptive prison sentence, particularly a long prison sentence, is not sufficient. The key is to ask -- and ask again if necessary -- that the judge put on her reasoning. In the absence of such a request by the defendant, the Court of Appeals will be less likely to hear a complaint that the judge's lack of explanation is insufficient.

Huge Computer (and, by extension, cell phone) SW Opinion

by: Ryan Scott • July 31, 2016 • no comments

If you have a case where the police seized your client's computer or cell phone and searched it pursuant to a search warrant, then you absolutely must read last week's Court of Appeals decision, State v. Mansor.

The key issue:

Here, defendant’s challenge appears to encompass both of those concepts. As we understand it, defendant argues alternatively that (1) the warrant (even in combination with Rookhuyzen’s affidavit) was impermissibly imprecise, because it failed to identify the information on the computers’ hard drives for which the police were authorized to search; and (2) in all events, the warrant was overbroad as authorizing examination of material on the computers beyond that pertaining to defendant’s internet searches during the 15-minute period preceding the 9-1-1 call.

Four Different Applications of the Brady Doctrine

by: Ryan Scott • July 13, 2016 • no comments

Police personnel records and Brady. A nightmare, right? See the analysis here. Notable paragraph:

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Pole Cams and the 4th Amendment

by: Ryan Scott • July 12, 2016 • no comments

From a criminal law blog at the University of North Carolina

Drug Dealers, Their Homes and PC to Search

by: Ryan Scott • June 29, 2016 • no comments

Good federal case on the failure of the search warrant to connect the alleged dealer's residence with his drug activity.

Key quote:

We have never held, however, that a suspect’s “status as a drug dealer, standing alone, gives rise to a fair probability that drugs will be found in his home.” United States v. Frazier, 423 F.3d 526, 533 (6th Cir. 2005). Rather, we have required some reliable evidence connecting the known drug dealer’s ongoing criminal activity to the residence; that is, we have required facts showing that the residence had been used in drug trafficking, such as an informant who observed drug deals or drug paraphernalia in or around the residence. Compare Jones, 159 F.3d at 974-75 (finding probable cause to issue a warrant where confidential informant made drug purchases from defendant, was at defendant’s residence during monitored drug transactions, and observed defendant in possession of cocaine), United States v. Ellison, 632 F.3d 347, 349 (6th Cir. 2011) (inference was proper because reliable confidential informant had “observed someone come out of [the defendant’s] residence, engage in a drug transaction, and then return into the residence”), and Berry, 565 F.3d at 339 (“Although a defendant’s status as a drug dealer, standing alone, does not give rise to a fair probability that drugs will be found in defendant’s home, there is support for the proposition that status as a drug dealer plus observation of drug activity near defendant’s home is sufficient to establish probable cause to search the home.” (internal citation omitted)), with Frazier , 423 F.3d at 532 (inference was not proper because affidavit failed to establish informants’ reliability and informants had not “witnessed [the defendant] dealing drugs from his [new] residence,” just his old residence). Our emphasis on the fact-intensive nature of the probable cause inquiry in known drug dealer cases accords with the Supreme Court’s rejection of “rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach” when evaluating probable cause. Florida v. Harris, 133 S. Ct. 1050, 1055 (2013).
This emphasis likewise comports with the Supreme Court’s instruction that “[t]he critical element in a reasonable search is not that the owner of property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’to be searched for and seized are located on the property to which entry is sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978). Finally, our totality-of-the-circumstances probable cause inquiry for search warrants for the home of an allegedly “known drug dealer” honors the Fourth Amendment’s safeguards against unreasonable governmental intrusion into the home.
In sum, our cases teach, as a general matter, that if the affidavit fails to include facts that directly connect the residence with the suspected drug dealing activity, or the evidence of this connection is unreliable, it cannot be inferred that drugs will be found in the defendant’s home—even if the defendant is a known drug dealer. The affidavit here lacks that necessary nexus.