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OCDLA Email Summary
September 22, 2005 – October 5, 2005
This Issue:
Supreme Court Cases…………..… 2
9th Circuit Cases………………..… 3
Oregon Supreme Court Cases........ 7
Oregon Court of Appeals……....... 8
Discussion:
Article of the Week…………........ 10
From the Pond ……...………….... 12
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US SUPREME COURT
Samson v. California
Certiorari Granted: 09/27/2005
No. 04-9728
Court below: Unavailable
Full text: Unpublished
CRIMINAL PROCEDURE (Whether An Upper Term Penalty Imposed By A Judge, Not A Jury, Violates A
Defendant's Sixth Amendment Right To A Jury Trial)
The issue in this case is whether a trial judge may consider facts not considered by a jury in determining and
imposing an upper term penalty on a criminal defendant.
In a bench trial, Samson was found guilty of possession of a controlled substance. The trial judge considered
Samson’s parolee status as an aggravating circumstance and imposed higher sentence. Samson argued that a trial
judge may not consider facts other than those considered by a jury in determining sentencing. Samson further
argued, pursuant to recent Supreme Court precedent interpreting the Sixth Amendment, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt. The California Court of Appeals for the First District (court) upheld the trial court's imposition of
the upper term sentence, reasoning that Samson's parolee status was an allowable factor for a trial judge, to
determine sentencing, even though it was not evidence considered at the trial. While a defendant’s Sixth
Amendment rights usually preclude the consideration of facts not presented to a jury when sentencing, the court held
that the United States Supreme Court explicitly excluded prior convictions from this rule in Blakely v. Washington,
542 U.S. – (2004). The trial judge therefore correctly considered Samson’s previous conviction when determining
his sentence, even though this evidence was not admitted at his trial. [Summarized By Dale Nordyke]
United States v. Grubbs
Certiorari granted: 09/27/05
No. 04-1414
Court below: 377 F.3d 1072 (9th Cir. 2004)
Full text: http://caselaw.findlaw.com/data2/circs/9th/0310311p.pdf
CRIMINAL PROCEDURE (Whether Particularity And Specificity, As Demanded By Fourth Amendment Are
Satisfied Where The Curative Affidavit Is Not Shown To Person Subjected To Search Warrant)
The issue in this case is whether a curative affidavit that contains the conditions precedent to an anticipatory search
actually accompanies the warrant when the affidavit is not shown to the person or persons being subjected to the
search.
A United States Postal Inspector (Welsh) applied for and received an anticipatory search warrant based on Jeffrey
Grubbs’ (Grubbs) alleged ordering of a video containing child pornography. The “triggering conditions,” which
would make the warrant effective, were not listed on the warrant itself, but were in a 25-page affidavit which was
never presented to Grubbs or his wife. During the search, investigator found the videotape and Grubbs admitted
possessing child pornography. Grubbs filed a motion to suppress this evidence. The United States District Court for
the Eastern District of California (District Court) denied the motion to suppress on the basis that the warrant
incorporated the affidavit by reference. The District Court upheld the search even though the persons subject to the
search were not shown the affidavit that identified the triggering event. The District Court denied a motion for
reconsideration and Grubbs entered a conditional guilty plea. Grubbs appealed the denial of his motion to suppress.
The United States Court of Appeals for the Ninth Circuit (Court of Appeals) reversed and remanded the decision of
the District Court. The Court of Appeals held that the Fourth Amendment requires warrants particularly describe
the place to be searched and persons or things to be seized. The Court of Appeals stated that while facially defective
warrants have been allowed to be cured by an affidavit, the defect is not cured if the affidavit is not shown to the
person(s) being subjected to the search. The particularity requirement applies to the conditions precedent to an
anticipatory search warrant. The Court of Appeals held that officers are required to present any curative document
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to the person whose property is to be subjected to the search. Here the officers did not do so, making the search
warrant constitutionally invalid and the search illegal. [Summarized by Eric Leonard.]
Holmes v. South Carolina
Certiorari granted: 09/27/05
No. 04-1327
Court below: 361 S.C. 333 (4th Cir. 2004)
Full text: http://www.judicial.state.sc.us/opinions/displayOpinion.cfm?caseNo=25886
CRIMINAL PROCEDURE (Whether Evidence of Third Party Guilt is Sufficient to Raise a Reasonable Inference of
Appellant’s Innocence, Despite Forensic Evidence to the Contrary)
Bobby Lee Holmes (Holmes) was convicted in the South Carolina Circuit Court of York County of murder, firstdegree criminal sexual conduct, first degree burglary and robbery. Holmes was sentenced to death. Holmes appealed
and sought to introduce evidence of third party guilt in order to discredit the forensic evidence against him and
suggest police officer bias. The Supreme Court of South Carolina (the court) affirmed his conviction and sentence.
The court held that evidence of a third party’s guilt did not raise a reasonable doubt with regard to Holmes’
innocence, as required, and thus was not admissible. The court stated that the standard to present evidence of third
party guilt requires evidence that the third party committed the crime, which must be limited to the facts inconsistent
with the defendant’s guilt and raise a reasonable question with regard to the defendant’s innocence. Because there
existed strong forensic evidence against the defendant, evidence of third party guilt was insufficient to raise a
reasonable question regarding the appellant’s innocence. The court thus found that the circuit court was correct to
exclude the evidence of third party guilt. Finally, the court held that Holmes’ sentence was appropriate for his crime.
[Summarized by Valerie Hedrick]
Day v. Crosby
Certiorari granted: 09/27/05
No. 04-1324
Court below: 391 F.3d 1192 (11th Cir. 2004)
Full text: http://caselaw.lp.findlaw.com/data2/circs/11th/0410778p.pdf
HABEAS CORPUS (Whether A District Court Has The Authority To Dismiss Sua Ponte An Untimely Petition
Despite The State’s Erroneous Concession Of Timeliness)
The issue in this case is whether a district court has the authority to dismiss a habeas petition sua ponte as untimely
under the Antiterrorism and Effective Death Penalty Act (AEDPA), when the state has made an erroneous
concession of timeliness.
Patrick Day’s (Day) second-degree murder conviction and sentence were affirmed by the Florida First District Court
of Appeals. Day filed a pro se federal habeas petition after the one-year statute of limitations under AEDPA had
run. In its answer, the State of Florida erroneously conceded the timeliness of Day’s petition. Subsequently, the
United States District Court for the Northern District of Florida (District Court) dismissed Day’s petition as
untimely. The United States Court of Appeals for the Eleventh Circuit (Court of Appeals), after granting a
certificate of appealability, held that a patently erroneous concession of timeliness by the state does not impinge on
the authority of the district court sua ponte to dismiss a habeas petition as untimely under AEDPA. The Court of
Appeals reasoned that there is a critical difference between civil and habeas cases under the AEDPA, which allows
sua ponte consideration of affirmative defenses. [Summarized by Kianna Bradley]
9TH CIRCUIT
U.S. v. Cruz
No. 03-35873 (09/16/05)
Before Circuit Judges Goodwin, Brunetti, and W. Fletcher
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/66042C6E1FAA0BF78825707E004A1EA5/$file/0335873.pdf?o
penelement
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CRIMINAL LAW / SENTENCING / BOOKER
Opinion (Per Curiam): The lower court convicted Susana Cruz of various drug offenses relating to cocaine
distribution and possession. While her appeal was pending, the Supreme Court decided Booker and the Ninth
Circuit allowed Cruz to file a supplemental briefing on the application of Booker to her case. Cruz argued that her
168 month sentence violated her Sixth Amendment rights because the judge’s finding was based on a fact not found
by the jury and did not follow the mandatory guidelines system. The Ninth Circuit held that Cruz’s case did not fall
under the exceptions to the rule that new constitutional laws do not apply to convictions that have become final. The
Ninth Circuit also concluded that Booker was not retroactive, because it did not meet the Teague exceptions that
new rules must be substantive or implicate fundamental fairness and accuracy of criminal proceedings. Finally, the
Ninth Circuit held that Booker does not apply to cases that were final before the Supreme Court decided Booker.
The court decided Cruz’s case on May 7, 2001, long before Booker was decided. AFFIRMED. [Summarized by
Megan Balogh]
U.S. v. Flores-Montano
No. 04-50497 (09/14/05)
Before Circuit Judges B. Fletcher, Rymer, and Fisher
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/9CC5DF22A4B3EFCB8825707C004C62B2/$file/0450497.pdf?o
penelement
CRIMINAL PROCEDURE / BORDER SEARCHES / NARCOTICS / SUSPICION REQUIREMENT
Opinion (Per Curiam): Manuel Flores-Montano drove to the Mexican-U.S. border. The inspector saw that Flores
was shaking and avoided eye contact, tapped on the gas tank, noted that it sounded solid, and brought a narcoticssniffing dog. The dog alerted the officer to the presence of narcotics, and within an hour, a mechanic removed the
gas tank and found kilos of marijuana. Flores was charged with narcotics importation. Flores moved to suppress the
evidence of the dog sniff. The district court granted the motion, the Ninth Circuit affirmed, but the Supreme Court
reversed, holding that no suspicion was required to perform a gas tank search at the border. On remand, the district
court denied Flores’ motion to suppress the dog sniff evidence, the argument for which he dropped on appeal and in
its place advanced a different argument, which was that both 19 USC sec. 1581(a) and 19 USC sec. 482 govern
border searches. The difference between the two sections is that sec. 482 requires that border inspectors have
“reasonable cause to suspect” in order to carry out a search that is at least minimally damaging. The Ninth Circuit
relied on its own precedent to hold that sec. 482 applies only to material that has already passed through the border.
Only sec. 1581, which has no requirement for suspicion before inspection at the border, applies to border
inspections. AFFIRMED. [Summarized by Peter Johnson]
Burrell v. McIlroy
No. 02-15114 (09/19/05)
Before Circuit Judges Kleinfeld, Callahan, and Oakes, Senior Circuit Judge for the Second Circuit
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/EC61AD66E5F739CA88257081004EA16A/$file/0215114.pdf?o
penelement
CRIMINAL PROCEDURE / FOURTH AMENDMENT / ARREST AND SEARCH
Opinion (Callahan): Stephen Burrell was arrested and his apartment was searched. Prior to the search, Officer
McIlroy received information, from three separate informants, that Burrell transported cocaine from California.
McIlroy requested a search warrant and had Officer Rector continue surveilling Burrell’s apartment. When Burrell
left, Rector followed him and detained him. Burrell then refused to allow officers search his place. After the officers
were notified by phone that a search warrant had been issued, they searched the apartment. Based on this evidence, a
federal grand jury indicted Burrell of being a convicted felon in possession of a firearm. Burrell sued the officers
under 42 U.S.C. § 1983 for violating his Fourth Amendment rights and the district court granted the officers’ motion
for summary judgment. Burrell appealed. The Ninth Circuit held that, based on the assumption that the encounter
was an arrest and the police lacked probable cause, a reasonable officer in the Rector’s position would have believed
he had probable cause to forcibly arrest Burrell. The Court stated that when officers know that a drug dealer has
shot someone and that person continues to possess a firearm, as occurred here, officers may be permitted to assume
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he may be armed and dangerous. Moreover, as this case occurred prior to another case’s contrary determination,
delivery of a search warrant was not required at the outset of the search. AFFIRMED. Dissent by Judge Oakes.
[Summarized by Julia Smith]
U.S. v. Hernandez
No. 04-50286 (09/14/05)
Before Circuit Judges B. Fletcher, Rymer, and Fisher
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/56C08DB7200668AB8825707C004C23A7/$file/0450286.pdf?op
enelement
CRIMINAL PROCEDURE / ROUTINE SEARCH / NARCOTICS / REASONABLE SUSPICION
Opinion (B. Fletcher): A narcotics-sniffing canine alerted the authorities that drugs were in Arturo Hernandez’s car.
The customs official used a screwdriver to pull the panel from the inside of the driver’s door to reveal packages of
marijuana. Further search of the car revealed 8 kilograms of marijuana concealed in the car’s interior panels.
Hernandez moved to suppress evidence, claiming the search was intrusive and not routine. The Ninth Circuit held
that the search was routine because the inspectors did not need any reasonable suspicion before conducting the
search. The Ninth Circuit found that the inspectors did not need any reasonable suspicion, because the initial search
caused no significant damage or destruction to the vehicle to the extent that it made the vehicle unsafe and the
inspectors did not conduct the search in a particularly offensive manner. AFFIRMED. [Summarized by Nicholas
Kuwada]
U.S. v. Chaudhry
No. 04-50421 (09/14/05)
Before Circuit Judges B. Fletcher, Rymer, and Fisher
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/91359AC97920D9858825707C004C3D53/$file/0450421.pdf?op
enelement
CRIMINAL PROCEDURE / SEARCH AND SEIZURE / FLORES-MONTANO DOCTRINE
Opinion (B. Fletcher): Chaudhry appealed her conditional conviction of importation of marijuana because she
believed there was an unreasonable search of her vehicle. Chaundhry was stopped at the border and her pickup
truck was searched including having a 5/16th-inch hole drilled into the bed. This hole revealed blue plastic material
which led the boarder agents to find several packages of marijuana under her false truck bed. The Ninth Circuit
relied upon the Supreme Court ruling in United States v. Flores-Montano which stated that the dismantling of a gas
tank in a border search was not an unreasonably search because the person had no expectation of privacy there and it
did not result in serious damage or destruction to the property. The Ninth Circuit previously followed this ruling
when it found that slashing a spare tire was not too destructive to cause a different result. The Ninth Circuit stated
that the search was considered too destructive if it caused significant damage to the vehicle or made it unsafe. In the
current case, the Ninth Circuit found that the 5/16th-inch hole in the truck bed was not significant damage to the
truck, and also that it did not reduce the safety or functionality of the vehicle. The Ninth Circuit did not make a
decision on what the threshold for too destructive would be and simply said that it did not exist in this case.
AFFIRMED. Concurrence by Judge B. Fletcher and Concurrence by Judge Fisher. [Summarized by Nicholas
Wood]
U.S. v. Kortgaard
No. 03-10421 (09/21/05)
Before Circuit Judges Brunetti, Graber, and Bybee
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/EA55B1AE87FE25C388257082007FF75A/$file/0310421.pdf?op
enelement
CRIMINAL LAW / SENTENCING GUIDELINES / ENHANCEMENT / QUESTIONS OF FACT
Opinion (Brunetti): A jury convicted Laron Kortgaard of manufacturing marijuana. Sentencing guidelines required
a base sentence of between 21 and 27 months. However, the district court judge ordered an upward departure to
between 37 and 46 months based on previous US and foreign criminal convictions. Kortgaard appealed the
-5-
conviction and the sentence. Kortgaard argued that the sentence was an erroneous on the merits and violated the
Sixth Amendment. In an unpublished opinion, the Ninth Circuit affirmed the conviction and deferred the question
of sentencing until the US Supreme Court decided Booker. In light of the Booker decision, the Ninth Circuit
vacated Kortgaard’s sentence. At the time of the district court’s decision, the sentencing guidelines were mandatory.
Upward departures were factual determinations that had to be based upon findings by the factfinder. The Apprendi
exception to this rule allowed a judge to consider the existence of prior convictions, but not to the likelihood of
recidivism. Likelihood of recidivism was a factual matter that had to be determined by the factfinder. Since the
district court used not only Kortgaard’s prior convictions, but also used a judicial finding of likely recidivism, the
upward departure was erroneous. SENTENCE VACATED AND REMANDED. [Summarized by Matt DeVore]
Sims v. Brown
No. 03-99007 (10/21/05)
Before Circuit Judges B. Fletcher, Rymer and Fisher
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/6545D465E06283DB8825708200801E34/$file/0399007.pdf?ope
nelement
CRIMINAL PROCEDURE / HABEAS CORPUS / CERTIFICATE OF APPEALABILITY
Opinion (Rymer): Mitchell Carlton Sims was convicted of first degree murder in 1987. The California Supreme
Court upheld the conviction and sentence and the US Supreme Court denied certiorari. Sims filed a petition in the
US District Court for the Southern District of California and, following an evidentiary hearing, the district court
denied all of Sims’ claims. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governed the
procedure for Sims’ review but not the merits because the AEDPA was enacted after his federal petition was filed.
Sims obtained a Certificate of Appealability on seven issues. The Ninth Circuit held: 1) Sims’ Miranda rights were
not violated when he invoked his right to silence in a custodial setting and then gave an admission of confession.;
2) Prosecutor’s peremptory challenges to two Hispanic jurors did not violate Batson v. Kentucky because the
prosecutor provided individual reasons for each juror being excused; 3) Sim’s right to an impartial jury was not
violated when a member of his jury spoke about possibly writing a book with a friend who was currently sitting on
the jury of a related trial; 4) Sims’ Eighth and Fourteenth Amendment rights were not violated by the prosecutor’s
closing argument including the final mitigating factor under CA law covering “any other circumstance which
extenuates the gravity of the crime;” 5) Trial counsel did not render ineffective assistance of counsel during the
penalty phase. The Ninth Circuit found Sims’ counsel prepared extensively for the penalty phase, introduced heart
wrenching testimony and that counsel’s preparation and performance passed Constitutional requirements. 6)
Counsel was not ineffective by failing to object to comments made by the prosecutor regarding Sims’ silence with
regard to whether Sims was sorry for committing the crimes. 7) The cumulative effect of any Constitutional errors
did not prejudice Sims. AFFIRMED. Partial concurrence and partial dissent by Judge Fletcher. [Summarized by
Charles Sherer]
Jackson v. Roe
No. 02-56210 (09/23/05)
Before Circuit Judges Reinhardt, Kozinski, and Berzon
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/CBBD7CC116E3E9E0882570840079AA2E/$file/0256210.pdf?o
penelement
CRIMINAL PROCEDURE / HABEAS CORPUS / MIXED PETITION
Opinion (Berzon): Fred Jay Jackson brought a habeas corpus petition before the district court that contained both
exhausted state claims and unexhausted state claims (mixed petition). The district court determined that Jackson
could either withdraw the unexhausted claims which would leave the procedurally barred exhausted claims, or leave
in the unexhausted claims which would result in the dismissal of the petition without prejudice. Jackson filed a
motion requesting his petition be held in abeyance until he exhausted all claims in state court. The district court
denied the petition and Jackson appealed. The Ninth Circuit applied the ruling from the Supreme Court in Rhines v.
Weber which stated that district courts did have the discretion, in limited circumstances and for good cause, to stay a
mixed petition until all claims were exhausted. The Ninth Circuit held that, in this case, the district court had not
correctly applied the “good cause” standard because the standard had been determined between the district court’s
determination and the Ninth Circuit hearing the petition. The Ninth Circuit remanded the case back to district court
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to apply the correct standard instead of the “extraordinary circumstances” standard the district court had used in
denying the stay. VACATED AND REMANDED. [Summarized by Michael Elliott]
U.S. v Dare
No. 04-30202 (09/23/05)
Before Justices O’Scannlain, Leavy, and Bea
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/BDDDB8045ABB4AD68825706E004FEDDF/$file/0415885.pdf
?openelement
CRIMINAL PROCEDURE / SIXTH AMENDMENT / MANDATORY SENTENCING
Opinion (Leavy): After spending hours drinking alcoholic beverages, Stephen Douglas Dare sold an undercover
informant a bag of marijuana at his home. He asked the informant if he wanted to smoke some with him.
The informant refused, and Dare grabbed a shotgun, and asked someone else in the home if he wanted to shoot it
outside. The man declined, and Dare opened the front door, and fired it into the air, aiming over a wood pile. He
was later convicted of discharging a firearm in the course of a drug crime, doubling his minimum sentence. The
standard used in determining whether or not he discharged the weapon was “preponderance of the evidence”. Dare
appealed, claiming that the sentencing was a violation of his Sixth Amendment rights, and that a jury should have
determined beyond a reasonable doubt whether the gun was discharged. The Ninth Circuit found that Harris v
United States was the leading legal authority, and the trial court acted properly within its guidelines. AFFIRMED.
Dissent by Justice Bea. [Summarized by Bill Niese]
OREGON SUPREME COURT
State v. Ciancanelli
Case No.: S49707 http://www.publications.ojd.state.or.us/S49707.htm
AREA OF LAW: CONSTITUTIONAL LAW
HOLDING: (Opinion by Gillette, J.; Dissent by De Muniz, J.) Oregon law which makes it a crime to direct, manage,
finance, or present a live public show in which participants engage in sexual conduct violates the free expression
rights guaranteed by Article I, section 8, of the Oregon Constitution and does not fall under a well-established
historical exception that the framers did not intend to reach.
Ciancanelli operated an “adult-oriented” business which offered a menu of “shows” to be performed for paying
customers. Ciancanelli was charged with promoting unlawful sexual conduct in a public show and promoting
prostitution. At trial, he demurred on the ground that the two statutes under which he was charged violated his rights
of freedom of expression guaranteed by the state and federal constitutions. The trial court overruled the demurrers.
The Court of Appeals held that, assuming the statute regulates "expression," the regulation is contained within a
historical exception to the protections of Article I, section 8, as evidenced by extensive regulation of nudity and
sexual conduct at the time of the adoption of the constitution. Although live sex shows may be expression,
regulation of such shows is justified by the state's legitimate interest in protecting public health and welfare. The
Supreme Court held that the statute making it a crime to direct, manage, finance or present a live public show in
which participants engage in sexual conduct violates Article I, section 8 of the Oregon constitution because it is
directed at a form of expression. Further, the statute does not fall within the well-established “historical exception”
to the constitutional prohibition on enactment of such laws. Affirmed in part and reversed in part. [Summarized by
Laura Watts.]
City of Nyssa v. Dufloth/Smith
Case No.: S49963 http://www.publications.ojd.state.or.us/S49963.htm
AREA OF LAW: CONSTITUTIONAL LAW
HOLDING: (Opinion by Gillette, J.; Dissent by De Muniz, J.) A law is unconstitutional on its face if it is directed,
by its terms and its actual focus, on restraining a particular variety of expression and does not fall within a well-
-7-
established historical exception to the prohibition against such laws in Article I, section 8 of the Oregon
Constitution.
Dufloth and Smith (Dufloth) sought review from the Court of Appeals decision affirming Dufloth’s conviction for
violating the provision of the Nyssa City Code (code) prohibiting nude dancers from being within four feet of
patrons. The Oregon Supreme Court noted that it would continue to use the Robertson framework to analyze
challenges brought under Article I, section 8 of the Oregon Constitution. The Court held that the code restrains free
expression because it applies only to one disfavored type of communication in one disfavored type of establishment.
The Court also held that the code did not fall within any well-established historical exception to the prohibition
against such laws in Article I, section 8 of the Oregon constitution, and was therefore unconstitutional on its face.
Reversed and remanded. [Summarized by Darin Dooley.]
OREGON COURT OF APPEALS
State v. Schneider
Case No.: A118922 http://www.publications.ojd.state.or.us/A118922.htm
AREA OF LAW: CRIMINAL PROCEDURE
HOLDING: (Opinion by Landau, J.) 1) To determine if a delay before trial is unreasonable, a reviewing court must
consider all circumstances attending the delay, including the causes of the delay and whether or not the accused
consented to it. 2) Under the state constitution, a person arrested for DUII has no right to counsel before being given
a breath test unless he asks for counsel prior to taking the test.
Schneider was arrested for DUII in March, 2000, after rear-ending a car at a red light. He was arraigned in October,
2000 on a charge of driving under the influence and various charges related to the collision. After three
continuances, two of which were consented to by Schneider, he moved to dismiss on grounds that his trial had been
unreasonably delayed. He also moved to suppress the results of a breath test taken shortly after his arrest, on grounds
that he did not consult with a lawyer prior to the test. The trial court denied the motions and he was convicted in
June, 2002. On appeal, Schneider argued, inter alia, that the trial court erred by denying his motions. The Court of
Appeals held 1) that his trial was not unreasonably delayed, because he had consented to most of the delay and the
period which he did not consent to was caused by a shortage of judges; and 2) that the breath test results were
properly admitted because under the Oregon Constitution a person arrested for DUII does not have a right to consult
with an attorney prior to being given a breath test, unless he makes a request for counsel. Affirmed. [Summarized by
Vincent Mulier.]
State v. Meharry
Case No.: A124222 http://www.publications.ojd.state.or.us/A124222.htm
AREA OF LAW: CRIMINAL PROCEDURE
HOLDING: (Opinion by Edmonds, P. J.) Search of a car is unreasonable as incident to an arrest where the car is not
in the immediate possession of the defendant such that it can be considered an extension of the defendant’s person.
Meharry was arrested outside a store after failing a field sobriety test. Believing that Meharry was under the
influence of intoxicants other than alcohol, the officer searched her person and discovered a syringe and needle. He
then conducted a warrantless search of Meharry’s car, and discovered controlled substances. The trial court
determined that because Meharry’s vehicle was not in her immediate possession at the time of the arrest, that the
search of her vehicle was not justified on any of the grounds asserted by the state. The trial court therefore granted
Meharry’s motion to suppress the evidence. The state appealed, arguing that the search fell within one of three
exceptions to the warrant requirement: 1) search incident to arrest; 2) the “automobile exception”; or 3) probable
cause plus exigent circumstances. The court of appeals concluded that because Meharry’s car was in the parking lot
at the time she was contacted in the store, that it cannot be said that the car was in her immediate possession and was
an extension of her person. Thus the trial court did not err in rejecting the state’s argument based on a search
incident to an arrest. The court also determined that “automobile exception” did not apply where no exigency
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relating to the mobility of the car existed. Lastly the court rejected the state’s argument that probable cause plus
exigent circumstances justified the warrantless search where the officer testified that he searched the car incident to
Meharry’s arrest and not due to any exigency. Affirmed. [Summarized by Laura Watts.]
State v. Isom
Case No.: A120028 http://www.publications.ojd.state.or.us/A120028.htm
AREA OF LAW: CRIMINAL PROCEDURE
HOLDING: (Opinion by Schuman, P.J.) An erroneous post-prison supervision term requires ‘resentencing’ under
ORS 138.222(5) and, therefore, requires the appellate court to remand the entire case for resentencing.
Isom was convicted of attempted aggravated murder, assault, and felon in Possession of a restricted weapon. Isom
appealed from the sentence imposed in the second amended judgment of conviction and sentence. The State and
Isom agreed that the sentencing error for her attempted aggravated murder conviction was apparent on the face of
the record. The Court of Appeals held that it could not remand for the specific, limited purpose of correcting that
error. Under ORS 138.222(5), an erroneous post-prison supervision term is an error that requires ‘resentencing’.
Thus, the entire case must be remanded. The Court also held that the trial court erroneously denied Isom the right to
be heard at sentencing. Isom never had the opportunity to address the significant increase in her maximum sentence
at her prior sentencing hearings, and she could have made a relevant allocution. Reversed and remanded for
resentencing. [Summarized by Darin Dooley.]
State v. Burshia
Case No.: A122790 http://www.publications.ojd.state.or.us/A122790.htm
AREA OF LAW: CRIMINAL PROCEDURE
HOLDING: (Opinion by Wollheim, J.) If a driving under the influence of intoxicants suspect demonstrates
symptoms of intoxication, an officer has probable cause to request a blood alcohol content analysis as the first step
in the twelve-step Drug Recognition Expert protocol to identify the presence of an intoxicating substance.
Burshia was charged with driving under the influence of intoxicants. Based on a lack of probable cause, the trial
court suppressed evidence of her blood alcohol content (BAC) analysis. Because of the BAC suppression, the trial
court also suppressed the results of Burshia’s Drug Recognition Expert (DRE) protocol. The State appealed the trial
court’s order suppressing the BAC and DRE evidence, asserting that there was sufficient evidence to constitute
probable cause that Burshia was driving under the influence of intoxicants (DUII). After her arrest, Burshia
admitted to taking “about four hits of meth from a pipe.” She consented to a breath test, which resulted in a .00%
BAC. At trial, she argued that officers had no probable cause to perform a warrantless search of her breath for
alcohol because officers did not believe her to be under the influence of alcohol. She further alleged that the breath
test was an unlawful search and seizure of her breath, producing exculpatory evidence. ORS 813.010(1) identifies
three classes of substances that can subject a person to DUII criminal liability – intoxicating liquor, a controlled
substance, or an inhalant. Because a conviction for DUII requires impairment by one of the three substances, the
first step in a DRE protocol is determination of a driver’s BAC. If the BAC is higher than .08%, there is no reason
to continue the DRE protocol because the defendant is in violation of the statute. In Burshia’s case, the Court of
Appeals held that the officers were correct to continue the DRE, as they had probable cause to continue the protocol
based on her appearance and demeanor. Once the BAC demonstrated that Burshia was not under the influence of
alcohol, the DRE would test whether she was under the influence of either a controlled substance or an inhalant.
Due to this process, probable cause was present to administer the BAC. Reversed and remanded. [Summarized by
Erin Cecil-Levine.]
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ARTICLE OF THE WEEK
Can Oregon Constitutionally Punish Uninsured Motorists By Curtailing their Rights to Car
Accident Damages? The State Supreme Court Say Yes, But the Right Answer is No
By Anthony J. Sebok (Monday, October 3, 2005)
One of the most pernicious effects of the politicization of tort law is that politicians think that the tort system is like
the tax code, in that it can be amended to promote various short-term policy goals.
The difference, though, is that unlike the tax code, tort law is part of Americans' basic liberties, and reflects a
complex set of principles built into the very fabric of the common law. As I will explain, an Oregon statute - and
lawsuit - illustrate this point.
The Oregon Law, and the Suit That Tested It
In 1999, Oregon adopted a statute, ORS 18.592(1), which prohibits an uninsured motorist from collecting
noneconomic damages if they file a lawsuit after a car accident. ("Economic" damages represent concrete sums
actually lost or paid by the plaintiff as a result of the accident; "noneconomic damages" include damages for pain
and suffering.)
Why does the statute exist? As the Oregon Supreme Court put it, it's a "stick" designed to encourage people to abide
by the public policy goal of driving with insurance.
As a "stick," it may be quite ineffective, however: Had it wanted to deter uninsured driving more effectively, Oregon
might, for example, have increased the criminal penalties for driving without insurance.
Indeed, it seems the statute is not very well-known: I made a brief, albeit unscientific, survey of colleagues in
Oregon last week and I can assure you that even lawyers and law professors had never heard of it (except for those
who knew about the recent case in which it was tested!).
The Suit That Tested the Oregon Law
The statute came into play when uninsured motorist Elisa Lawson was in a car accident with Spencer Hoke. She
sued Hoke, who conceded that he was negligent. The judge awarded Lawson $4210 in economic damages (lost
earnings, medical expenses, and the cost of repairing the car), and $5790 in noneconomic damages (pain and
suffering).
But Hoke -- citing the 1999 statute -- appealed the judgment of $5790, pointing out that the statue was plainly
fulfilled: Lawson was uninsured, and the damages were noneconomic.
An Oregon Court of Appeals agreed with Hoke, as did the Oregon Supreme Court- even in the face of a
constitutional challenge to the law by Lawson.
The Court Should Have Struck Down the Oregon Law as Unconstitutional
Though the courts decided against her, Lawson was right: The Oregon statute violates a number of important
principles of law, including Oregon's constitutional law.
The Oregon Supreme Court conceded the following principles of law: First, Article I Section 10 of the Oregon
Constitution guarantees to Oregonians a right to a remedy for those "absolute common-law rights" that were in
existence when the constitution was ratified in 1857. Second, as the Oregon Supreme Court conceded, in 1857 there
was an absolute common-law right to recover damages for negligence arising from traffic accidents, and which now
extends to automobile accidents.
Lawson brought a negligence suit. The suit arose from a traffic accident. So isn't she protected by the state
Constitution in seeking damages for the accident?
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The Oregon Supreme Court said no. It reasoned that her right was conditioned on "plaintiff's having a license to be
at the place where her injuries occurred."
But Lawson's right was "absolutely" - not conditionally -- guaranteed by the Oregon Constitution. For this reason and others I will now explain - the Court's decision was wrong: Taking that right away was unconstitutional.
The Flaws in the Court's Analogy to Contributory Negligence
In an attempt to support its reasoning with an analogy, the Court noted that the doctrine of contributory negligence,
which was in force in Oregon in 1857, limited the right to sue in negligence to only those persons who had not acted
carelessly themselves.
(Readers will likely be more familiar with the more modern comparative negligence doctrine, which sensibly
apportions damages based on fault. But contributory negligence operates on a very different principle, which takes
the stand that a wrongdoer shouldn't be recovering money, even from someone else who's also at fault.)
The Court's analogy doesn't work - for two reasons. First, as the Court itself noted, contributory negligence was
itself a common law doctrine, not a creature of statute.
This is an important distinction because as a common law doctrine, this doctrine was part of the status quo in 1857,
when the Constitution made its guarantee. In contrast, as noted above, the statute that affected Lawson wasn't passed
until 1999, and when it became law, did so through a legislature's action, not that of a common-law court.
Second, and relatedly, the disability that contributory negligence placed on plaintiffs, while unpopular among some
scholars and judges, at least had a connection with the structure of tort law. (Lots of people did--and still--defend
contributory negligence as the best interpretation of the overall structure of the common law of negligence.) The
doctrine relates to the classic tort law question of who's legally at fault with respect to the accident itself - not the
separate question of who should have done something (here, gotten insurance) before the accident ever occurred.
What Did the Framers of the Oregon Constitution Have in Mind?
The Court did not rest its argument about the Framers' intention only on the contributory negligence analogy,
however. It also pointed out that in 1857 there were states--though they did not include Oregon--that conditioned
their vehicular accident law in a similar way.
Specifically, the court pointed to cases from a handful of states where a plaintiff was barred from suing a
municipality for a defect in the road because he or she was traveling on a Sunday when the injury occurred, in
violation of the municipality's "Sabbath laws." And granted, such laws did punish motorists for something they did
before the accident: specifically, opt to illegally drive on a Sunday.
But this argument, too, has a number of flaws. First, as one of the cases, the 1874 decision in Johnson v. Irasburgh
noted, the issue of whether a municipality can be sued by someone who violates the municipality's own laws raises
tricky questions of sovereign immunity.
Second, many other jurisdictions, including the United States Supreme Court in 1859, rejected the proposition that
violation of a Sunday law could disable a plaintiff from suing in tort.
Third, and most importantly, the Oregon Supreme Court misunderstood the Sunday law cases is. Even a casual
reading of the cases reveals that they have nothing to do with a law like the 1999 Oregon statute. Instead, the cases
concern the proper scope of the common law doctrine of "per se negligence."
The doctrine of per se negligence, which is set out in the Restatement (Second) of Torts §288B, says the following:
A plaintiff who violates a law or regulation designed to regulate their "standard of conduct" is barred from bringing
a claim if their violation of that standard was a cause of their injury.
What kind of violation might count? The very kind that might cause an accident: Driving at night without headlights
on, for instance.
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Arguably, even driving on a Sunday when one is not supposed to, could cause an accident that wouldn't have
occurred if everyone was following the law, and refraining from driving. But the modern test is whether the plaintiff
violated a safety standard designed to protect against the sort of event that occurred - so the lights-on-after-darkregulation is a better example.
Lawson didn't have an accident because she was uninsured. She had an accident because Hoke was negligent. She
would have had that accident whether or not she was insured. Put another way, the status of her insurance forms - or
lack thereof - had nothing to do with one car hitting another that day. So there is no way Hoke could have raised a
per se negligence defense.
Why the Current Tort Reform Debate Seems to Have Influenced the Court
The only possible explanations for the Court's decision, I suspect, are the following:
First, the Court's members simply may not think that noneconomic damages are very important. Over the past two
decades, there has been a constant barrage of criticism of pain and suffering awards - and tort reform proposals have
often targeted such damages as inflated. So the Court may have felt less hesitation about upholding the Oregon
statute than about upholding, say, a hypothetical statute that had barred Lawson from recovering any damages at all.
Second, the Court's members may think that the state should be able to use to the tort system to promote the general
welfare. This reflects a modern concept that statutes can be used creatively to incentivize, and punish, unrelated
behavior.
But that is not the way the Framers of the Oregon Constitution would have thought of the role of statutes in 1857,
when they incorporated common-law rights as they then stood. Thus, it ought to take a constitutional amendment, or
arguably an evolution of common law - not a statute - to alter their rule. The legislature simply cannot pick and
choose which doctrines of tort law to keep and to jettison, and the courts have an obligation to force the other
branches of government to justify reforms both as a matter of law and policy.
It is both sad and bizarre that a law like this one--which makes a mess of Oregon's tort law for little obvious public
benefit--was created and then upheld.
FROM THE POND
9/20/2005
[Ocdlapond] Renunciation
Can a person renounce an attempted crime? If they are fully capable of taking a "substantial step" towards
commission of the crime but only take a baby step is it an effective renunciation?
Hypotheticals: starting the wind-up to a punch but never moving fist forward; reaching toward the intimate parts but
pulling the hand back half-way; putting the goods in a bag while in the store but then taking them right out and
placing them on the shelf; driving to the bar, getting loaded, leaving bar, pulling keys out of pocket but stopping
before entering the car.
Are these simply thought crimes?
Response:
Those all sound like complete renunciations to me. See ORS 161.430.
Response:
The possible defense of renunciation doesn’t prevent a charge. Renunciation is an affirmative defense,
which I think means that the prosecutor can properly charge even if it looks like D might be able to prove
renunciation.
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I think you’re probably right that that constitutes renunciation, but that’s a messy set of facts. A creative
prosecutor could argue that, by threatening to pull the cord, D had accomplished the crime. Then you get
into the next part of the statute about whether D took steps to prevent the harm, which is just a more
complex inquiry.
Response:
Is it possible the actions you reference don't constitute a "substantial step" in the first instance (b4 even
getting to renunciation)?
Response:
10 or 15 years ago I tried a menacing charge to the court (marcus, in pdx) and he wanted to find my client
guilty of attempted menacing. I didn't understand how one could attempt a crime which included attempt
(attempting to place in fear) as an element.
Researched and found some pre Oregon criminal code (1950s) law which suggested that attempting an
attempt was a cognizable offense.
9/22/2005
[Ocdlapond] Nice Apprendi case in 9th on scope of prior conviction exception
U.S. v. Kortgaard 2005 WL 2292046, *4 (9th Cir. September 21, 2005 ) (where defendant was convicted of
manufacturing marijana and guideline range was 21-27 months and where judge departed upward to 47 months
because of the seriousness of the defendant's past misconduct and his likelihood of recidivism, sentence reversed as
violative of the 6th Amendment under Apprendi because “seriousness” and “likelihood of recidivism” are factual
matters for the jury outside the prior conviction exception)
9/28/2005
[Ocdlapond] Oregon Constitution Article IV, Section 21
"Oregon Constitution Article IV, §21 – Acts to be plainly worded. Every act, and joint resolution shall be plainly
worded, avoiding as far as practicable the use of technical terms."
Interestingly enough, according to legislative counsel's annotations for this section, it has never been cited by an
appellate court. I would think we criminal defense attorneys may get some mileage from this provision as it seems to
me that many criminal statutes are not "plainly worded." For example, none of controlled substance regimen is
plainly worded. If you want to know if a substance is a controlled substance, the ORS are silent. You must go to the
regulations for the State Pharmacy Board. A plainly worded statute prohibiting something would tell the world
exactly what is prohibited. For instance, the legislature could say, "It is a crime to possess heroin." That would be
plainly worded statute. Since the constitution says, "shall," I am prepared to argue that the controlled substance laws
are invalid. Will anyone join me in making this argument?
Response:
I think you've got a good idea, but here's where I see the problem. What would there be to suggest that the
vagueness proscription under this provision should be read any more broadly than other vagueness
proscriptions?
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