Welcome to The Library
| Line 74: | Line 74: | ||
[[File:Wiretap.jpg|x150px|right]] | [[File:Wiretap.jpg|x150px|right]] | ||
| − | <h4> | + | <h4>Attorney Fees</h4> '''Trial Court Must Make a Record of Defendant’s Ability to Pay''' |
| − | + | A court may not impose attorney fees upon a Defendant unless the court makes a record of Defendant’s particular circumstances from which the trial court could find Defendant “is or may be able” to pay the fees. | |
| − | [ | + | Here, Defendant was ordered to pay $400 in attorneys fees. His attorney had informed the trial court that Defendant did not work and had no money. The state did not provide any evidence to the contrary. The order to pay was reversed because the trial court record said nothing about Defendant’s particular circumstances and the state has the burden to show he can pay. [http://www.publications.ojd.state.or.us/Publications/A148382.pdf State v. Pendergrapht] |
| + | |||
| + | <h4>Venue</h4> '''State Must Show Where Defendant Was Located on Expiration of Ten Day Period''' | ||
| − | + | In order to prove venue for failure to register as a sex offender under ORS 131.305(1), the state must show where the defendant was on the expiration of the 10-day period. State v. Depeche and State v. Macnab. Here, the state showed that defendant moved out of a treatment facility and that he didn’t register within ten days of that move. But thestate did not show where defendant was on day ten or establish the standard for alternative venue under ORS 131.325. The fact that defendant ultimately resurfaced in Multnomah county does not establish venue in that county. [http://www.publications.ojd.state.or.us/Publications/A143564.pdf State v. Thompson] | |
| − | + | <h4>Speedy Trial</h4> '''Eight-Year Delay Following Failure to Appear is “Reasonable”''' | |
| − | + | Defendant does not implicitly consent to a delay by failing to appear to court. However, the amount of delay that follows a failure to appear is reasonable where the defendant knew that he was required to appear and that failing to do so would result in the issuance of a warrant for his arrest. Here, the defendant failed to appear for a pretrial conference in 2000, and the state didn’t execute the warrant for his arrest until 2008. The court holds that although defendant did not consent to the delay, that portion of the delay was nonetheless reasonable. [http://www.publications.ojd.state.or.us/Publications/A141240.pdf State v. Hernandez-Lopez] | |
| − | + | <h4>Unlawful Extension of a Stop</h4> '''Must Have Reasonable Suspicion of the Crime Officers Are Investigating''' | |
| − | + | “An officer’s reasonable suspicion about certain crimes does not justify the officer’s extension of a stop to conduct an investigation of another crime for which the officer does not also have reasonable suspicion.” An officer does not have reasonable suspicion of PCS based on (1) furtive movement, (2) rotting teeth, (3) general nervousness, and (4) possible car theft and attempt to elude police officer. | |
| − | + | Here, defendant was stopped for failure to wear a seatbelt, and the officer saw him reach toward the passenger floorboard before approaching the car. Defendant did not have a license, insurance, or registration documents with him, and he told the officers that he had borrowed the car. When officers asked him to step out of the car, he acted nervously, rolled up the windows, and reached for his keys. Ultimately, the officers conducted a dog-sniff on the car and found drugs. Under these circumstances, the officers did not have reasonable suspicion to extend the stop to investigate for drugs, even if they could have investigated theft of the car or attempting to elude a police officer. [http://www.publications.ojd.state.or.us/Publications/A145415.pdf State v. Kentopp] | |
| − | + | ||
| − | + | ||
| − | + | <h4>Preservation</h4> '''Authentication''' | |
| − | + | Defendant’s appellate argument regarding authentication of a photograph was not preserved by a trial argument that there was a discovery or Due Process violation. Nor is an authentication argument preserved by a general objection of “Foundation”. [http://www.publications.ojd.state.or.us/Publications/A145184.pdf State v. Ritchie] | |
| − | + | <h4>Stops</h4> '''Sufficient Show of Authority - Mere Conversation Not Unlawful''' | |
| − | + | Under a totality of the circumstances approach, the interaction of the two plain clothes police officers with the Defendants was not a sufficient show of authority to constitute an unlawful seizure where the officers flashed their badges but calmly and casually spoke to the Defendants in their parked car. | |
| − | + | Here, Defendants were sitting in a parked car in a parking lot under observation by plain clothes police officers due to suspected drug trafficking in the parking lot. The police officers approached the car on either side, rapped on the windows, and showed their badges. The officers suggested to the Defendants that their behavior was suspicious and that they were trespassing. At that point, one Defendant dropped four bindles of drugs from her hand. Defendant argues that the interaction between the police officers and the Defendants before the Defendant dropped the bindles was an unconstitutional seizure. The court reasoned that while the officers approached the car in concert, they did not physically block the Defendant’s means of exiting the car. They spoke to the Defendants in a calm and conversational tone and did not draw their weapons or ask for identification. The court held that, taken together, the circumstances do not indicate a “sufficient show of authority” to constitute an unlawful seizure. [http://www.publications.ojd.state.or.us/Publications/A145982.pdf State v. Moats] | |
| − | <h4> | + | <h4>Dependency</h4> '''Child Neglect''' |
| − | + | A DHS determination of child neglect was founded where there was reasonable suspicion of a risk of harm from mom allowing dad to move back in to her house. | |
| + | |||
| + | Here, the court reverses the trial court and affirms that the DHS order was proper. First, mother had stipulated in the dependency jurisdictional hearing that father posed a risk to the minor. Second, there was independent evidence of a risk of harm. For example, the minor had reported to school officials that his father tried to stab him. The mother had been informed previously by DHS that the father was not to have contact with the minor because he was a sex offender and prohibited from having contact with children. The mother had been informed by the father’s parole officer that father had violated the conditions of his parole and that a warrant had been issued for his arrest. The court held that under these circumstances, DHS properly determined that there was reasonable suspicion that the mother had placed the minor under threat of harm. [http://www.publications.ojd.state.or.us/Publications/A148861.pdf A.F. v. Or. Dept. of Human Serv.] | ||
Revision as of 10:54, August 10, 2012
The Library
The PoolThis spot will be the entry point to the OCDLA online forum, the next generation of The Pond  |
You, yes YOU can Edit This WebsiteThe OCDLA Library of Defense is a digital manual for criminal defense built by the collective contributions of OCDLA members. Ultimately, it will contain every law, every case, every good idea, every expert and every resource an Oregon defense attorney might need. But only if you help us out. If you visit a page on this website that is missing a case or has a typo, please edit the page. You can even reorganize or rewrite the page if you're feeling ambitious. If you have any questions or suggestions, please email Alex Bassos at abassos@gmail.com Recent Blog Posts
This Week's Cases Attorney Fees Trial Court Must Make a Record of Defendant’s Ability to Pay
A court may not impose attorney fees upon a Defendant unless the court makes a record of Defendant’s particular circumstances from which the trial court could find Defendant “is or may be able” to pay the fees. Here, Defendant was ordered to pay $400 in attorneys fees. His attorney had informed the trial court that Defendant did not work and had no money. The state did not provide any evidence to the contrary. The order to pay was reversed because the trial court record said nothing about Defendant’s particular circumstances and the state has the burden to show he can pay. State v. Pendergrapht Venue State Must Show Where Defendant Was Located on Expiration of Ten Day Period
In order to prove venue for failure to register as a sex offender under ORS 131.305(1), the state must show where the defendant was on the expiration of the 10-day period. State v. Depeche and State v. Macnab. Here, the state showed that defendant moved out of a treatment facility and that he didn’t register within ten days of that move. But thestate did not show where defendant was on day ten or establish the standard for alternative venue under ORS 131.325. The fact that defendant ultimately resurfaced in Multnomah county does not establish venue in that county. State v. Thompson Speedy Trial Eight-Year Delay Following Failure to Appear is “Reasonable”
Defendant does not implicitly consent to a delay by failing to appear to court. However, the amount of delay that follows a failure to appear is reasonable where the defendant knew that he was required to appear and that failing to do so would result in the issuance of a warrant for his arrest. Here, the defendant failed to appear for a pretrial conference in 2000, and the state didn’t execute the warrant for his arrest until 2008. The court holds that although defendant did not consent to the delay, that portion of the delay was nonetheless reasonable. State v. Hernandez-Lopez Unlawful Extension of a Stop Must Have Reasonable Suspicion of the Crime Officers Are Investigating
“An officer’s reasonable suspicion about certain crimes does not justify the officer’s extension of a stop to conduct an investigation of another crime for which the officer does not also have reasonable suspicion.” An officer does not have reasonable suspicion of PCS based on (1) furtive movement, (2) rotting teeth, (3) general nervousness, and (4) possible car theft and attempt to elude police officer. Here, defendant was stopped for failure to wear a seatbelt, and the officer saw him reach toward the passenger floorboard before approaching the car. Defendant did not have a license, insurance, or registration documents with him, and he told the officers that he had borrowed the car. When officers asked him to step out of the car, he acted nervously, rolled up the windows, and reached for his keys. Ultimately, the officers conducted a dog-sniff on the car and found drugs. Under these circumstances, the officers did not have reasonable suspicion to extend the stop to investigate for drugs, even if they could have investigated theft of the car or attempting to elude a police officer. State v. Kentopp Preservation Authentication
Defendant’s appellate argument regarding authentication of a photograph was not preserved by a trial argument that there was a discovery or Due Process violation. Nor is an authentication argument preserved by a general objection of “Foundation”. State v. Ritchie Stops Sufficient Show of Authority - Mere Conversation Not Unlawful
Under a totality of the circumstances approach, the interaction of the two plain clothes police officers with the Defendants was not a sufficient show of authority to constitute an unlawful seizure where the officers flashed their badges but calmly and casually spoke to the Defendants in their parked car. Here, Defendants were sitting in a parked car in a parking lot under observation by plain clothes police officers due to suspected drug trafficking in the parking lot. The police officers approached the car on either side, rapped on the windows, and showed their badges. The officers suggested to the Defendants that their behavior was suspicious and that they were trespassing. At that point, one Defendant dropped four bindles of drugs from her hand. Defendant argues that the interaction between the police officers and the Defendants before the Defendant dropped the bindles was an unconstitutional seizure. The court reasoned that while the officers approached the car in concert, they did not physically block the Defendant’s means of exiting the car. They spoke to the Defendants in a calm and conversational tone and did not draw their weapons or ask for identification. The court held that, taken together, the circumstances do not indicate a “sufficient show of authority” to constitute an unlawful seizure. State v. Moats Dependency Child Neglect
A DHS determination of child neglect was founded where there was reasonable suspicion of a risk of harm from mom allowing dad to move back in to her house. Here, the court reverses the trial court and affirms that the DHS order was proper. First, mother had stipulated in the dependency jurisdictional hearing that father posed a risk to the minor. Second, there was independent evidence of a risk of harm. For example, the minor had reported to school officials that his father tried to stab him. The mother had been informed previously by DHS that the father was not to have contact with the minor because he was a sex offender and prohibited from having contact with children. The mother had been informed by the father’s parole officer that father had violated the conditions of his parole and that a warrant had been issued for his arrest. The court held that under these circumstances, DHS properly determined that there was reasonable suspicion that the mother had placed the minor under threat of harm. A.F. v. Or. Dept. of Human Serv. |
||||||
