Police inquiries unrelated to a traffic violation when combined with physical restraint or a police show of authority, may result in restriction of personal freedom that violates Article 1, Section 9.
Eugene, OR (Vocus) May 13, 2010
The Oregon Court of Appeals has again confirmed that Oregon Dui law restricts law enforcement’s use of a traffic stop to discover other crimes. In State v. Klein (Appeals Court No. A136435, filed March 31, 2010), the court suppressed evidence of methamphetamine taken from a defendant’s clothing after a bicycle stop for bicycle traffic violations.
The defendant had been properly stopped for bicycle violations. Detention required to conduct a warrants check (which disclosed the defendant was on probation for burglary). Some brief inquiry surrounding a set of unusual-looking keys which the officer believed to be burglar tools was also appropriate. However, the officer’s further questions regarding drugs and a consented pat-down and seizure of drugs were inappropriate extensions of the detention related to the initial stop. “The officer unlawfully expanded the subject matter of the traffic stop by asking those (drug) questions without reasonable suspicion that defendant possessed drugs; and that the defendant’s consent to the search of his person was the unattenuated product of that unlawful conduct.” The case is also helpful for its citation of earlier Court of Appeals decisions consistent with this approach. See State v. Rodgers, 219 Or App 366 (2008), Affirmed 347 Or 610 (2010); State v. Kirkeby, 220 Or App 177 (2008), Affirmed 347 Or 610 (2010).
The opinion reiterates that Article 1, Section 9, of the Oregon Constitution applies to traffic stops, including Oregon Dui quoting the Rodgers and Kirkeby decisions: “Police inquiries unrelated to a traffic violation when combined with physical restraint or a police show of authority, may result in restriction of personal freedom that violates Article 1, Section 9."
The case also offers good discussion of police “show of authority” (presence of a second officer, failure to advise that the motorist is free to go, no indication to the motorist that his continued apparent acquiescence to further questioning was required). Police need not articulate any particular restraint on liberty in order to run afoul of the constitutional protections.
“Police authority to detain a motorist dissipates when the investigation reasonably related to that traffic infraction, the identification of persons, and the issuance of a citation (if any) is completed or reasonably should be completed. Other or further conduct by the po-lice beyond that reasonably related to the traffic violation must be justified on some basis other than the traffic violation.” Rodgers/Kirkeby, 347 Or at 623.
“A traffic stop is not an ordinary police-citizen encounter because, in contrast to a person on the street who may end the encounter at any time, a motorist is not free to end the encounter when he or she chooses.” See Klein.
2. Disclosure of Police Officer Personnel Files
This is an issue that comes up frequently for Oregon criminal defense attorneys. You have information that involved police officers have past issues relating to their honesty, misuse of informants, violent activities, etc. Nonetheless, the information is poorly substantiated or may be substantiated in ways you are uncomfortable setting forth in an affidavit in support of a motion to compel production. Although U.S. v. Henthorn, 931 F2d 29 (1991), was decided in federal court, because it implicates Brady v. Maryland, it addresses protections guaranteed by the United States Constitution. The defendant moved for an order requiring the prosecution “to produce the personnel files of law enforcement witnesses whom it intends to call at trial…” for evidence of perjurious conduct or other like dishonesty, en camera. The government contended that the defendant must make an initial showing that the information would be “material” to his defense. The trial court denied the defendant’s motion because of failure to make the materiality showing and ruling that the defendant has the obligation of identifying the specific wrongdoing before getting an en camera inspection.
The Henthorn court overturned the trial court and remanded the case, ordering an en camera examination of the involved agents. Citing U.S. v. Cadet, 727 F2d 1453 (9th Cir. 1984), Henthorn held that the government must disclose information favorable to the defense which meets the appropriate standard of materiality…If the prosecution is uncertain about the materiality of information within its possession, it may submit the information to the trial court for an en camera inspection and evaluation. The government has a duty to examine personnel files upon a defendant’s request for their production. Absent such an examination, it cannot ordinarily determine whether it is obligated to turn over the files.
The court further held: “The government is incorrect in its assertion that it is the defendant’s burden to make an initial show of materiality. The obligation to examine the files arises by virtue of the making of the demand for their production. However, following that examination, the files need not be furnished to the defendant or the court unless they contain information that is or may be material to the defendant’s case. Here, the record shows that the government failed to examine (the requested files). This constituted error.” 931 F2d 29. The lesson for Oregon criminal defense attorneys when confronted with the prospect of helpful information in police files is to make the motion. At a minimum, the motion will oblige the prosecution to examine the files. Be as artful as possible in the formulation of your motion in making it both broad and particularly descriptive in terms of the kinds of information being sought. In some instances, it may be necessary to assert the specific way in which the evidence sought would be material to try to keep the prosecution as honest and open-minded as could be hoped for during that examination. Be sure to indicate in your request that in the event there is “any question whatsoever” as to the information’s materiality, the court should inspect en camera, citing the appropriate case. If further information is need feel free to contact us Eugene lawyers.
For a state court case which is helpful (though not entirely on point), see State v. Johnson, 210 Or 733, rev. den. 342 P3d 654 (2007).
3. Oldies But Goodies
a. D.A. Required to Discovery and Disclose Evidence in Police Possession
Possession of evidence by the police is possession of evidence by the prosecutor. State v. Johnson, 26 Or App 651 (1976), Kyles v. Whitley, 514 US 419, 437 (1995)
Statements and witnesses’ memoranda in possession of the police are subject to discovery under the statute even when not given to the prosecutor. State v. Warren, 304 Or 428, 433 (1987).
Oregon Dui Attorney, remember: certain field sobriety tests (essentially you could argue anything verbal) are in fact testimonial. See State v. Fish (1995).
c. “Knowing” Means Knowing
In Theft by Receiving, UUMV and, in general, all thefts in which the culpable mental state alleged is “knowing,” it may be improper to instruct the jury that they can find guilt based upon a defendant “having good reason to know” rather than actual knowledge or belief as to the status of the property. State v. Thomas, 13 Or App 164, adopted by the Supreme Court in State v. Korelis, 273 Or 427 (1975).
d. Post Prison Supervision / Maximum Sentence Issue
Remember: If your client gets a five-year gun minimum on a Class C Felony, because the total prison term plus post-prison supervision can’t equal more than the five-year statutory maximum, the most PPS he could get would be whatever amount the sentence is reduced by good time (small grace: if he blows good time, he has no PPS at all). See ORS 161.610.
Veralrud & Fowler Eugene lawyer
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