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| − | <h4>Judge Cannot Stack Inference Upon Inference</h4>'''''Reasonable Suspicion''''' | + | <h4>Animal Abuse</h4>'''''Goats are Victims Too''''' |
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| − | 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.
| + | 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.” [http://www.publications.ojd.state.or.us/Publications/A145386.pdf State v. Nix] |
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| − | 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:
| + | <h4>Inventory</h4>'''''Pandora’s Closed Container of Exceptions''''' |
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| − | : "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.
| + | 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. |
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| − | '''Oregon v. Kolb'''
| + | The state’s arguments that defendant lost his privacy rights in his laptop bag are unpersuasive to the court: |
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| − | <h4>Community Caretaking Exception</h4>'''''Impound'''''
| + | *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. |
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| − | 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'''
| + | [http://www.publications.ojd.state.or.us/Publications/A143095.pdf State v. Rowell] |
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| − | <h4>“I live by the code of the convict” Is Not an Equivocal Invocation of the Right to Remain Silent</h4>'''''Miranda''''' | + | <h4>Stops</h4>'''''No Stop If Officer Says Free to Leave''''' |
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| − | 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'''
| + | 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. [http://courts.oregon.gov/Publications/A143570.pdf State v. Canfield] |
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| − | <h4>Court Cannot Revoke for Acts Occurring After Probationary Period</h4>'''''Probation Revocation''''' | + | <h4>Speeding</h4> |
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| − | 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''' | + | 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.” [http://www.publications.ojd.state.or.us/Publications/A143367.pdf State v. Patrick] |
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| − | <h4>Surrounding Circumstances to Show Defendant’s Predisposition</h4>'''''Entrapment'''''
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| − | 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:
| + | <h4>Juvenile Dependency</h4>'''''Hearsay Statements by Step-Child to DHS Worker Are Admissible Under Party-Opponent Exception''''' |
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| − | * "clicked a Craigslist ad “that explicitly proposed an exchange of drugs for sex”
| + | 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. [http://www.publications.ojd.state.or.us/Publications/A150208.pdf DHS v. JG] |
| − | * did not end the communication when the officer mentioned “bud or X”
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| − | * “indicated implicit knowledge of the cost and commonly exchanged quantitates of controlled substances,”
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| − | * independently introduced the topic of Ecstasy in the email exchange, as well as offered to provide Xanax and Valium.
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| − | These facts were sufficient to establish that defendant was predisposed to possess large amounts of a controlled substance.
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| − | '''State v. McDaniel'''
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| − | <h4>For Federal Treatment Center Confidentiality Laws, “Facility” Means Individual Location Not Agency</h4>'''''Hindering Prosecution'''''
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| − | 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'''
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| − | <h4>Privileged DHS Material</h4>'''''Dependency'''''
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| − | 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'''
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| − | <h4>Reversed Termination of Parental Rights Does Not Change Permanency Plan</h4>'''''Permanency Plan'''''
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| − | 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.'''
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A Digital Manual For Oregon Criminal Defense - April 28, 2024
The OCDLA Library of Defense is a comprehensive criminal defense manual built by the collective contributions of OCDLA members. Ultimately, it should 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 where a page needs reorganization, a section needs rewriting or a typo needs fixing, please edit the page. Before editing any pages for the first time, you may want to visit the how to edit page. Feel free to play in our sandbox to familiarize yourself with formatting.
If you have any questions or suggestions, please contact Editor in Chief Alex Bassos at abassos@gmail.com
The Library
Crimes
Measure 11, Drugs, Sex Crimes, Homicide, Property, DUII, Child Abuse, Other Crimes, 1970 Code, 1972 Code
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Search and Seizure
Privacy Interest, Stops, Arrests, Consent, Exceptions to a Warrant, Exceptions to Suppression, Search Warrants
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Evidence Code
Procedure, Relevance, Privileges, Lay Witnesses, Experts, Hearsay, Physical Evidence
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Self-Incrimination
Evidentiary Burdens, State Compulsion, Custody/Compelling Circumstances, Right to Silence, Impeachment
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Forensic Science
Ballistics, Bitemarks, Bloodstains, DNA, Eyewitness ID, Fingerprints, Handwriting ID, Polygraphs, Shaken Baby
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Immigration
Understanding Padilla, Aggravated Felonies, Inadmissibility, Removability, Moral Turpitude, Naturalization, Juveniles, U-Visas, Glossary
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Mental States
Civil Commitments, Fitness to Proceed, Criminal Negligence, Testing...
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Oregon Constitution
Speedy Trial, Right to Counsel, Confrontation/Cross Examination
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Defenses
Alibi, Necessity, Speedy Trial
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Trial Procedure
Charging Decision, Discovery, Right to Counsel, Pretrial Motions
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Extradition
A single page with everything you need to know about Extradition.
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Veterans and Military Service
A single page, created by Jess Barton, that contains everything you need to know about representing veterans in a criminal case.
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Dependency
Removal, Permanency, Termination of Parental Rights, Temporary Custody, Petition...
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Investigation
Ethics, Surveillance, Locating Witnesses, Interviewing, Drug Cases
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Appeals/PCR/Habeas
Post Conviction Relief
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Sentencing
Same Criminal Episode, Merger, Consecutive Sentences, Mandatory Minimum Laws, Probation
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Trial Skills
Not Yet Created
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Delinquency
Not Yet Created
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Recent Blog Articles This Week's Cases
Animal AbuseGoats 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
InventoryPandora’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.
State v. Rowell
StopsNo 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
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 DependencyHearsay 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 |
