Willamette Law Online

(45 summaries)

Christene Cencer

Oregon Supreme Court

TitleExcerptFilling Date
State v. BaileyCriminal Procedure: The per se rule of State v. Dempster that “the discovery and execution of a valid arrest warrant necessarily attenuate the taint of preceding unlawful police conduct,” specifically with evidence found upon search incident to said arrest, is overturned in light of Brown v. Illinois' factor test. Officers still may lawfully arrest and then search a defendant. (11-06-2014)

Oregon Court of Appeals

TitleExcerptFilling Date
State v. KimmonsCriminal Procedure: Pursuant to Rodgers/Kirkeby, “a stop is unlawfully extended, effectuating an unconstitutional seizure, where 'an officer, without letting the person know expressly or by implication that he or she is free to leave, detains the person beyond the time reasonably required to investigate the initial basis for the stop and to issue a citation, without the requisite reasonable suspicion.'”(06-10-2015)
Barbera v. State of OregonPost-Conviction Relief: Misrepresentation by an attorney regarding post-conviction time-lines does not allow for an excuse in timely filing of petitions for post-conviction relief. Moreover, petitions for post-conviction relief do not require a notary signature.(06-03-2015)
State v. NavickasCriminal Law: Evaluating a “lawful order” pertaining to ORS 162.247(1)(b) should be done independently of the circumstances giving rise to the order given. The standard is whether a rational trier of fact could find that the order was given by one who had the authority to give such order and the lawfulness of said order could be found in substantive law. (06-03-2015)
State v. McHaffieCriminal Procedure: Consideration of all the circumstances together can create sufficient specific and articulable facts for an officer to have had reasonable suspicion to make a lawful stop. (05-28-2015)
State v. CervantesCriminal Procedure: Testimony cannot be preemptively denied on the sole basis that it may be inadmissible before the trier of fact unless exceptional circumstances arise which would allow for such preemption to occur.(05-20-2015)
Stevenson v. Board of ParoleParole and Post-Prison Supervision: Mastriano v. Board of Parole held that an order which denies the review or reconsideration of a previous order is not considered a final order subject to judicial review. Additionally, a petition which is substantively different, but, in effect, duplicates the request made in a previous petition that was denied, is not subject to judicial review. (05-06-2015)
State v. ShermanCriminal Law: Constructive possession of a controlled substance occurs when the defendant exercises control, or has the right to exercise control, over the substance. However, merely being proximately close to the substance does not indicate constructive possession. Evidence needs to be established connecting defendant to his right to control the substance and that evidence can be circumstantial, including defendant's own statements.(04-22-2015)
State v. StewartCriminal Procedure: Under the Oregon Constitution, Article VII, section 3, an appellate court is required to affirm a conviction, even if an evidentiary error occurred, if there is little possibility that the error negatively impacted the verdict. The evidence in question needs to be weighed as to whether it is “merely cumulative” or “qualitatively different” from other evidence presented in the case that led to the conviction. (04-08-2015)
Logan v. LoganFamily Law: The trial court has discretion to determine the amount and duration of spousal support that will be just and equitable. The Court of Appeals will not disturb that discretionary determination unless there was a misapplication of law under ORS 107.105.(04-01-2015)
State v. LusaretaCriminal Law: Though State v. Mills asserts that, under Article I, section 11, of the Oregon Constitution, a criminal defendant “has a waivable constitutional right to object to improper venue by way of a pretrial motion”, if the law at the time of trial allows for objection of venue to be raised after the trail has begun, it is permitted to be considered an allowable objection. (03-25-2015)
State v. ValerioCriminal Law: “Accomplice liability is both created by and limited by ORS 161.155” in that criminal liability of an accomplice can be attached to a crime that is intended but the statute does not extend the liability to the natural and probable consequence of the intended crime. (03-18-2015)
State v. DavisEvidence: OEC 412 is intended to protect victims of sexual abuse from having “degrading or embarrassing disclosure of intimate details about [their] private lives” and the prejudicial effect of such details will be weighed against the probative value of the proffered evidence. (03-11-2015)
State v. NicholsCriminal Procedure: A court can look to the cumulative “specific and articulable facts” as set out in State v. Holdorf where even if the individual “specific and articulable facts” in and of themselves are not to a level of reasonable suspicion, if under the totality of the circumstances the facts indicate a level of reasonable suspicion, then there is sufficient reasonable suspicion for an investigatory stop. (03-04-2015)
Hickey v. HickeyCorporations: The historical statutory context of ORS 60.952 is that it was enacted to reflect judicial practice and that practice has been to avoid penalizing controlling shareholders’ ownership interests in a manner that significantly departing from what was required to relieve minority shareholders from the oppressive conduct; and also to avoid increasing any value or benefit from a minority shareholders’ interest beyond what minority shareholders could reasonably expect or the fair value of the shares.(02-25-2015)
Taylor v. Portland Adventist Medical CenterAppellate Procedure: ORS 19.250(2) does not apply where a trial court judge determines to let a subsequent trial proceed following a mistrial in the same matter. The trial court judge is not making a judgment nor does the trial court's order “'effectively determine[] the action so as to prevent a judgment in the action.' It merely allows for another trial,” thus making a denial to a motion for dismissal unappealable. (02-11-2015)
State v. NascimentoCriminal Law: Under ORS 164.377(4), “Without authorization” applies to a machine limited to one function, and authorization given to use such machine for that one function, which does not constitute general authorization to use the machine for other functions outside of what was indicated.(02-04-2015)
Smith v. MillsPost-Conviction Relief: There is no Oregon statutory entitlement (under ORS 144.315, ORS 183.413, and ORS 183.445), or Constitutional entitlement (under Oregon Constitution Article 1, section 10, or the 14th Amendment of the US Constitution) to subpoena witnesses for parole consideration hearings.(01-22-2015)
Hall v. Dept. of CorrectionsAdministrative Law: Judicial review of an administrative rule is limited to its challenge on the face of the rule and not “as applied.” (12-31-2014)
State v. JacksonCriminal Procedure: Evidence obtained pursuant to an unlawful search should be inadmissible - even if said evidence is acquired from a consented search that resulted from unlawful search.(12-31-2014)
Dept. of Human Services v. L.C.Family Law: To have continued jurisdiction over a child there needs to be current threat of danger or serious loss of injury that is based in facts, and not speculation. The factual basis “cannot be based on a parent's past problems, absent evidence that the problems persist and endanger the child.” (12-24-2014)
State v. S.R.Civil Commitment: When petitioning for civil commitment as a result of mental illness, the state is not obligated to wait until a person is on the threshold of dying to petition for said commitment, but still needs to show that the person is so unable to care for their basic needs as a result of a mental disorder that they are “at risk of death in the near future.”(12-17-2014)
State v. OlendorffCriminal Procedure: After an arrest, if a request by arrestee is made to hand over personal belongings to another person and no exception pursuant to an arrest warrant exists at the time of the arrest, then the officer is to release said personal belongings to the other person as requested. (12-10-2014)
Dept. of Human Services v. T.S.Family Law: To determine whether Department of Human Services (DHS) established reasonable efforts to reunify both the mother and the father, the efforts should be viewed through the totality of the case. DHS needs to endeavor to reunify both parents, even if it appears that only one will eventually be reunified. (11-26-2014)
State v. K.M.Civil Commitment: It is not sufficient for a client to be informed by their attorney as to the possible outcomes of a hearing to determine mental illness and possible involuntary confinement. The trial judge must advise the alleged mentally ill person of their rights pursuant to ORS 426.100.(11-19-2014)
State v. MeekCriminal Law: A letter, as a form of “written communication” is not considered an “object” under ORS 163.750(1)(c).(10-29-2014)
Dept. of Human Services v. M.H.Juvenile Law: Under ORS 419B.500 and ORS 419.498(3), a termination of parental rights petition will be based upon the most recent permanency plan determination since it is based on the current circumstances of the child.(10-15-2014)
State v. CoffmanCriminal Procedure: Warrantless entrance onto residential curtilage is likely a trespass, unless the resident has given implied or express consent. When determining implied consent to enter the curtilage of a home that consists of multiple units, the Court looks at the physical layout of the units and the residents' use of the area to see whether an objective member of the public would understand that there is an implied consent to enter. (10-08-2014)
Shell v. Schollander Companies, Inc.Tort Law: This Court previously concluded that ORS 12.135 “applies to any action, 'in contract, tort, or otherwise,' regardless of the type of damages sought, so long as the action arises out of the specified construction-related circumstances.” The Court further concludes that these claims need to arise out of a construction contract. (09-24-2014)
State v. BakerCriminal Procedure: It is important to consider “whether all elements of one offense are subsumed within the elements of the other offense” when determining whether two counts should merge as one. While “underlying factual circumstances of the crime” might seemingly overlap to a degree, the statutory duplication of all elements are what analysis hinges on.(09-17-2014)
State v. CarlonCriminal Procedure: To avoid error, trial courts should ensure that when answering a jury's question, further instructions are applicable to the charges at hand and not further focusing the jury on irrelevant issues. (09-10-2014)
State v. DuvallCriminal Procedure: Trial court that assumes the jury has an understanding of a legal definition and then fails to give that definition to the jury risks having the trial remanded. (09-04-2014)
State v. DavisCivil Procedure: Under Article I, Section 11 of the Oregon Constitution, a defendant has the right for a jury to find all elements of the charged offense beyond a reasonable doubt. Issue preclusion, therefore, cannot be used to definitively establish essential facts to obtain a conviction because it hinders a jury's duty to deliberate and find every element of a crime.(08-27-2014)
State v. MooreCriminal Procedure: Under ORS 136.432.1, a court cannot suppress relevant evidence, even if obtained in violation of statutory provision, unless there is an exception under the United States Constitution or the Oregon Constitution; the rules of evidence governing privileges and the admission of hearsay; or, the rights of the press.(08-20-2014)
State v. Hamel-SpencerCriminal Procedure: Defendant has the burden to prove that multiple offenses are the result of a single criminal episode and that the first prosecutor is aware of the multiple offenses to demonstrate double jeopardy. (08-13-2014)
State v. SmithCriminal Procedure: Under ORS 161.370, trial courts have the authority to commit defendants to hospitals for treatment designed to restore their competence to stand trial. (07-23-2014)
US Bank, NA v. EckertProperty Law: Under former ORS 86.735, the appointment of a successor trustee to a deed of trust needs to be recorded with the county where the relevant property is located.(07-09-2014)
State v. RoseCriminal Procedure: Under ORS 136.583, a search warrant issued in Oregon can be executed in another state so long as the criminal matter is triable in Oregon and “exercise of jurisdiction over the recipient is not inconsistent with the Oregon Constitution or Constitution of the United States.”(07-02-2014)
State v. FernaaysSentencing: Where remand of a sentencing hearing would not materially promote the “ends of justice” the Court of Appeals has the ability to decline to exercise its discretion to remedy the statutory error. (06-11-2014)
State v. SinesCriminal Procedure: When the state is sufficiently involved in a search or seizure conducted by a private party, state constitutional protection is triggered.(06-04-2014)
Schmidt v. SladerTort Law: Direct causation, rather than reasonable foreseeability, is the sine qua non of respondeat superior liability. Evidence regarding acts that are the outgrowth of and within the scope of employment ought to be obtained and presented to the court. (05-29-2014)
Rowlett v. FaganCivil Procedure: A properly stated negligence claim cannot be dismissed on the merits after an answer has already been filed before trial.(05-14-2014)
State v. DalessioCriminal Procedure: Under State v. Moore/Coen, a defendant's trial testimony is considered tainted by the erroneous admission of unconstitutionally-obtained statements even if Defendant did not move to exclude his pretrial statement during his first trial.(04-30-2014)
State v. BistrikaEvidence: Evidence of independent crimes that threaten the safety of police officers do not need to be suppressed even if evidence is obtained as a result of unlawful police conduct.(04-23-2014)
State v. DurandoCriminal Procedure: If conviction would have occurred despite the evidence in question being suppressed then it is considered a harmless error; however, unlawfully obtained evidence that is the sole evidence leading to a conviction will be suppressed.(04-16-2014)