The Oregon Court of Appeals, in State v. Crider, 291 Or App 23 (2018), considered whether the separate crimes of failure to report as a sex offender for failing to report a new address and failure to report as a sex offender for failing to make an annual report were separate crimes for the purposes of merger and sentencing. Defendant argued these were the same crimes, and the state argued they were separate. The Court of Appeals agreed with the state, finding, among other things, it was significant that one crime was a misdemeanor, while one was a felony.
The Oregon Court of Appeals recently ruled that a law enforcement inventory policy was too broad to withstand constitutional scrutiny in State v. Steele, 290 Or. App. 675 (2018). In this case, defendant was convicted of possession of methamphetamine in the trial court. Defendant appealed, arguing that the drugs were seized illegally in violation of the Oregon Constitution. In the trial court and on appeal, the state argued that the drugs would have been found during the defendant's booking, applying the inevitable discovery doctrine, as the defendant's belongings would have been searched during booking. Defendant argued that the state could not rely on this doctrine, because the inventory policy it wanted to rely on was not valid, as it was overbroad. As the Court of Appeals reiterated in this case, "[t]o prevail on a theory of inevitable discovery by inventory, the state must prove by a preponderance of the evidence that the inventory would have been conducted according to a properly authorized administrative program so that the inventory involves no exercise of discretion, and that the evidence would have been discovered during the inventory." The Court of Appeals found that, in this case, the state failed to do that. This case shows what any good criminal law lawyer knows -- cases can be won and lost on motions. To protect your constitutional rights, whether your case is in Grants Pass, as this case was, or in Portland -- the best criminal law attorneys will review all cases carefully to see whether there are grounds for suppression or other motions.
In State v. Cole, 290 Or App 553 (2018), the Oregon Court of Appeals considered the state's argument that a man was guilty of burglary in the first degree because, when he broke into his former girlfriend's apartment and then made himself something to eat and watched TV, he broke into the apartment with the intent to steal his former girlfriend's electricity. The Court of Appeals didn't buy this argument, in part because there was no evidence of the man's intent when he broke into the apartment.
This case shows how the state can overcharge criminal cases, when less serious charges are more appropriate to the facts of the crime. Prosecutors sometimes do this so they can strengthen their negotiating position. When this happens, it may be necessary to fight back. An experienced criminal law attorney can make all the difference.
The Oregon Court of Appeals, in State v. Hollingsworth, 290 Or App 121 (2018), restated the objective standard for self-defense, in a criminal case involving unlawful use of a weapon and reckless endangering charges. At trial, the prosecution offered evidence of defendant's prior 9-1-1 calls, which were presumably baseless, to show that defendant was unreliable as a witness and that his belief that his use of force was necessary was not reasonable. As any good criminal law law attorney would do, defendant's criminal law lawyer objected to the evidence coming in. But the trial court let in evidence anyway, ruling that it was relevant. On appeal, the trial court was reversed, because, as the Court of Appeals held, the evidence was not relevant, because the reasonableness of a defendant's belief and actions must be judged from the perspective of a hypothetical reasonable person.
Recently, the Oregon Court of Appeals reviewed a case, State v. Urig, 289 Or App 693 (2018), where the defendant sought suppression of evidence found during a traffic stop. In the trial court, defendant argued that Washington County police illegally extended the traffic stop when they called defendant's probation officer and then searched defendant, instead of just issuing a ticket for not using his turn signal. The search revealed drugs, and resulted in drug charges. In ruling on defendant's motion, the trial court found that the police did not extend the traffic stop, even though it took a bit longer than it usually would have. After defendant lost the motion to suppress evidence, defendant was convicted for unlawful delivery of heroin and unlawful possession of heroin, methamphetamine, and controlled substances. In reviewing the case, the Court of Appeals held that the record supported the finding that the traffic stop was not extended, so it affirmed the trial court's decision.
At the end of November, The Oregon Court of Appeals issued another opinion discussing the inevitable discovery exception to the warrant requirement, in State v. Knapp, 289 Or App 139 (2017). In this case, the a man was driving his car with a friend, the defendant, when the cops pulled the man over for traffic violations. Instead of processing the traffic violations or telling the man and the defendant they were free to go, the cops asked if they could search. During the search, the cops found methamphetamine and drug paraphernalia, resulting in a charge for possession of a controlled substance. Asking to search -- a consent search -- is generally a valid exception to the warrant requirement for searches by law enforcement. However, as any good Portland criminal defense lawyer will tell you, cops cannot illegally extend a traffic stop, except in certain circumstances that didn't apply in this case. The criminal attorney lost a motion to suppress evidence in the trial court, but won on appeal. The issue on appeal was whether the cops proved that an exception to the warrant requirement for the search applied. The prosecution argued that the inevitable discovery exception applied, which basically says that if the cops would have got the evidence anyway if they'd stayed within the bounds of the law, then the evidence doesn't get suppressed. The Court of Appeals says that the prosecution couldn't establish that the exception applied, because there was no evidence that the cops would have found the evidence.
This case shows how important it is to file pretrial motions to suppress evidence. An experienced criminal defense attorney should be able to review a case soon after charges have been filed, in order to see if a motion to suppress is appropriate. If your constitutional rights have or may have been violated, you need to speak with lawyer right away. Call 503.893.2529 or email now to schedule a free phone consultation.
The Oregon Court of Appeals recently issued an opinion in a case involving theft and criminal mischief charges, State v. Erickson, 288 Or App 704 (2017). At trial, the defendant argued in a motion that he couldn't be convicted of theft or criminal mischief because there has been no evidence that the property involved had an owner, when the statutes defining the crimes refers to "property from an owner" and "property of another." The defendant, and his criminal law lawyer, lost the trial, but won on appeal.
This opinion shows how important it is to have a good criminal defense attorney. In Portland, Oregon, we like to win the trial before the jury or the court. But a lawyer should always cover his or her bases, and filing a motion for a judgment of acquittal, like the lawyer in this Albany case did, is one way to do that. That way, even if the trial judge doesn't agree with you, you can appeal his or her decision. Call 503.893.2529 or email now to schedule a free phone consultation.
Recently, the Court of Appeals had the opportunity to restate the rule that police may not continue to restrain an individual after officer-safety concerns dissipate in State v. Sepulveda, 288 Or App 632 (2017). In this case, police handcuffed defendant because of his aggressive, threatening stance when they went to talk to him. After handcuffing him, they frisked him, finding no weapons. Instead of taking the handcuffs off, the police requested and obtained defendants consent to further search the defendant. The search revealed methamphetamine. Based on this evidence, defendant was charged in Washington County Court with unlawful delivery of methamphetamine, ORS 475.890, and unlawful possession of methamphetamine, ORS 475.894. Defendant's criminal law lawyer filed a one-page motion to suppress evidence, based on an illegal search and seizure. Defendant lost the motion, and he was convicted. On appeal, defendant argued the motion should have been granted because the evidence was obtained during an an illegal arrest, made without probable cause. The state argued police actions in the case were justified based on officer-safety concerns. The state also argued that the motion was too short, so it didn't "preserve" the issues defendant argued on appeal.
Ultimately, the Court of Appeals agreed with defendant. First, the written motion was sufficient because it let the trial court and the state know that defendant challenged the illegal search and seizure, so the burden of proving the search and seizure were legal was on the state. Next, police have a right to use reasonable force to protect themselves from an officer-safety concern when stopping someone, including handcuffing that person, but that stop will become an arrest if the police continue to use force to detain that person after the threat dissipates. If the threat is gone and the police continue to use force, and it they don't have probable cause related to a crime, then they have arrested that person without probable cause. If they arrest without probable cause, any evidence obtained during the illegal arrest is subject to being thrown out by a motion to suppress.
This case shows a couple important things. First, some arrests are illegal. If an arrest isn't legal, it may be possible to have the evidence -- whether it is drugs, guns, weapons, or even a confession -- thrown out. But you need a good criminal law lawyer to file a motion. While a one-page motion might work, it's probably wise to file a more detailed motion. Call 503.893.2529 or email now to schedule a free phone consultation.
Under the Oregon Constitution and the U.S. Constitution, we all have a right to silence, so as not to incriminate ourselves. This is the basis for the familiar "Miranda" warnings given when police arrest a criminal suspect. Once a criminal suspect invokes or asserts his or her right to silence, police interrogation of the suspect must stop. If the police continue to ask the suspect questions afterwards, a criminal law lawyer may be able to have any statements made after the right to silence was asserted suppressed.
Suppression of post-Miranda statements was at issue in the recent Oregon Court of Appeals case of State v. Schrepfer, 288 Or App 429 (2017). In this case, the defendant was arrested for robbery charges. While in police custody, the defendant said "I am done talking," in response to police questions. Despite this statement, the police continued to question the defendant about the crime. Eventually, the defendant made statements in response to the continued police questioning. Before trial, the defendant's criminal law attorney file a motion to suppress the statements made by the defendant after he told the police he was done talking. The trial court did not agree with defendant, and it denied his motion to suppress. The Court of Appeals, however, reversed the trial court, holding that defendant's "invocation [of his right to silence] was unequivocal."
This case shows at least a couple important things. First, you do have a constitutional right to silence. Even if you make a confession or some admissions that hurt your case, you may have a basis to have that confession or those statements thrown out. But this does not happen automatically, you usually have to fight for your rights in court. A skilled criminal law attorney will know what your rights are and how to fight for them.
The Oregon Court of Appeals recently discussed a criminal defendant's privacy rights in abandoned property in State v. Ipsen, 288 Or App 395 (2017). In this case, defendant's was accused of taking pictures of people using the bathroom at a Starbucks by leaving a hidden camera in the bathroom that looked like a cell phone charger. After an employee found the charger, which the employee suspected was actually a hidden camera, the employee turned the camera over to the police. The police then held the camera as lost property, as it was not clear that the charger was a camera or evidence of a crime. Later, the police inspected the charger, discovering that it was actually a hidden camera and it contained photos of patrons using the bathroom. A police investigation revealed that defendant was the probable owner of the camera, and defendant was charged with crimes related to taking pictures of Starbucks patrons using the bathroom. Defendant's criminal law attorney filed a motion to suppress the evidence, on the grounds that the charger was illegally searched. Under the Oregon Constitution and the United States Constitution, people have privacy rights in their property, and that property cannot be legally searched or seized without a warrant unless and exception to the warrant requirement applies. In this case, the issue was whether defendant had a privacy interest in the charger that he intentionally left in the bathroom, which was open to the public, or whether he had abandoned the property by leaving it in a public location, open and accessible to the public. The trial court found that the charger was searched without a warrant, but that defendant did not have an privacy interest in the charger, leaving it where he did, so it denied defendant's motion. The Court of Appeals upheld the trial court's decision denying the motion to suppress, on the basis that the defendant had abandoned his privacy interests in the charger by leaving it in the bathroom, under the Oregon Constitution and under the U.S. Constitution.
In this case, defendant's criminal law attorney argued in the suppression motion that both the Oregon Constitution and the United States Constitution required the exclusion of the camera evidence. While both constitutions set forth similar rights, and both apply to defendants charged with state law crimes, they rights provided by each constitution are not identical. For this reason, it's often advantageous to argue for suppression based on both constitutions.