CONSTITUTION OF OREGON

 

Article I

Section 1

 

NOTES OF DECISIONS

 

      Statutory provisions making recognition as “minor political party” contingent on demonstration of support from five percent of voting electorate are not contrary to provisions of Oregon and United States Constitutions. Libertarian Party of Oregon v. Roberts, 305 Or 238, 750 P2d 1147 (1988)

 

      This section does not by itself, or in combination with section 33, Article I, create general privacy right. Does 1-7 v. State of Oregon, 164 Or App 543, 993 P2d 822 (1999), Sup Ct review denied

 

LAW REVIEW CITATIONS: 21 EL 215 (1991); 29 WLR 323 (1993)

 

Art. I, Section 2

 

NOTES OF DECISIONS

 

      Display of Latin cross on public property as veterans’ war memorial is not unconstitutional. Eugene Sand and Gravel v. City of Eugene, 276 Or 1007, 558 P2d 338 (1976)

 

      Statute and derivative rule permitting workers’ compensation claimant to refuse medical treatment on religious grounds if member of “well recognized church” was unconstitutional religious discrimination. Kemp v. Workers’ Comp. Dept., 65 Or App 659, 672 P2d 1343 (1983), modified 67 Or App 270, 677 P2d 725 (1984), Sup Ct review denied

 

      Imposing unemployment compensation tax on independent religious schools while exempting church-related schools contravenes Oregon Constitution. Salem College and Academy v. Employment Div., 298 Or 471, 695 P2d 25 (1984)

 

      Where court imposed total ban on any form of contact between parents and parents’ pastor as condition of returning child to parents’ custody, condition impinged upon parents’ right under this section and case was remanded for drafting of less restrictive condition. State ex rel Juv. Dept. v. Tucker, 83 Or App 330, 731 P2d 1051 (1987)

 

      Where commencement exercises were over before judgment was entered, action for injunction against inclusion of formal prayer in commencement exercises of high school’s graduating class no longer presented justiciable controversy and case should have been dismissed at that time. Kay v. David Douglas Sch. Dist. No. 40, 303 Or 574, 738 P2d 1389 (1987)

 

      Although child support obligor may not be allowed to continue as member of his church if he complies with support order, that result does not violate this section because compelling interest of state in requiring parents to support their children outweighs any direct burden on free exercise of religion. Berry and Berry, 95 Or App 433, 769 P2d 786 (1989)

 

      On remand from United States Supreme Court, state may, consistent with Free Exercise Clause of United States Constitution, deny unemployment compensation to former employees dismissed for use of peyote for religious purposes in Native American Church, where ingestion of peyote is prohibited by state law. Smith v. Employment Division, 310 Or 376, 799 P2d 148 (1990)

 

      Unemployment tax law distinction between employment of minister of church and employment of minister of nonchurch religious organization violates requirement of religious equality. Newport Church of the Nazarene v. Hensley, 335 Or 1, 56 P3d 386 (2002)

 

ATTY. GEN. OPINIONS: Permission by public school district for on-school-premises distribution of release time program brochures or permission slips to students is unconstitutional as practice would create impression of official sponsorship of religion, (1989) Vol 46, p 239

 

LAW REVIEW CITATIONS: 21 WLR 707, 937 (1985); 29 WLR 323 (1993); 75 OLR 1253, 1333 (1996); 37 WLR 469 (2001); 48 WLR 273 (2011)

 

Art. I, Section 3

 

NOTES OF DECISIONS

 

      Private owner of completely enclosed shopping center may prohibit dissemination of religious literature within common wall area of center without violating constitutional rights under this section of members of religious sect. Lenrich Associates v. Heyda, 264 Or 122, 504 P2d 112 (1972)

 

      Display of Latin cross on public property as veterans’ war memorial is not unconstitutional. Eugene Sand and Gravel v. City of Eugene, 276 Or 1007, 558 P2d 338 (1976)

 

      Prison rule limiting number of religious publications inmate may have in his cell did not operate to deny him his constitutional right to free exercise of religion. Taylor v. Cupp, 29 Or App 585, 564 P2d 746 (1977)

 

      Statute and derivative rule permitting workers’ compensation claimant to refuse medical treatment on religious grounds if member of “well recognized church” was unconstitutional religious discrimination. Kemp v. Workers’ Comp. Dept., 65 Or App 659, 672 P2d 1343 (1983), modified 67 Or App 270, 677 P2d 725 (1984), Sup Ct review denied

 

      Imposing unemployment compensation tax on independent religious schools while exempting church-related schools contravenes Oregon Constitution. Salem College and Academy v. Employment Div., 298 Or 471, 695 P2d 25 (1984)

 

      Where court imposed total ban on any form of contact between parents and parents’ pastor as condition of returning child to parents’ custody, condition impinged upon parents’ right under this section and case was remanded for drafting of less restrictive condition. State ex rel Juv. Dept. v. Tucker, 83 Or App 330, 731 P2d 1051 (1987)

 

      Statutory provisions making recognition as “minor political party” contingent on demonstration of support from five percent of voting electorate are not contrary to provisions of Oregon and United States Constitutions. Libertarian Party of Oregon v. Roberts, 305 Or 238, 750 P2d 1147 (1988)

 

      Although child support obligor may not be allowed to continue as member of his church if he complies with support order, that result does not violate this section because compelling interest of state in requiring parents to support their children outweighs any direct burden on free exercise of religion. Berry and Berry, 95 Or App 433, 769 P2d 786 (1989)

 

      Because this section requires that all religious organizations be treated similarly whether or not they would qualify as “churches,” Oregon may subject either all or no religious organizations to unemployment payroll tax, and court concluded legislature would prefer to tax all religious organizations rather than forfeit federal tax credit for all Oregon employers. Employment Div. v. Rogue Valley Youth for Christ, 307 Or 490, 770 P2d 588 (1989)

 

      On remand from United States Supreme Court, state may, consistent with Free Exercise Clause of United States Constitution, deny unemployment compensation to former employees dismissed for use of peyote for religious purposes in Native American Church, where ingestion of peyote is prohibited by state law. Smith v. Employment Division, 310 Or 376, 799 P2d 148 (1990)

 

      Statutory anti-discrimination scheme regulating conduct of all employers in same manner is not violative of employer’s constitutional right to freedom of religion. Meltebeke v. Bureau of Labor and Industries, 322 Or 132, 903 P2d 351 (1995)

 

      Unemployment tax law distinction between employment of minister of church and employment of minister of nonchurch religious organization violates requirement of religious equality. Newport Church of the Nazarene v. Hensley, 335 Or 1, 56 P3d 386 (2002)

 

ATTY. GEN. OPINIONS: Establishment of policy concerning religious displays in public schools, (1975) Vol 37, p 787

 

LAW REVIEW CITATIONS: 21 WLR 707, 937 (1985); 67 OLR 469 (1988); 75 OLR 1253, 1333 (1996); 84 OLR 725 (2005); 48 WLR 273 (2011)

 

Art. I, Section 4

 

ATTY. GEN. OPINIONS: Constitutionality of statute which provides for prison chaplains “including but not limited to Protestant and Roman Catholic,” (1978) Vol 38, p 1929; payment of state revenue-sharing funds to city where religiously affiliated corporation owns all property in city, (1983) Vol 44, p 20

 

LAW REVIEW CITATIONS: 21 WLR 707 (1985)

 

Art. I, Section 5

 

NOTES OF DECISIONS

 

      It is violation of this section for state, through local school district, to provide teachers and supplies to educational programs which use religious affiliation as prerequisite for admission. Fisher v. Clackamas County Sch. Dist. 12, 13 Or App 56, 507 P2d 839 (1973), Sup Ct review denied

 

      Display of Latin cross on public property as veterans’ war memorial is not unconstitutional. Eugene Sand and Gravel v. City of Eugene, 276 Or 1007, 558 P2d 338 (1976)

 

      Where commencement exercises were over before judgment was entered, action for injunction against inclusion of formal prayer in commencement exercises of high school’s graduating class no longer presented justiciable controversy and case should have been dismissed at that time. Kay v. David Douglas Sch. Dist. No. 40, 303 Or 574, 738 P2d 1389 (1987)

 

ATTY. GEN. OPINIONS: Constitutionality of proposed measure to give balanced treatment to theory of scientific creation and theory of evolution in public schools, (1981) Vol 42, p 44; receipt of state money for services of religious organization providing family counseling, (1982) Vol 43, p 11; distribution of state moneys to city owned by “for-profit” corporation, (1983) Vol 44, p 20; payment of state revenue-sharing funds to city where religiously affiliated corporation owns all property in city, (1983) Vol 44, p 20

 

LAW REVIEW CITATIONS: 21 WLR 707 (1985); 75 OLR 1253 (1996); 38 WLR 427 (2002); 85 OLR 541 (2006)

 

Art. I, Section 6

 

NOTES OF DECISIONS

 

      Prohibition is not limited to examination regarding particular religious tenets. State v. Duncan, 131 Or App 1, 883 P2d 913 (1994), Sup Ct review denied

 

      Inquiry is not permissible to reestablish credibility where veracity of witness has been placed in issue. State v. Duncan, 131 Or App 1, 883 P2d 913 (1994), Sup Ct review denied

 

Art. I, Section 8

 

NOTES OF DECISIONS

 

      Private owner of completely enclosed shopping center may prohibit dissemination of religious literature within common wall area of center without violating constitutional rights under this section of members of religious sect. Lenrich Associates v. Heyda, 264 Or 122, 504 P2d 112 (1972)

 

      Conduct is not protected by this section merely because it reflects particular attitudes. Brookes v. Tri-County Metr. Trans. Dist. of Ore., 18 Or App 614, 526 P2d 590 (1974), Sup Ct review denied

 

      Prohibitions against obscene live performance or distribution of obscene material do not violate free speech right. Film Follies v. Haas, 22 Or App 365, 539 P2d 669 (1975)

 

      [Former] ORS 260.027 and [former] ORS 260.154, limiting campaign expenditures, violate the free expression requirement of this section. Deras v. Myers, 272 Or 47, 535 P2d 541 (1975)

 

      This section, construed together with section 10, Article I, prohibits the award of punitive damages in common law defamation cases. Wheeler v. Green, 286 Or 99, 583 P2d 777 (1979)

 

      Disorderly conduct statute which made use of abusive or obscene language criminal if done in public place intentionally or recklessly to cause “public inconvenience, annoyance or alarm” violated free speech guarantee of this section. State v. Spencer, 289 Or 225, 611 P2d 1147 (1980)

 

      State cannot prohibit speech inviting or requesting person to engage in conduct that is lawful. State v. Tusek, 52 Or App 997, 630 P2d 892 (1981)

 

      This section, together with section 10, Article I, prohibits award of punitive damages for emotional distress inflicted solely through expression or communication. Hall v. The May Dept. Stores Co., 292 Or 131, 637 P2d 126 (1981)

 

      That person can attempt to place another in fear of imminent serious injury through words is only incidental, so ORS 163.190 does not directly implicate First Amendment rights or rights under this section. State v. Anderson, 56 Or App 12, 641 P2d 40 (1982)

 

      Defendants who were disseminating literature to motorists on public portion of private road were subject to prosecution under this section. State v. Horn, 57 Or App 124, 643 P2d 1388 (1982)

 

      The prohibition of ORS 163.275 (coercion) reaches areas of free speech, rendering statute unconstitutionally overbroad. State v. Robertson, 293 Or 402, 649 P2d 569 (1982)

 

      Laws focusing on speech content are distinguishable from laws prohibiting use of speech to bring about forbidden result. State v. Robertson, 293 Or 402, 649 P2d 569 (1982); State v. Plowman, 314 Or 157, 838 P2d 558 (1992); City of Eugene v. Miller, 318 Or 480, 871 P2d 454 (1994); State v. Maynard, 168 Or App 118, 5 P3d 1142 (2000), Sup Ct review denied; Karuk Tribe of California v. Tri-Met, 241 Or App 537, 251 P3d 773 (2011), aff’d 355 Or 239, 323 P3d 947 (2014)

 

      Laws focusing expressly on use of protected expression for purpose of achieving forbidden result are subject to analysis for overbreadth. State v. Robertson, 293 Or 402, 649 P2d 569 (1982); State v. Plowman, 314 Or 157, 838 P2d 558 (1992); City of Eugene v. Miller, 318 Or 480, 871 P2d 454 (1994); State v. Maynard, 168 Or App 118, 5 P3d 1142 (2000), Sup Ct review denied; Karuk Tribe of California v. Tri-Met, 241 Or App 537, 251 P3d 773 (2011), aff’d 355 Or 239, 323 P3d 947 (2014)

 

      Laws focusing on proscribing forbidden effect through means including protected expression, rather than focusing on protected expression itself, are not subject to challenge for overbreadth but are subject to analysis for vagueness and unconstitutional application to specific instances of expression. State v. Robertson, 293 Or 402, 649 P2d 569 (1982); State v. Plowman, 314 Or 157, 838 P2d 558 (1992); City of Eugene v. Miller, 318 Or 480, 871 P2d 454 (1994); State v. Maynard, 168 Or App 118, 5 P3d 1142 (2000), Sup Ct review denied; Karuk Tribe of California v. Tri-Met, 241 Or App 537, 251 P3d 773 (2011), aff’d 355 Or 239, 323 P3d 947 (2014)

 

      Question of whether cause of action for damages exists for actions brought directly under this section or section 20, Article I, is unsettled and, therefore, court declined to exercise pendent jurisdiction. Anderson v. Central Point School Dist. No. 6, 554 F Supp 600 (1982)

 

      In libel action by private plaintiffs against media defendants, First Amendment to United States Constitution requires proof that defendants acted at least negligently and nothing in this section or section 10, Article I, requires proof of greater culpability. Bank of Oregon v. Independent News, 65 Or App 29, 670 P2d 616 (1983), aff’d 298 Or 434, 693 P2d 35 (1985)

 

      Defendant city’s occult arts ordinance focuses on content of speech and writing and fact that ordinance prohibits communication only if it is for “hire or profit” does not keep it from being in violation of this section. Mars v. City of Roseburg, 65 Or App 102, 670 P2d 201 (1983)

 

      DR 7-107 (B) survives constitutional challenge if it is narrowly interpreted so as to limit its coverage to prosecutor’s “abuse” of right to speak, write or print freely on any subject whatever. In re Lasswell, 296 Or 121, 673 P2d 855 (1983)

 

      ORS 166.025 (1)(a), prohibiting “violent, tumultuous or threatening behavior,” does not violate this section. State v. Cantwell, 66 Or App 848, 676 P2d 353 (1984), Sup Ct review denied

 

      ORS 166.065 (1)(b), prohibiting harassment by publicly insulting another by abusive or obscene words or gestures in a manner likely to provoke violent or disorderly response, violates this section. State v. Harrington, 67 Or App 608, 680 P2d 666 (1984), Sup Ct review denied

 

      Right to free speech is not subject to exception for fighting words. State v. Harrington, 67 Or App 608, 680 P2d 666 (1984), Sup Ct review denied; City of Eugene v. Lee, 177 Or App 492, 34 P3d 690 (2001)

 

      ORS 166.065 (1)(a), proscribing “offensive physical contact,” does not violate this section. State v. Beebe, 67 Or App 738, 680 P2d 11 (1984), Sup Ct review denied

 

      Menacing statute, ORS 163.190, prohibits attempt to achieve effect of fear, not communication itself, and, therefore, does not violate this section. State v. Garcias, 296 Or 688, 679 P2d 1354 (1984)

 

      County ordinance regulating billboards violates this section by attempting to regulate speech on basis on content. Ackerley Communications, Inc. v. Multnomah County, 72 Or App 617, 696 P2d 1140 (1985)

 

      So long as speech prohibited is comparable to speech that was prohibited in 1859, legislature may punish additional effects of that speech without violating this section; ORS 165.042 and 165.102 are constitutional. State v. Romig, 73 Or App 780, 700 P2d 293 (1985), Sup Ct review denied

 

      In action for “breach of confidence,” legal duty not to speak, unless voluntarily assumed in entering relationship, will not be imposed by courts or jurors in name of custom or reasonable expectations. Humphers v. First Interstate Bank, 298 Or 706, 696 P2d 527 (1985)

 

      ORS 166.065 (1)(d), concerning telephonic or written threats, where focus is on effect, not speech itself, and where effect must be objectively as well as subjectively genuine, does not violate this section. State v. Moyle, 299 Or 691, 705 P2d 740 (1985)

 

      It was within trial court discretion to determine that television broadcasting station would not be allowed copy of videotape of civil defendant’s testimony after trial in which videotape was played to jury in open court. State ex rel KOIN-TV v. Olsen, 300 Or 392, 711 P2d 966 (1985)

 

      ORS 167.007 falls within historical exception to this section. State v. Grimes, 85 Or App 159, 735 P2d 1277 (1987), Sup Ct review denied

 

      [Former] ORS 167.087 violates this section because obscene expression does not fall within any historical exception from this section’s guarantee of freedom of expression. State v. Henry, 302 Or 510, 732 P2d 9 (1987)

 

      City ordinance regulating use of sound equipment was constitutional, where ordinance regulated effect of speech rather than prohibiting or regulating speech or its content and where defendant did not contend that ordinance was overbroad. City of Portland v. Ayers, 93 Or App 731, 764 P2d 556 (1988), Sup Ct review denied

 

      Party’s raising of one issue under this section does not implicitly raise all other potential issues under this section. City of Portland v. Ayers, 93 Or App 731, 764 P2d 556 (1988), Sup Ct review denied

 

      Bureau of police general order, under which police officer was disciplined for unauthorized attempt to negotiate resolution to public controversy between police chief and community spokesman, did not violate this section. Koch v. City of Portland, 94 Or App 484, 766 P2d 405 (1988), Sup Ct review denied

 

      “Green River” ordinance prohibiting door-to-door commercial solicitation was unconstitutionally overbroad. City of Hillsboro v. Purcell, 306 Or 547, 761 P2d 510 (1988)

 

      Wage and Hour Commission regulations which prohibit or restrict door-to-door solicitation by minors and which are not directed to content of speech do not violate this section. Northwest Advancement v. Bureau of Labor, 96 Or App 133, 772 P2d 943 (1989), Sup Ct review denied

 

      [Former] ORS 181.400 (2) prohibition against political activity by members of state police violated this section. Oregon State Police Assn. v. State of Oregon, 308 Or 531, 783 P2d 7 (1989)

 

      Persons whose rights are violated under this section by municipality or its employees may not bring action for damages against municipality or its employees directly under Oregon Constitution but will be limited to existing common law, equitable and statutory remedies. Hunter v. City of Eugene, 309 Or 298, 787 P2d 881 (1990)

 

      Provision prohibiting judges and judicial candidates from directly soliciting campaign contributions does not violate this section. In re Fadeley, 310 Or 548, 802 P2d 31 (1990)

 

      Prohibition against possessing firearm does not constitute “punishment.” State v. Lamb, 110 Or App 146, 822 P2d 143 (1991); State v. Adams, 116 Or App 156, 840 P2d 745 (1992)

 

      Crime of telephonic harassment under ORS 166.090 does not violate this section. State v. Hibbard, 110 Or App 335, 823 P2d 989 (1991), Sup Ct review denied

 

      Where signs in private parking lot of office building prohibited unauthorized parking, there were no restaurants or common areas in building that invited public to congregate on premises, other tenants were commercial or professional businesses offering specific services and where women’s health center had previously obtained injunction against protest activities, defendants charged with criminal trespass were not engaged in protected speech activities when demonstrating against center in parking lot because parking lot was not functional equivalent of public place. State v. Purdue, 111 Or App 586, 826 P2d 1037 (1992)

 

      [Former] ORS 759.290 prohibition on use of automatic dialing and announcing device for solicitation of sales is unconstitutional because statute regulates commercial speech differently from other subjects of speech. Moser v. Frohnmayer, 112 Or App 226, 829 P2d 84 (1992), aff’d 315 Or 372, 845 P2d 1284 (1993)

 

      Because ordinance restricting horn honking except as warning regulates more conduct than city intended to prevent, ordinance is unconstitutionally overbroad. City of Eugene v. Powlowski, 116 Or App 186, 840 P2d 1322 (1992)

 

      [Former] ORS 236.380, permitting state officials to take personnel action against employees on basis of sexual orientation, is impermissible restraint on free expression in violation of this section and cannot limit authority to promulgate rules prohibiting discrimination based on sexual orientation. Merrick v. Board of Higher Education, 116 Or App 258, 841 P2d 646 (1992)

 

      Because ORS 166.165 does not proscribe opinions or communications, it does not violate this section. State v. Plowman, 314 Or 157, 838 P2d 558 (1992)

 

      As used in ORS 163.665, “lewd” is not unconstitutionally vague. State v. Meyer, 120 Or App 319, 852 P2d 879 (1993)

 

      Where tort permits liability for content of speech, punitive damages are not recoverable. Huffman and Wright Logging Co. v. Wade, 317 Or 445, 857 P2d 101 (1993). But see Smallwood v. Fisk, 146 Or App 695, 934 P2d 557 (1997)

 

      Where tort permits liability for speech-caused harm, defendant is entitled to instruction limiting predicate for punitive damages to conduct that was not subject to free-speech protection. Huffman and Wright Logging Co. v. Wade, 317 Or 445, 857 P2d 101 (1993)

 

      Where tort permits recovery for non-speech-caused harm and defendant alleges conduct was protected free speech, defendant may be entitled to instruction limiting predicate for punitive damages. Huffman and Wright Logging Co. v. Wade, 317 Or 445, 857 P2d 101 (1993)

 

      Judicial canons restricting commentary on matters pending and impending before court are reasonable regulatory restrictions on profession. In re Schenck, 318 Or 402, 870 P2d 185 (1994)

 

      Regulation of expressive material is not permissible merely because regulation applies to all expressive material without regard to content. City of Eugene v. Miller, 318 Or 480, 871 P2d 454 (1994)

 

      Where some general commercial activity is allowed, vendors of expressive material may not be treated more restrictively than other vendors, absent showing that sale of other goods fills special need or that sale of expressive material causes special problems. City of Eugene v. Miller, 318 Or 480, 871 P2d 454 (1994)

 

      Statutes that prohibit commercial use of information obtained from public record are invalid restriction on commercial free speech. Zackheim v. Forbes, 134 Or App 548, 895 P2d 793 (1995), Sup Ct review denied

 

      Overbreadth analysis applies to laws expressly identifying communicative conduct as means of forbidden effect or where forbidden effect can only be accomplished through communicative conduct. State v. Chakerian, 135 Or App 368, 900 P2d 511 (1995), aff’d 325 Or 370, 938 P2d 756 (1997)

 

      Legislature’s power under section 8, Article II, to regulate polling place conduct cannot be used to limit passive display of political speech by elector not tending to impede others from exercising suffrage. Picray v. Secretary of State, 140 Or App 592, 916 P2d 324 (1996), aff’d 325 Or 279, 936 P2d 974 (1997)

 

      Statute prohibiting communicative material depicting actual child sexual abuse is reasonable regulation of by-product of crime, not unconstitutional restriction on communicative substance of material. State v. Stoneman, 323 Or 536, 920 P2d 535 (1996)

 

      Portion of ORS 646.469 allowing court to prohibit person involved in litigation from disclosing trade secret without permission was unconstitutional content-based restraint on free speech. State ex rel Sports Management News v. Nachtigal, 324 Or 80, 921 P2d 1304 (1996)

 

      Punitive damages are not available where speech is of protected type, but are available where speech is of unprotected type. Planned Parenthood v. American Coalition of Life Activists, 945 F. Supp. 1355 (D. Or. 1996)

 

      Where tort permits liability for content of speech, punitive damages are not recoverable unless historic exception applies to type of speech being punished. Smallwood v. Fisk, 146 Or App 695, 934 P2d 557 (1997)

 

      Statute prohibiting possession of child pornography was constitutional because it was directed to eliminating incentive for actions harmful to children and not to communicative substance of material. State v. Ready, 148 Or App 149, 939 P2d 117 (1997), Sup Ct review denied; State v. Fleming/Heckathorne, 159 Or App 565, 979 P2d 771 (1999), Sup Ct review denied

 

      Because exercise of professional legal judgment can have noncommunicative aspects, statute prohibiting unauthorized practice of law does not violate constitutional right to free speech. Oregon State Bar v. Smith, 149 Or App 171, 942 P2d 793 (1997), Sup Ct review denied

 

      Many forms of campaign contributions are protected free speech by contributor. VanNatta v. Keisling, 324 Or 514, 931 P2d 770 (1997)

 

      Because distinction between making speech and profession of making speech was minimal, imposition of fee on professional political lobbyists was impermissible content-based regulation of speech. Fidanque v. Oregon Govt. Standards and Practices Commission, 328 Or 1, 969 P2d 376 (1998)

 

      Mental element “knowingly,” when used in conjunction with requirements of actual alarm by addressee and subjective and objective reasonableness of alarm, is sufficiently specific to prevent overbroad application of stalking statute (ORS 163.732) to protected speech. State v. Rangel, 328 Or 294, 977 P2d 379 (1999)

 

      Statute that is overly broad in restricting free expression cannot be saved by use of narrowing construction to remedy defect. State v. Maynard, 168 Or App 118, 5 P3d 1142 (2000), Sup Ct review denied

 

      Customized vehicle registration plates are communication by state and therefore subject to state regulation of content. Higgins v. DMV, 170 Or App 542, 13 P3d 531 (2000), aff’d 335 Or 481, 72 P3d 628 (2003)

 

      Express or implied threats that are unconditional and unequivocal, conveying sense of immediate or imminent action and gravity of purpose, are outside realm of protected speech and may form basis for recovery of punitive damages. Simpson v. Burrows, 90 F. Supp. 2d 1108 (D. Or. 2000)

 

      Ordinance establishing criteria for conditional use permit did not violate adult video store’s right to free expression because speech-related businesses are protected only from zoning used to regulate content of speech and not from generally applicable zoning regulations. Oregon Entertainment Corp. v. City of Beaverton, 172 Or App 361, 19 P3d 918 (2001), Sup Ct review denied

 

      Statute prohibiting duplication and distribution of visual recordings of sexual activity involving children (ORS 163.684) is directed at preventing harm to children, not at controlling content of speech. State v. Dimock, 174 Or App 500, 27 P3d 1048 (2001), Sup Ct review denied; State v. Betnar, 214 Or App 416, 166 P3d 554 (2007)

 

      Statute allowing disorderly conduct arrest for failure to disperse (ORS 166.025) is unconstitutionally overbroad in punishing persons who continue to congregate after abandoning damaging or harmful activity that made order to disperse lawful. State v. Ausmus, 336 Or 493, 85 P3d 864 (2004)

 

      Mere fact that restraint on speech or expression was well established when this section was adopted is insufficient to demonstrate that restraint was intended to survive as exception to free speech right. State v. Ciancanelli, 339 Or 282, 121 P3d 613 (2005)

 

      Historical exception restraining free speech may be valid if its true focus is underlying nonspeech harm, but is probably invalid if focus is protecting hearer from content of speech. State v. Ciancanelli, 339 Or 282, 121 P3d 613 (2005)

 

      State may burden protected speech by imposing content-neutral restrictions on time, manner and place of speech. Outdoor Media Dimensions v. Department of Transportation, 340 Or 275, 132 P3d 5 (2006)

 

      Notwithstanding that any message might be related to on-premises or off-premises activity, permit system distinguishing between highway signs relating to on-premises activities and highway signs relating to off-premises activities is content-based regulation of speech rather than time, manner and place regulation. Outdoor Media Dimensions v. Department of Transportation, 340 Or 275, 132 P3d 5 (2006)

 

      Facial challenge to statute for overbreadth is available only if statute more or less expressly identifies protected speech as element of offense or terms of statute otherwise proscribe protected speech. State v. Illig-Renn, 341 Or 228, 142 P3d 62 (2006)

 

      Statute prohibiting harassing or annoying person by use of language intended or likely to provoke violent response was facially overbroad so as to violate this section. State v. Johnson, 345 Or 190, 191 P3d 665 (2008)

 

ATTY. GEN. OPINIONS: Constitutionality of prohibitions of advertising, (1976) Vol 37, p. 1375; government may adopt speech-neutral zoning laws that would separate in advance residential, educational and religious land uses from other land uses that would include establishments offering nude dancing, (1989) Vol 46, p 294; government may anticipate secondary effects that specific establishments may pose for specific sites, (1989) Vol 46, p 294; government precluded from directing regulatory laws generally at establishments offering nude dancing in order to control anticipated secondary effect, (1989) Vol 46, p 294; OLCC regulation of alcohol advertising, (1998) Vol 49, p 27; statute prohibiting giving or receiving of contributions to legislator’s political campaign during legislative session as violation of free speech right, (2001) Vol 49, p 267; statute prohibiting electioneering at polling places (ORS 260.695) directed at content of speech, (2016) No. 8292

 

LAW REVIEW CITATIONS: 53 OLR 382-387 (1974); 17 WLR 757 (1981); 20 WLR 344, 354, 359 (1984); 65 OLR 35, 56 (1986); 23 WLR 333, 350 (1987); 67 OLR 469, 508 (1988); 25 WLR 219 (1989); 69 OLR 313 (1990); 27 WLR 12, 381 (1991); 70 OLR 707, 855, 907 (1991); 29 WLR 129 (1993); 72 OLR 157, 729, 1019 (1993); 30 WLR 195, 723 (1994); 25 EL 495 (1995); 31 WLR 1, 685 (1995); 75 OLR 1253 (1996); 34 WLR 81, 101 (1998); 78 OLR 365 (1999); 35 WLR 629 (1999); 79 OLR 721, 793 (2000); 38 WLR 657 (2002); 39 WLR 1471 (2003); 82 OLR 979 (2003); 43 WLR 251 (2007); 44 WLR 399 (2007)

 

Art. I, Section 9

 

In general

 

Search warrants

      In general

      Necessity for warrant

      Validity of warrants

      Requirements for issuance

      Execution and return of warrants

 

Warrantless search or seizure

      Circumstances justifying search or seizure

      Unreasonable search or seizure

      Probable cause

      Plain view

      Search incident to arrest

      Offenses in officer’s presence

      Automobile search or seizure

      Investigatory stop

      Waiver or consent

      Administrative/inventory searches

      Emergency aid doctrine

      Exigent circumstances

 

Judicial procedures for wrongful search or seizure

 

Judicial review

 

NOTES OF DECISIONS

 

In general

 

      Property concepts do not determine scope of protections of Fourth Amendment to United States Constitution. State v. Stanton, 7 Or App 286, 490 P2d 1274 (1971); State v. Taggart, 7 Or App 479, 491 P2d 1187 (1971)

 

      Tenant of leased residential premises, whose landlord has acquiesced in late payment of rent, and who does not know or have reason to know that landlord has decided to terminate his tenancy, continues to have reasonable expectation of privacy. State v. Taggart, 7 Or App 479, 491 P2d 1187 (1971)

 

      This section does not prohibit admission of evidence seized pursuant to private individual’s independent search. State v. Padilla, 9 Or App 162, 496 P2d 256 (1972)

 

      Search of luggage by airline agent was not police search notwithstanding presence of uniformed police officer as witness to search. State v. Blackshear, 14 Or App 247, 511 P2d 1272 (1973), Sup Ct review denied

 

      In determining whether evidence recovered due to observations made by police officer while on private property is admissible, it was held that if property did not afford security of area in which society would recognize an expectation of privacy to be reasonably held, the evidence was not illegally obtained and was admissible. State v. Corbett, 15 Or App 470, 516 P2d 487 (1973), Sup Ct review denied; State v. Gorham, 121 Or App 347, 854 P2d 971 (1993), as modified by 123 Or App 582, 859 P2d 1201 (1993), Sup Ct review denied

 

      Presence on public streets at late hour does not of itself constitute cause of detention. State v. Evans, 16 Or App 189, 517 P2d 1225 (1974), Sup Ct review denied

 

      There was no search where: (1) officers came to apartment of defendant who was prime suspect in illegal sale of drugs to police contact; and (2) evidence obtained from defendant’s apartment and incriminating statements made by defendant were result of police interrogation after Miranda warnings had been given. State v. Bopp, 16 Or App 604, 519 P2d 1277 (1974)

 

      Defendant’s rights under First, Fourth and Fifth Amendments to United States Constitution are not violated by reading his outgoing mail while he is in jail awaiting trial or by making copies of letters and turning those copies over to state for use as evidence against defendant. State v. McCoy, 270 Or 340, 527 P2d 725 (1974)

 

      While state could interpret this provision as being more restrictive than Fourth Amendment to United States Constitution, it could not interpret Fourth Amendment more restrictively than it was interpreted by United States Supreme Court. Oregon v. Hass, 420 US 714, 95 S Ct 1215, 43 L Ed 2d 570 (1975)

 

      Incriminating evidence obtained during unauthorized search of defendant’s premises by private party was not subject to suppression where undercover officer observing search did not initiate search or participate in it. State v. Boutin, 26 Or App 485, 552 P2d 1349 (1976), Sup Ct review denied

 

      Demand of Department of Revenue to produce business records of taxpayer in order to make appraisal of property for property tax purposes was not too indefinite and broad so as to constitute unreasonable search and seizure. In re Eola Concrete Tile and Products Co., 8 OTR 128 (1979), aff’d 288 Or 241, 603 P2d 1181 (1979)

 

      Detention of juvenile pending adjudication of merits of case constitutes seizure which requires showing of probable cause under United States and Oregon Constitutions; prompt judicial determination of probable cause is prerequisite to extended detention of juvenile pending adjudication, and determination that there was “reason to believe” child committed alleged acts was insufficient to satisfy probable cause requirement. Roberts v. Mills, 290 Or 441, 622 P2d 1094 (1981)

 

      Nothing in language of this section or Fourth Amendment to United States Constitution or in case law indicates that question whether certain conduct constitutes search is analyzed differently under Oregon and United States Constitutions. State v. Robinson, 64 Or App 770, 669 P2d 1175 (1983)

 

      Inspection of brakes after impoundment of car involved in traffic accident was not unreasonable search. State v. Robinson, 64 Or App 770, 669 P2d 1175 (1983)

 

      Warrantless arrest, not in defendant’s home, based on probable cause and authorized by ORS 133.310, does not violate this section. State v. Mace, 67 Or App 753, 681 P2d 140 (1984), Sup Ct review denied

 

      There are two major exceptions to warrant requirement of this section: searches incident to arrest and searches supported by probable cause and “practical necessity.” State v. Flores, 68 Or App 617, 685 P2d 999 (1984), Sup Ct review denied

 

      Where marijuana plants were located within same enclosure as house, in area clearly defined and separated from surrounding woods, and were in close proximity to house, they were within curtilage and therefore protected from unreasonable search or seizure. State v. Russo, 68 Or App 760, 683 P2d 163 (1984)

 

      Opening of closed cigarette box found within closed pack during search for owner identification in noncriminal, noninvestigatory, noninventory context was unreasonable. State v. Rounds, 73 Or App 148, 698 P2d 71 (1985), Sup Ct review denied

 

      Opening vehicle door to inspect Vehicle Identification Number was search within meaning of this section and was not justified under circumstances. State v. Turechek, 74 Or App 228, 702 P2d 1131 (1985)

 

      Field sobriety tests do not constitute unreasonable search and seizure. State v. Niles, 74 Or App 383, 703 P2d 1030 (1985); State v. Lawrence, 117 Or App 99, 843 P2d 488 (1992), aff’d 320 Or 107, 880 P2d 431 (1994)

 

      Where department store security agent watched, through slats in fitting room door, defendant place pair of pants in diaper bag and then observed defendant leave store without paying for pants, agent did not violate defendant’s right against unreasonable searches by observing her in privacy of fitting room because agent was not acting pursuant to statutory authority when observations were made. State v. Jensen, 83 Or App 231, 730 P2d 1282 (1986), Sup Ct review denied

 

      Lawful seizure of transparent container is lawful seizure of its contents. State v. Owens, 302 Or 196, 729 P2d 524 (1986)

 

      When there is probable cause to believe that lawfully seized transparent container contained controlled substance, opening container, removing small quantity of its contents and subjecting it to chemical analysis for sole purpose of confirming that it was controlled substance is not “search” or “seizure” under Oregon Constitution. State v. Owens, 302 Or 196, 729 P2d 524 (1986)

 

      Where officer discovered, during lawful search of defendant incident to arrest for DUII, transparent vial that officer had probable cause to believe contained controlled substance, seizure of vial was valid and opening it and testing contents to determine if it was controlled substance was not search and no warrant was needed. State v. Westlund, 302 Or 225, 729 P2d 541 (1986)

 

      That defendant was growing marijuana on property adjacent to his own but had no relationship to that property was insufficient to create protectable interest in that property. State v. Dalegowski, 84 Or App 372, 734 P2d 357 (1987), Sup Ct review denied

 

      Under this section, defendant charged with crime in which possession is material element of offense may challenge validity of search and seizure of that item, regardless of whether defendant claims any possessory interest in item. State v. Simons, 86 Or App 34, 738 P2d 590 (1987), Sup Ct review denied

 

      Where suspect was detained by private security personnel for hour before security personnel called police, unreasonable detention did not violate suspect’s constitutional right because state was not responsible for detention; therefore, evidence should not have been suppressed and case should not have been dismissed. State v. Adams, 86 Or App 139, 738 P2d 988 (1987), Sup Ct review denied

 

      Where officer 5 feet 10 inches tall, acting on anonymous tip, stood on rock in defendant’s neighbor’s yard, looked over fence and saw marijuana plants, defendant’s privacy interest was not violated; defendant did not have privacy interest which applied only against short people. State v. Corra, 88 Or App 339, 745 P2d 786 (1987), Sup Ct review denied

 

      Plaintiff in declaratory judgment action was unlawfully stopped and detained when neither state nor county could demonstrate statute or ordinance authorizing sobriety road blocks. Nelson v. Lane County, 304 Or 97, 743 P2d 692 (1987)

 

      Though defendant was not sender, addressee or intended ultimate recipient of package containing cocaine and delivered via Federal Express, but merely picked up package from recipient’s home for someone else, defendant lacked any privacy or possessory interest in package at time when police intercepted Federal Express truck and subsequently exposed package to trained narcotics detection dog and defendant’s interests were not violated by police conduct involving stop of truck and exposure of package to police dog. State v. Kosta, 304 Or 549, 748 P2d 72 (1987)

 

      Defendant, in fleeing scene of fight and leaving backpack behind in public place, abandoned pack in constitutional sense that he retained no right of privacy in it and seized contents of pack were admissible evidence. State v. Belcher, 89 Or App 401, 749 P2d 591 (1988), aff’d 306 Or 343, 759 P2d 1096 (1988)

 

      Where police officer lacked reasonable suspicion for expanding scope of traffic stop, officer leaning head into interior of vehicle while conducting stop was unreasonable search. State v. Hicks, 89 Or App 540, 749 P2d 1221 (1988); State v. Hendricks, 151 Or App 271, 948 P2d 740 (1997)

 

      Officer’s entry on defendant’s land where he saw evidence of marijuana growing operation violated this section, even though entry was in company of power company’s meter reader. State v. Donahue, 93 Or App 341, 762 P2d 1022 (1988), Sup Ct review denied

 

      Assertion of constitutionally protected right against warrantless searches cannot be basis for warrantless search. State v. Lavender, 93 Or App 361, 762 P2d 1027 (1988)

 

      Defendant’s leaving bag in friend’s car did not amount to abandonment. State v. Lynch, 94 Or App 168, 764 P2d 957 (1988)

 

      Use of concealed camera to record defendant’s conduct while using public restroom stall constituted “search.” State v. Casconi, 94 Or App 457, 766 P2d 397 (1988)

 

      Surreptitious surveillance by concealed officers or recording by concealed cameras of persons using public restroom significantly impairs people’s freedom from scrutiny and violated this section. State v. Owczarzak, 94 Or App 500, 766 P2d 399 (1988)

 

      Right of privacy is based upon privacy to which person has right, not upon reasonable expectation of privacy. State v. Campbell, 306 Or 157, 759 P2d 1040 (1988)

 

      Use of technological enhancement to significantly impair freedom from scrutiny constitutes search. State v. Campbell, 306 Or 157, 759 P2d 1040 (1988)

 

      Where marijuana-detecting dog unexpectedly “alerted” at defendant’s locker in public storage facility during training exercise conducted with permission of facility owner, discovery of marijuana smell from defendant’s locker was not result of purposive intrusion into defendant’s privacy, and therefore there was no search. State v. Slowikowski, 307 Or 19, 761 P2d 1315 (1988)

 

      This section applies even to land outside curtilage, and individual’s privacy interest in land outside curtilage will not go unprotected simply because of its location. State v. Dixson/Digby, 307 Or 195, 766 P2d 1015 (1988)

 

      Whether land outside curtilage is subject to warrantless entry depends on whether governmental intrusion onto land would significantly impair individual’s interest in freedom from scrutiny. State v. Dixson/Digby, 307 Or 195, 766 P2d 1015 (1988)

 

      Person wishing to preserve constitutionally protected privacy interest in land outside curtilage must manifest intention to exclude public by erecting barriers to entry or posting signs. State v. Dixson/Digby, 307 Or 195, 766 P2d 1015 (1988)

 

      Even if search coincides with immediate medical attention, evidence of criminal activity discovered is not admissible in criminal trial. State v. Watson, 95 Or App 134, 769 P2d 201 (1989)

 

      Where officers saw marijuana on defendant’s land while flying over it on unrelated mission, discovery was inadvertent, not result of purposeful activity, so officers did not violate defendant’s privacy rights in his land; and where officers intruded only onto land that defendant had left “unimproved and unbounded” with no manifestation of intention to exclude public, officers did not violate this section and trial court correctly denied defendant’s motion to suppress. State v. Nevler, 95 Or App 694, 770 P2d 956 (1989)

 

      Where “No Trespassing” signs were posted only on front of defendant’s property, land was unbounded and remaining perimeters were unmarked, defendant did not sufficiently manifest intent to exclude public and thus failed to preserve constitutionally protected privacy interest. State v. Walch, 99 Or App 180, 781 P2d 406 (1989)

 

      Where stipulated facts on which defendant was convicted did not mention physical evidence derived from that search, validity of search was irrelevant. State v. Massengill, 100 Or App 369, 786 P2d 731 (1990)

 

      Police officer’s use of flashlight to observe defendant in course of legitimate stop for traffic infraction was not search. State v. Evans, 101 Or App 340, 790 P2d 1177 (1990)

 

      Act of opening package containing cocaine was not search because it was not purposeful intrusion into defendant’s privacy. State v. Goin, 101 Or App 503, 791 P2d 149 (1990)

 

      Altitude of airplane is not determinative of whether fly-over observation is invalid search. State v. Venet, 103 Or App 363, 797 P2d 1055 (1990), Sup Ct review denied

 

      Where defendant borrowed car without authority so that car was reported stolen and police removed defendant from stolen car, defendant lost personal privacy right to contents of car. State v. Garoutte, 104 Or App 418, 801 P2d 881 (1990)

 

      Police officer’s unaided observation, purposive or not, from lawful vantage point by aerial reconnaissance is not search. State v. Ainsworth, 310 Or 613, 801 P2d 749 (1990); State v. Gohring, 311 Or 33, 803 P2d 1189 (1991)

 

      Where statute relating to cancellation of driving privileges contains no provision authorizing arrest of suspect, rights under this section do not attach. Merrifield v. MVD, 106 Or App 359, 807 P2d 329 (1991)

 

      Law enforcement officer who was positioned about one-half mile from motor vehicle accident and who stopped motorist on public highway for purpose of advising motorist of detour around accident did not “seize” motorist within meaning of this section. State v. Holmes, 311 Or 400, 813 P2d 28 (1991)

 

      Seizure of person occurs under this section: (1) if law enforcement officer intentionally and significantly restricts, interferes with or otherwise deprives individual of that individual’s liberty or freedom of movement; or (2) whenever individual believes that (1), above, has occurred and such belief is objectively reasonable in circumstances. State v. Holmes, 311 Or 400, 813 P2d 28 (1991). But see State v. Ashbaugh, 349 Or 297, 244 P3d 360 (2010)

 

      Where officer had stationed himself on road in attempt to find witnesses to recent robbery and shooting or to apprehend perpetrator, officer’s directive to defendant to stop car for exchange of information was not seizure for purposes of this section since directive was not significant restriction upon or interference with individual’s liberty or freedom of movement and reasonable individual would not believe it was. State v. Gerrish, 311 Or 506, 815 P2d 1244 (1991)

 

      Police did not violate this section in visiting defendant’s residence undercover or in crossing neighbor’s property to investigate defendant’s unfenced and unmarked property. State v. Hitesman/Page, 113 Or App 356, 833 P2d 306 (1992), Sup Ct review denied

 

      Where there was no evidence presented regarding scope of booking inventory at jail, there was no evidence to conclude that bindle of methamphetamine seized from defendant’s wallet would have been inevitably discovered and seized at jail. State v. Redmond, 114 Or App 197, 834 P2d 516 (1992)

 

      Protection of this section includes right in criminal prosecution in Oregon to be free from use of evidence obtained in violation of defendant’s rights and action by out-of-state law officers same as if action were by law officers in Oregon. State v. Davis, 313 Or 246, 834 P2d 1008 (1992)

 

      Having investigative purpose does not make police entry onto property improper where entry is type impliedly permitted to casual visitors. State v. McIntyre/Pereira, 123 Or App 436, 860 P2d 299 (1993), Sup Ct review denied; State v. Glines, 134 Or App 21, 894 P2d 516 (1995), Sup Ct review denied

 

      Expectation of privacy requires greater manifestation of intent to exclude where applied to casual visitors to front door than where applied to persons attempting to use property for own purposes. State v. Gabbard, 129 Or App 122, 877 P2d 1217 (1994), Sup Ct review denied

 

      No privacy right was implicated where defendant uttered statements while seated in back of patrol car after arrest. State v. Wischnofske, 129 Or App 231, 878 P2d 1130 (1994)

 

      Search occurs when officer creates situation exposing physical, psychological or other information about subject not otherwise observable by officer or members of public. State v. Nagel, 320 Or 24, 880 P2d 451 (1994); State v. Stowers, 136 Or App 448, 902 P2d 117 (1995)

 

      Evidence against defendant discovered during illegal search of third party was admissible where possession of property by third person did not result from defendant making use of privacy right of third person. State v. Mulholland, 132 Or App 399, 888 P2d 594 (1995), Sup Ct review denied; State v. Trevino/Ahumada, 133 Or App 24, 889 P2d 1317 (1995), Sup Ct review denied

 

      Assertion of interest in property is affirmative act not accomplished by simple failing to disclaim interest in property. State v. Johnson, 137 Or App 91, 902 P2d 1223 (1995), Sup Ct review denied

 

      Defendant’s protected interest in place or effect can be established by other evidence notwithstanding defendant’s earlier oral disclaimer of interest. State v. Akers, 138 Or App 289, 907 P2d 1131 (1995), Sup Ct review denied

 

      Significant interference with possessory or ownership interest in property, whether by actual restraint or show of authority, is seizure of property. State v. Juarez-Godinez, 326 Or 1, 942 P2d 772 (1997)

 

      Whether seizure of property has occurred involves fact-specific inquiry to determine whether person claiming property interest believed, and reasonable person would believe, that property had been seized. State v. Juarez-Godinez, 326 Or 1, 942 P2d 772 (1997)

 

      Sniffing by narcotics dog is not search if occurring in public place. State v. Smith, 327 Or 366, 963 P2d 642 (1998)

 

      Unlawful securing of property while obtaining search warrant does not necessarily require suppression of later-obtained evidence. State v. Smith, 327 Or 366, 963 P2d 642 (1998)

 

      Where multi-unit dwelling is involved, whether residents have privacy interest in common area is determined on case-by-case consideration of whether entry by persons other than residents and guests would violate social and legal norms of behavior. State v. Larson, 159 Or App 34, 977 P2d 1175 (1999), Sup Ct review denied

 

      Sign prohibiting unauthorized entry onto property is evidence of intent to exclude persons not having express permission to enter. State ex rel Juvenile Dept. v. Reeves, 163 Or App 497, 988 P2d 433 (1999)

 

      Police action can constitute seizure notwithstanding that individual does not submit to police authority or use of physical force. State v. Puffenbarger, 166 Or App 426, 998 P2d 788 (2000)

 

      Public employee engaged in work activity did not have privacy interest in location of public vehicle on public land. State v. Meredith, 184 Or App 523, 56 P3d 943 (2002), aff’d 337 Or 299, 96 P3d 342 (2004)

 

      Lawyer’s client has no constitutionally protected privacy interest in listing of client’s name or home or business address in papers or effects of lawyer. State v. Makuch/Riesterer, 185 Or App 298, 59 P3d 536 (2002), aff’d 340 Or 658, 136 P3d 35 (2006)

 

      Person does not have privacy interest in record of person’s telephone usage where record was generated and maintained by telephone service provider for provider’s separate and legitimate business purposes. State v. Johnson, 340 Or 319, 131 P3d 173 (2006)

 

      Requiring convicted felon to supply blood or buccal sample does not violate federal or state constitutional privacy rights. State v. Sanders, 343 Or 35, 163 P3d 607 (2007)

 

      Patient does not have constitutionally protected privacy right in curtained treatment area of hospital emergency room. State v. Cromb, 220 Or App 315, 185 P3d 1120 (2008), Sup Ct review denied

 

      Basic requirements for proof of objective probable cause are equally applicable in context of warrantless and warranted searches. State v. Foster, 233 Or App 135, 225 P3d 830 (2010), aff’d 350 Or 161, 252 P3d 292 (2011)

 

      Seizure of person occurs under this section: (1) if law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives individual of that individual’s liberty or freedom of movement; or (2) if reasonable person under totality of circumstances would believe that (1) above has occurred. State v. Ashbaugh, 349 Or 297, 244 P3d 360 (2010)

 

      Defendant has no protected privacy interest in bank records that are held by bank, created by bank in bank’s regular course of business and are maintained by bank for bank’s own purposes. State v. Ghim, 267 Or App 435, 340 P3d 753 (2014), Sup Ct review allowed

 

      Where defendant’s housekeeper suspected defendant was sexually abusing child, called Department of Human Services to ask if lab could determine abuse from testing child’s underwear, department employee answered affirmatively but told housekeeper that employee could not instruct housekeeper to take underwear and housekeeper took underwear to authorities, housekeeper did not act on behalf of state or as agent of state because state’s conduct did not convey to housekeeper that housekeeper had state authority to act. State v. Sines, 359 Or 41, __ P3d __ (2016)

 

      Where seizure of defendant’s dog was based on probable cause that dog was suffering from malnourishment and was followed by drawing and testing of dog’s blood to medically diagnose and treat dog, seizure was lawful and defendant’s privacy interest was not violated; defendant had no protected privacy interest in dog’s blood that was invaded by medical procedures that were performed. State v. Newcomb, 359 Or 756, 375 P3d 434 (2016)

 

Search warrants

 

      In general

 

      Law enforcement officers must secure and use search warrants whenever reasonably practicable. State v. Allen, 12 Or App 633, 508 P2d 472 (1973)

 

      Two-hour detention of occupants of premises “secured” by police, based on information inadequate for search warrant, was unreasonable where police used time only to try to develop independent additional evidence to justify warrant, and acts and statements of occupants during detention could not be used to establish probable cause for search warrant. State v. Wise, 72 Or App 58, 695 P2d 68 (1985)

 

      Neither this section nor Fourth Amendment to United States Constitution limits warrants to investigations of crimes. State v. Weist, 302 Or 370, 730 P2d 26 (1986)

 

      Although warrant is referred to as “search” warrant, it is judicial process for its issuance that provides authority to seize things. State v. Peterson, 114 Or App 126, 834 P2d 488 (1992)

 

      Where warrant authorizes search but does not authorize seizure, lawfulness of seizure of items found during search may be analyzed with reference to plain view exception. State v. Carter, 200 Or App 262, 113 P3d 969 (2005), aff’d 342 Or 39, 147 P3d 1151 (2006)

 

      Necessity for warrant

 

      It was not necessary for fire chief to obtain warrant or express permission in order to make inspection under ORS 476.210. State v. Felger, 19 Or App 39, 526 P2d 611 (1974)

 

      Department of Revenue subpoena power is limited only to extent that department must seek records relevant to lawful investigation and issue subpoena no broader than needs of particular investigation. Dept. of Rev. v. D.R. Johnson Lbr. Co., 289 Or 679, 617 P2d 603 (1980); Dept. of Rev. v. Universal Foods Corp., 12 OTR 231 (1992), aff’d 318 Or 78, 862 P2d 1288 (1993)

 

      No warrant was necessary to open transparent ziplock bag lawfully seized from defendant at time of his arrest, and to test white powder that was visible to officer. State v. Yeomans, 83 Or App 512, 731 P2d 1072 (1987)

 

      Evidence that defendant was planning to move and that at one time, he had said he and his father listen to police broadcasts was insufficient to prove exigent circumstances when telephonic warrant could have been obtained. State v. Wynn, 102 Or App 1, 792 P2d 1234 (1990)

 

      Where officer has other valid grounds for opening closed container, development of probable cause to believe criminal evidence is inside container does not require officer to obtain warrant. State v. Nelson, 181 Or App 593, 47 P3d 521 (2002), Sup Ct review denied

 

      Where police search location authorized by warrant, their subjective intent or purpose for conducting search is not constitutionally significant. State v. Munro, 339 Or 545, 124 P3d 1221 (2005)

 

      Officer did not invade defendant’s protected privacy interest where officer lawfully entered common driveway of self-storage facility lot that was protected by access gate to which officer had been given access code by facility manager and obtained evidence that defendant was intoxicated driver. State v. Michel, 264 Or App 259, 331 P3d 1097 (2014)

 

      Where police officers used computer software to continually monitor peer-to-peer network for child pornography and obtained search warrant for defendant’s personal computer after determining defendant likely had viewed and stored child pornography files on that computer, defendant did not have privacy interest in files available to any other user of peer-to-peer network and officers did not conduct “search” for which warrant is required under this provision. State v. Combest, 271 Or App 38, 350 P3d 222 (2015), Sup Ct review denied; State v. Holland, 272 Or App 211, 355 P3d 194 (2015), Sup Ct review denied

 

      Validity of warrants

 

      Illegal seizure of evidence not used against defendant at trial is not grounds for invalidating entire search. State v. Redeman, 9 Or App 329, 496 P2d 230 (1972)

 

      Search warrant permitting seizure of marijuana from car trunk after arrest of defendant for suspected motor vehicle violation was invalid. State v. Gwinn, 12 Or App 444, 506 P2d 187 (1973), Sup Ct review denied

 

      Valid portions of warrant may be severed, and items seized pursuant to invalid portions of warrant must be suppressed. State v. Sagner, 12 Or App 459, 506 P2d 510 (1973), Sup Ct review denied; State v. Gilbert, 276 Or 801, 556 P2d 651 (1976)

 

      Lapse of as much as 24 days between observing of stolen articles by informant and subscribing to affidavit and issuing of warrant is too great to permit magistrate to find that probable cause existed that stolen items would be on premises on date of affidavit. State v. Hoffman, 15 Or App 524, 516 P2d 84 (1973), Sup Ct review denied

 

      Exception to rule that search warrant directed against multiple-occupancy structure must specify sub-unit to be searched is recognized where multi-unit character of premises is not externally apparent and is not known to officer applying for warrant. State v. Nearing/Baker, 16 Or App 30, 517 P2d 308 (1973)

 

      Police committing unauthorized act does not invalidate authorized search of premises described in warrant. State v. Blackburn/Barber, 266 Or 28, 511 P2d 381 (1973)

 

      If warrant is sufficiently ambiguous that it is impossible to identify with reasonable degree of certainty particular premises authorized to be searched, warrant may not be executed and any search pursuant to it is illegal. State v. Blackburn/Barber, 266 Or 28, 511 P2d 381 (1973)

 

      Affidavit of police officer was insufficient to support probable cause where it recited that: 1) officer saw defendant hand to another what appeared to be baggie of marijuana in exchange for money; 2) defendant was known to officer as trafficker in narcotics and dangerous drugs; and 3) officer had extensive prior experience in dealing with narcotics and dangerous drug violations. State v. McManus, 267 Or 238, 517 P2d 250 (1973)

 

      Validity of search warrant does not depend on identifying property owner. State v. Harvey, 53 Or App 478, 632 P2d 487 (1981), Sup Ct review denied

 

      Warrant for defendant’s arrest violated this section because it was unsupported by sworn statement upon which court could have based determination of probable cause. State v. Brown, 96 Or App 171, 772 P2d 429 (1989)

 

      Defendants had privacy interest in, and officer had no right to be in, north yard, which defendants shared with others in apartment complex and which was not walkway to any other apartment and was surrounded by fence, apartment buildings and brush, even though defendants did not control access to area and others could lawfully enter it. State v. Breshears/Oliver, 98 Or App 105, 779 P2d 158 (1989)

 

      Where affidavit on which search warrant was based stated that officer observed with his naked eye what appeared to be marijuana plants in curtilage of defendant’s residence, it was error for court to suppress evidence seized pursuant to warrant even though officer verified his observation with binoculars. State v. Glidewell, 99 Or App 578, 783 P2d 535 (1989)

 

      Description of car by license plate number and location was sufficient to ensure proper car was towed and searched. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

 

      Affidavit in support of warrant was sufficient, despite reliance on old information, where affidavit viewed as whole demonstrated probability of ongoing criminal activity, repeated at same location and using equipment of durable nature. State v. Gale/Rowden, 105 Or App 489, 805 P2d 158 (1991), Sup Ct review denied; State v. Wilson, 120 Or App 382, 852 P2d 910 (1993), Sup Ct review denied; State v. Chezem, 125 Or App 341, 865 P2d 1307 (1993)

 

      Trial court erred in failing to suppress drugs seized from defendant’s vehicle where: 1) description in search warrant was general in nature; 2) defendant was mere visitor on premises described in warrant; and 3) there was nothing to indicate that vehicles of persons visiting premises would contain evidence of manufacture or sale of drugs. State v. Leathers, 106 Or App 157, 806 P2d 718 (1991)

 

      Search warrant affidavit, stripped of inaccuracies and information obtained in purportedly unlawful searches, was insufficient to establish probable cause. State v. Morrison/Bartee, 107 Or App 343, 812 P2d 832 (1991), modified 108 Or App 766, 816 P2d 1217 (1991); State v. Gunderson, 109 Or App 621, 820 P2d 871 (1991), Sup Ct review denied

 

      Where, after police searched defendant’s former residence, defendant began to live in apartment where he was arrested, trial court did not err in concluding apartment was defendant’s residence. State v. Powell, 109 Or App 374, 819 P2d 756 (1991)

 

      Issuance of warrant was justified when trained and experienced officers smelled strong odor coming from defendant’s residence that officers associated with manufacture of methamphetamine. State v. Brown, 109 Or App 636, 820 P2d 878 (1991), Sup Ct review denied

 

      Affidavit based on evidence of drug manufacturing provided probable cause to search residence for drug distribution. State v. Wood, 114 Or App 601, 836 P2d 176 (1992), Sup Ct review denied

 

      Warrant directing executing officer to search “all vehicles determined to be associated with” occupants of premises did not describe defendant’s vehicle with sufficient particularity. State v. Ingram, 313 Or 139, 831 P2d 674 (1992)

 

      Where affidavits did not indicate that defendant resided at property, did not establish that defendant conducted any activities related to marijuana growing operation at property or did not link property with remote growing operation, there was not probable cause to believe search would lead to discovery of evidence of growing operation. State v. Stockton, 120 Or App 111, 852 P2d 227 (1993)

 

      Good faith mistake by police officers caused by similarity between defendant’s name and appearance and person identified on arrest warrant did not make arrest and subsequent search legal. State v. Johnson, 120 Or App 151, 851 P2d 1160 (1993), Sup Ct review denied

 

      Warrant authorizing search of all persons present was invalid where affidavit did not demonstrate probable cause to believe that all persons present would be engaged in criminal activity. State v. Reid, 319 Or 65, 872 P2d 416 (1994)

 

      Where warrant contained detailed physical description and location information that unmistakably identified property, warrant was sufficiently particular notwithstanding incorrect property address. State v. Edwards, 149 Or App 702, 945 P2d 553 (1997), Sup Ct review denied; State v. Bush, 174 Or App 280, 25 P3d 368 (2001), Sup Ct review denied

 

      Where written duplicate warrant prepared by police officer materially exceeded scope of oral authorization for telephonic warrant, search executed under duplicate warrant was invalid even though it was within scope of oral authorization. State v. Martin/Dills, 170 Or App 366, 12 P3d 548 (2000)

 

      Where illegally obtained evidence directs attention of police to defendant, but does not lead directly to evidence supporting warrant, connection between illegality and evidence supporting warrant is sufficiently attenuated so as to remove taint. State v. Mituniewicz, 186 Or App 95, 62 P3d 417 (2003), Sup Ct review denied

 

      Unanticipated existence of multiple residences on premises did not invalidate warrant authorizing search of single residence where information set out in warrant, coupled with reasonable effort upon entry of premises, allowed police to identify residence to be searched. State v. Trax, 335 Or 597, 75 P3d 440 (2003)

 

      Warrant may validly authorize only search or only seizure. State v. Carter, 200 Or App 262, 113 P3d 969 (2005), aff’d 342 Or 39, 147 P3d 1151 (2006)

 

      Where warrant specifically identified place to be searched, nonspecific passing reference in warrant to different type of place did not invalidate warrant. State v. McDowell, 211 Or App 341, 155 P3d 877 (2007)

 

      To determine whether passage of time precludes probable cause, appellate courts have considered: (1) length of time; (2) perishability of putative evidence; (3) mobility of putative evidence; (4) nonexplicitly inculpatory character of putative evidence; and (5) propensity of individual suspect or general class of offenders to which suspect belongs to maintain and retain possession of putative evidence. State v. Ulizzi, 246 Or App 430, 266 P3d 139 (2011), Sup Ct review denied

 

      Requirements for issuance

 

      Mere fact that police officer may have probable cause to get warrant or make arrest at particular point does not mean he must stop his investigation and go for warrant or make arrest. State v. Allen, 12 Or App 633, 508 P2d 472 (1973)

 

      Where affiant’s independent investigation produces information which directly corroborates information obtained from unnamed informants, affidavit contains evidence of informant’s reliability. State v. Mahon/Sheedy, 17 Or App 177, 521 P2d 37 (1974), Sup Ct review denied

 

      Fact that different and unrelated evidence to current charge was suppressed in wholly unrelated charge occurring months earlier and in no way connected to crime currently charged comes within attenuated connection limitation of fruit of poisonous tree doctrine. State v. Mack, 21 Or App 522, 535 P2d 766 (1975), Sup Ct review denied

 

      Affidavit that alleged sale of controlled substance in residence within 48 hours was sufficient to base issuance of warrant on. State v. Willis, 24 Or App 409, 545 P2d 1392 (1976), Sup Ct review denied; State v. Fugate, Peterlla, 24 Or App 419, 545 P2d 922 (1976), Sup Ct review denied

 

      Where reliability of information supplied by informant is established, affidavit need not recite basis for informant’s knowledge, State v. Delker, 26 Or App 497, 552 P2d 1313 (1976), Sup Ct review denied

 

      Information from two unnamed informants which corroborated each other and which was corroborated by other information known to affiant was sufficient to support issuance of search warrant. State v. Diaz, 29 Or App 523, 564 P2d 1066 (1977)

 

      Where affidavit supporting search warrant identified police informant, contained admissions of criminal involvement that related to object of search warrant and police partially corroborated informant’s information, sufficient basis existed for finding of probable cause to issue search warrant. State v. Carlile/Reiter/Shaw, 290 Or 161, 619 P2d 1280 (1980)

 

      Affidavit including only name of informant and informant’s admission against her penal interest with no police corroboration of information, was not sufficient to support finding of probable cause to issue search warrant. State v. Carlile/Reiter/Shaw, 290 Or 161, 619 P2d 1280 (1980)

 

      Where photographs attached to affidavit showed close proximity of growing marijuana to residence and affidavit stated marijuana was in tree line, affidavit fulfilled first requirement of establishing probable cause to link residents to plants; affiant’s statements based on training and experience fulfilled second requirement. State v. Royer, 68 Or App 478, 682 P2d 283 (1984)

 

      Evidence having indicia of reliability and tending to show evidence is located at place to be searched or on person to be searched satisfies requirement of “probable cause.” State v. Anspach, 298 Or 375, 692 P2d 602 (1984)

 

      Affidavit in support of search warrant which contained inaccurate statements about location of marijuana patch did not establish probable cause to search defendants’ land. State v. Payne, 72 Or App 631, 696 P2d 1147 (1985)

 

      Affidavit in support of search warrant was sufficient where informant who supplied information to police officer personally observed marijuana growing in defendant’s home and informant’s veracity was established by successful completion of polygraph test and lack of any criminal record. State v. Fink, 79 Or App 590, 729 P2d 372 (1986), Sup Ct review denied

 

      Probable cause to search existed where affidavit showed that affiant had smelled growing marijuana at defendant’s residence, that defendant’s basement windows were covered up and that defendant had unusually high electricity usage. State v. McBride, 96 Or App 268, 773 P2d 379 (1989), Sup Ct review denied; State v. Lynch, 119 Or App 97, 849 P2d 556 (1993)

 

      Where magistrate did not sign jurat, trial court may properly consider extrinsic evidence to determine if affidavit supporting search warrant was supported by oath or affirmation. State v. Nunn, 99 Or App 503, 783 P2d 26 (1989)

 

      Where there was sufficient basis for reasonable magistrate to conclude there probably was evidence of car theft operation on defendant’s property, court erred in granting defendant’s motion to suppress evidence seized pursuant to warrant. State v. Dunn, 99 Or App 519, 783 P2d 29 (1989), Sup Ct review denied

 

      Polygraph examiner’s opinion, in combination with other facts presented in affidavit, establish probable cause for search warrant. State v. Coffey, 309 Or 342, 788 P2d 424 (1990)

 

      Where informant is offering hearsay, information derived from hearsay must be analyzed under common law test to determine if, under totality of circumstances disclosed in affidavit, information is sufficiently reliable to support issuance of search warrant. State v. Young, 108 Or App 196, 816 P2d 612 (1991), Sup Ct review denied; State v. Chezem, 125 Or App 341, 865 P2d 1307 (1993)

 

      Although police received information from informant several times, paid informant for supplying information, drove informant to and from home of defendant and instructed informant with regard to purchase of contraband, informant was not government agent. State v. Esplin, 314 Or 296, 839 P2d 211 (1992)

 

      Before bench warrant of arrest may issue for conduct that did not occur in physical presence of court, judge must determine existence of probable cause by reference to sworn statement. State v. Noble, 314 Or 624, 842 P2d 780 (1992)

 

      Where informant acts only as conduit for hearsay information, source of hearsay requires independent corroboration. State v. Strance, 118 Or App 645, 848 P2d 1226 (1993), Sup Ct review denied

 

      Reliability of confidential informant could be established by general reference to reliability in past situations that were remote in time and conducted under controlled conditions. State v. Kapsalis/Scroggins, 123 Or App 138, 859 P2d 1157 (1993), Sup Ct review denied

 

      Information not directly relating to criminal activity may be used to establish veracity of confidential informant. State v. Brotherton, 123 Or App 243, 859 P2d 565 (1993); State v. Spriggs, 137 Or App 601, 905 P2d 263 (1995)

 

      Placing of frequent telephone calls to cocaine dealer’s residence was not sufficient, standing alone, to establish probable cause to search caller’s home. State v. Cotter/Ray, 125 Or App 210, 864 P2d 875 (1993)

 

      In determining sufficiency of affidavit, court could consider information about other persons and places if information tended to show likelihood that object of search would be found in defendant’s residence. State v. Chezem, 125 Or App 341, 865 P2d 1307 (1993)

 

      Corroboration of incidental information, while not helpful in establishing probable cause, demonstrated reliability of informant and was relevant to establishing informant veracity. State v. Chezem, 125 Or App 341, 865 P2d 1307 (1993)

 

      Where officer swore in affidavit supporting search warrant that officer saw plant consistent in color and stem with marijuana in defendant’s home, but did not claim plant was marijuana, inference did not establish probable cause to issue warrant. State v. Carter/Grant, 316 Or 6, 848 P2d 599 (1993)

 

      Informant need not specify amount of controlled substance observed if other facts indicate likelihood of continued presence of controlled substance at site. State v. Goff, 134 Or App 92, 894 P2d 1207 (1995)

 

      Strong odor of marijuana emanating from residence and from defendants emerging from residence is sufficient probable cause for warrant. State v. Rein/Jungwirth, 324 Or 178, 923 P2d 639 (1996)

 

      Where building on curtilage of structure to be searched is known to be rented to person other than structure inhabitant, mere physical proximity of building to structure does not create likelihood that evidence will be found in building. State v. Gloster, 145 Or App 555, 932 P2d 68 (1997)

 

      Facts derived from officer training and experience may contribute factual nexus between criminal activity by defendant and place to be searched. State v. Goodman, 328 Or 318, 975 P2d 458 (1999)

 

      Execution and return of warrants

 

      The requirement of announcement and refusal prior to forcible entry exists primarily for purposes of avoiding unnecessary violence and destruction of evidence and not solely for protection of privacy. State v. Mitchell, 6 Or App 378, 487 P2d 1156 (1971), Sup Ct review denied; State v. Gassner, 6 Or App 452, 488 P2d 822 (1971)

 

      Seizure of identification evidence in course of search has usually been upheld. State v. Garrett, 7 Or App 54, 489 P2d 994 (1971), Sup Ct review denied

 

      Otherwise lawful search and seizure accomplished by entry which was made without announcement of presence and purpose is not unreasonable search and seizure within meaning of this section. State v. Valentine, 264 Or 54, 504 P2d 84 (1972), cert. denied, 412 US 948

 

      Warrant to search individual can support search of person conducted prior to determination that person is individual identified in warrant. State v. Eismann, 21 Or App 92, 533 P2d 1379 (1975)

 

      There is no constitutional requirement that police officers who hold valid arrest warrant and have probable cause to believe subject is located on private premises must also obtain search warrant before they may enter premises to execute arrest warrant. State v. Jordan, 288 Or 391, 605 P2d 464 (1980), cert. denied, 449 US 846; State v. Davis, 313 Or 246, 834 P2d 1008 (1992)

 

      Where officers went to back of house after having received no answer at front door, their action was trespass and therefore violated this section. State v. Ohling, 70 Or App 249, 688 P2d 1384 (1984), Sup Ct review denied

 

      Where police had warrant to search defendant’s home for cocaine, fruits and instrumentalities of its sale, and evidence of possession, opening and searching safe found in defendant’s bedroom was within scope of warrant. State v. Rogers, 85 Or App 303, 736 P2d 1024 (1987), Sup Ct review denied

 

      Search of box in bedroom is within scope of warrant when officer has reasonable subjective and objective belief that illegal paraphernalia named in warrant is in box. State v. Graham, 85 Or App 535, 737 P2d 642 (1987)

 

      Where police entered hotel room of man named Danny whom they believed to be drug seller Danny Aldrich for whom arrest warrant had been obtained but did not obtain search warrant for room and learned that man in room was defendant Danny Wise, not Aldrich, arrest warrant did not permit search of place where arrested person was found. State v. Wise, 305 Or 78, 749 P2d 1179 (1988)

 

      Warrant to search certain premises applies only to those premises and if during search separate premises are encountered and searched, search of latter is unauthorized without regard to whether officers could have anticipated ahead of time that they would encounter those separate premises. State v. Devine, 307 Or 341, 768 P2d 913 (1989); State v. Martini, 104 Or App 44, 799 P2d 184 (1990)

 

      Where police seized specific items not listed in search warrant, including rent receipt introduced at trial against defendant, police did not exceed scope of warrant because affidavits supporting search warrant mentioned defendant was using alias and receipt helped establish identity of defendant. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

 

      Search warrants limited to items relating to specific crime did not grant police carte blanche to search for any evidence and seize anything they encountered so warrants were sufficient. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

 

      Where there is service of conformed, certified true copy of search warrant on person subject to search, actual original search warrant need not be provided. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

 

      Search of house located at 1877 S.E. Main Street was unauthorized where warrant stated location to be 1837 S.E. Main Street and described with particularity location and appearance of house. State v. Davis, 106 Or App 546, 809 P2d 125 (1991)

 

      Legal boundary or property line specified in warrant did not circumscribe officers’ authority to search trailer located only 40 or 50 feet from premises when trailer reasonably appeared associated with premises and was specifically described in warrant. State v. Brown, 109 Or App 636, 820 P2d 878 (1991), Sup Ct review denied

 

      Search warrant that granted authority to search garage and other buildings at address also authorized police to search area above garage where defendant lived. State v. Wood, 114 Or App 601, 836 P2d 176 (1992), Sup Ct review denied

 

      Inoperable vehicle manifesting use as structure was part of “premises” where it was parked. State v. Showalter, 134 Or App 34, 894 P2d 504 (1995)

 

      Amount of time that is reasonable for officers to wait between announcement and entry depends on circumstances. State v. Ordonez-Villanueva, 138 Or App 236, 908 P2d 333 (1995), Sup Ct review denied

 

Warrantless search or seizure

 

      Circumstances justifying search or seizure

 

      Warrantless seizure of marijuana in defendant’s partially burned home by deputy sheriff, called to home to investigate fire, was justified since deputy had “prior justification for intrusion” and discovery was “inadvertent” in that deputy had no reason to suspect presence of marijuana in defendant’s home. State v. Young, 11 Or App 276, 501 P2d 1001 (1972)

 

      Hearsay evidence does not provide basis for probable cause where more direct evidence is available. State v. Branch, 13 Or App 248, 508 P2d 254 (1973)

 

      Since illegal search by private party is subject to constitutional restraints if private party is aided by police, evidence was properly suppressed where officer requested and observed suspect remove stolen property from place where officer could not have gone without warrant. State v. Becich, 13 Or App 415, 509 P2d 1232 (1973), Sup Ct review denied

 

      Where vehicle is instrumentality of crime and occupants have been arrested, vehicle may be searched without warrant for further evidence of crime. State v. Walden, 15 Or App 259, 515 P2d 407 (1973), Sup Ct review denied

 

      Exigent circumstances, justifying warrantless search in form of taking blood sample, existed where: (1) there was probable cause to believe defendant had been driving under influence of intoxicants by nature of accident, smell of alcohol and defendant’s red eyes; and (2) it is medical fact that alcohol in blood dissipates with passage of time. State v. Kloucek, 17 Or App 74, 520 P2d 458 (1974), Sup Ct review denied

 

      There being probable cause to search house for heroin and exigent circumstances for warrantless entry, search was valid. State v. Miller, 19 Or App 604, 528 P2d 1082 (1974), Sup Ct review denied

 

      Presence of bent spoon in pocket of individual present in premises being searched, under warrant, for methamphetamines did not give rise to well warranted suspicion that search of individual would reveal evidence of crime. State v. Ford, 20 Or App 384, 531 P2d 740 (1975)

 

      Search of automobile did not require warrant where police had probable cause and vehicle was in public place. State v. Baggett, 23 Or App 113, 541 P2d 493 (1975)

 

      Warrantless seizure of evidence of narcotics, defendants and their automobile was permissible where investigating officers had probable cause to believe that defendants were in possession of heroin and unexpected threatened removal of the evidence from jurisdiction constituted exigent circumstances. State v. Basler, 24 Or App 723, 546 P2d 1084 (1976)

 

      Since there was no indication that probationer’s full rights under Fourth Amendment to United States Constitution were expressly restricted as condition of probation, warrantless search of probationer’s residence conducted without probable cause was invalid. State v. Culbertson, 29 Or App 363, 560 P2d 667 (1977)

 

      Where police officers conducted warrantless search and seized evidence immediately after homicide and then conducted further warrantless search and seized more evidence 14 hours after initial search, second search was not based on exigent circumstances and therefore was improper under this section. State v. Eacret, 40 Or App 341, 595 P2d 490 (1979), Sup Ct review denied

 

      Where car used in theft was found within hours after theft at house where persons matching description of thieves appeared to reside, circumstances provided probable cause to believe car contained evidence of crime and there were “exigent circumstances” justifying officers’ search of car without warrant. State v. Greene, 285 Or 337, 591 P2d 1362 (1979)

 

      Where police had probable cause to search automobile and ample time to obtain warrant, they could not create exigent circumstances through their own inaction. State v. Fondren, 285 Or 361, 591 P2d 1374 (1979)

 

      Warrantless search of closed container found in automobile could not be justified unless exigent circumstances existed at time search was made. State v. Downes, 285 Or 369, 591 P2d 1352 (1979)

 

      Where police objective was to catch alleged drug supplier who frequently delivered drugs to dwelling under surveillance, fact that deliveries were sporadic and drugs were usually of destructible nature did not give rise to exigent circumstances justifying warrantless search. State v. Matsen/Wilson, 287 Or 581, 601 P2d 784 (1979)

 

      Act of “securing the premises” without warrant did not validate warrantless entry and seizure of evidence. State v. Matsen/Wilson, 287 Or 581, 601 P2d 784 (1979)

 

      There was no unlawful search when police took telephoto photographs from across street of defendant who was exposing himself through his living room window since he could be seen from the street without aid of telephoto lens. State v. Louis, 296 Or 57, 672 P2d 708 (1983)

 

      Where defendant was arrested for driving while suspended and giving false name to police officer, it was reasonable to search for defendant’s wallet and identification it could be expected to contain; fact that defendant was locked in back of police car at time of search does not invalidate it. State v. Fesler, 68 Or App 609, 685 P2d 1014 (1984), Sup Ct review denied

 

      Warrantless entry of defendant’s hotel room was justified under exigent circumstance exception to search warrant requirement of this section where police reasonably believed defendant might become aware of apprehension of codefendant and had means of destroying evidence. State v. Ritter, 71 Or App 282, 692 P2d 158 (1984)

 

      In investigating DUII offense, need to secure evidence might justify warrantless entry of home if state proves arresting officers could not obtain warrant before alcohol in suspect’s body dissipated. State v. Roberts, 75 Or App 292, 706 P2d 564 (1985)

 

      Police officer with reasonable belief that person poses immediate threat of physical harm to officer or others is entitled to make protective search. State v. Bates, 304 Or 519, 747 P2d 991 (1987); State v. Ehly, 317 Or 66, 854 P2d 421 (1993); State v. Bridgeman, 173 Or App 37, 23 P3d 370 (2001)

 

      Arrest is not necessary under this section before police may extract, without warrant or consent, blood from person suspected of committing alcohol-related crime. State v. Milligan, 304 Or 659, 748 P2d 130 (1987); State v. Langevin, 304 Or 674, 748 P2d 139 (1987)

 

      Exigent circumstance is situation that requires immediate action to prevent imminent danger to life or serious damage to property, to forestall escape or to prevent destruction of evidence. State v. Heikkinen, 94 Or App 472, 765 P2d 1252 (1988); State v. Jangala, 154 Or App 176, 961 P2d 246 (1998)

 

      This section applies to land outside curtilage, but where land onto which officers crossed was unfenced and so “brushy” that it was hard to identify property boundary and nothing indicated intent to exclude persons from property, warrantless entry onto property did not violate Oregon Constitution. State v. Andreasen/Cooke, 307 Or 190, 766 P2d 1024 (1988)

 

      Court properly denied motion to suppress where police observed from outside of motel room man that looked like suspect attempting to climb out of window, because there was both probable cause and exigent circumstances to justify entry and search of room for that man and when he was found, contested evidence was in plain view. State v. Brown, 98 Or App 129, 778 P2d 976 (1989)

 

      Where search of vehicle followed high-speed chase during which shotgun was fired at police from vehicle, vehicle stopped at night in rural area where officer’s view was obscured and police were entitled for their own safety to determine whether fugitives had taken shotgun upon leaving, exigent circumstances justified search. State v. Bass, 98 Or App 266, 778 P2d 993 (1989), Sup Ct review denied

 

      Warrant was not required to open box that allowed enough visibility through top to announce contents. State v. Bechtold, 99 Or App 593, 783 P2d 1008 (1989), Sup Ct review denied

 

      Officer may search arrestee’s person for weapon, tool or implement that could aid in person’s escape, if officer is concerned about possibility of escape and if search is reasonable under circumstances. State v. Smith, 103 Or App 113, 796 P2d 665 (1990); State v. Jones, 103 Or App 123, 796 P2d 670 (1990), Sup Ct review denied

 

      Working methamphetamine lab in environment that poses threat of immediate harm to life and property presents exigent circumstances justifying entry without warrant. State v. Chapman, 107 Or App 325, 813 P2d 557 (1991)

 

      To justify warrantless search, police must have probable cause to believe working methamphetamine lab exists in community environment, and must be able to articulate particular facts establishing belief that lab exists at specific location, that location immediately endangered surrounding community, that entry took place as promptly after discovery as possible and that search was no more intrusive than necessary. State v. Chapman, 107 Or App 325, 813 P2d 557 (1991)

 

      Seizure of rifle from parked vehicle was justified by exigency of officer safety and need to preserve evidence because police had probable cause to believe vehicle was involved in recent shooting, rifle was in plain view, officer was alone and officer had reason to believe suspects were still in immediate area. State v. Parras, 110 Or App 200, 822 P2d 151 (1991)

 

      Protections of this section are applicable to searches of public school students by school officials on campus but collective knowledge of school officials gave them probable cause to believe child was in possession of gun and therefore warrantless search was permissible. State ex rel Juv. Dept. v. DuBois, 110 Or App 314, 821 P2d 1124 (1991)

 

      Exigent circumstances exist if situation requires police to act swiftly to prevent danger to life, prevent serious damage to property or forestall escape of suspect or destruction of evidence. State v. Stevens, 311 Or 119, 806 P2d 92 (1991); State v. Snow, 337 Or 219, 94 P3d 872 (2004)

 

      Defendant’s person, residence, vehicle and property each represent distinct privacy interest and, although parole officer observed things in defendant’s house that made him suspect defendant was selling drugs, search of defendant’s cars was valid only if officer had reasonable grounds to believe evidence of parole violation would be found therein. State v. Brown, 110 Or App 604, 825 P2d 282 (1992)

 

      Defendant’s admission that bag contained “fix kit” provided probable cause to support opening bag. State v. Frias, 115 Or App 149, 836 P2d 1367 (1992)

 

      Discovery of pills and tar heroin during lawful search gave officer further authority to seize heroin and search for other controlled substances. State v. Anfield, 313 Or 554, 836 P2d 1337 (1992)

 

      Remaining inside lawfully entered residence to await issuance of search warrant was not unlawful seizure where high probability existed that evidence would otherwise be destroyed. State v. Sargent, 123 Or App 481, 860 P2d 836 (1993), aff’d on other grounds, 323 Or 455, 918 P2d 819 (1996)

 

      Search of object discovered during frisk is justified by officer safety concerns if object is capable of containing weapon and circumstances of encounter create reasonable likelihood that it does. State v. Blevins, 142 Or App 237, 920 P2d 1131 (1996), Sup Ct review denied

 

      Decision to arrest intoxicated driver does not negate existence of exigent circumstances justifying seizure of evidence gathered through field sobriety tests. State v. Skeans, 149 Or App 570, 945 P2d 529 (1997)

 

      Substantial reduction in risk of danger does not necessarily preclude search of stopped person as further measure to ensure officer safety. State v. Rickard, 150 Or App 517, 947 P2d 215 (1997), Sup Ct review denied

 

      Search or seizure to prevent destruction of evidence may be justified without specific contemporaneous observation indicating attempted destruction. State v. Jangala, 154 Or App 176, 961 P2d 246 (1998)

 

      Where officer training and experience indicated that members of particular group were often armed, clothing and location indicative of membership in group were specific and articulable facts providing officer with reasonable suspicion that person might be armed. State v. Miglavs, 186 Or App 420, 63 P3d 1202 (2003), aff’d 337 Or 1, 90 P3d 607 (2004)

 

      Where person is given opportunity to assert possessory or privacy interest in item, failure to assert interest constitutes abandonment of person’s privacy right regarding item. State v. Linville, 190 Or App 185, 78 P3d 136 (2003), Sup Ct review denied

 

      Police have probable cause to conduct blood alcohol content analysis on driver suspected of being intoxicated notwithstanding that police believe source of driver intoxication is inhalant or controlled substance. State v. Burshia, 201 Or App 678, 120 P3d 487 (2005), Sup Ct review denied

 

      Persons do not retain possessory interest or protected privacy interest in contents of garbage container once garbage is collected by authorized sanitation company. State v. Howard/Dawson, 204 Or App 438, 129 P3d 792 (2006), aff’d 342 Or 635, 157 P3d 1189 (2007)

 

      For protective search to be valid, police officer’s belief that person poses immediate threat of physical harm must be supported by specific articulable facts, and officer’s choice of safety precautions must be reasonable under totality of circumstances. State v. Foster, 347 Or 1, 217 P3d 168 (2009); State v. Rudder, 347 Or 14, 217 P3d 1064 (2009)

 

      Officials at public school may conduct warrantless search of student if, based on specific and articulable facts, officials have reasonable suspicion that individual student possesses item that poses immediate threat to student safety. State ex rel Juvenile Department v. M.A.D., 348 Or 381, 233 P3d 437 (2010)

 

      Where defendant, who murdered victims in their home and dumped their bodies elsewhere, was seen by officers wearing blood-stained pants and was in murder victims’ home, and officers reasonably believed defendant was destroying evidence, exigent circumstances existed to permit officers’ warrantless entry into home. State v. Hudson, 253 Or App 327, 290 P3d 868 (2012), Sup Ct review denied

 

      Officers constitutionally may, in appropriate circumstances, stop and temporarily detain for questioning person whom they reasonably believe is potential material witness to crime if: (1) officer reasonably believes that an offense involving danger of forcible injury recently has been committed nearby; (2) officer reasonably believes that person has knowledge that may aid investigation of suspected crime; and (3) detention is reasonably necessary to obtain or verify identity of person, or to obtain account of crime. State v. Fair, 353 Or 588, 302 P3d 417 (2013)

 

      Law enforcement officers have justification for temporarily seizing or stopping person to conduct investigation if officer’s activities are reasonably related to investigation and reasonably necessary to effectuate investigation. State v. Watson, 353 Or 768, 305 P3d 94 (2013)

 

      Where defendant placed McDonald’s bag and water bottle on compressor next to gas station during conversation with police officer, then went with police officer across street but did not accompany act of setting down bag and bottle with words or conduct indicating defendant intended to leave bag behind, defendant did not relinquish constitutionally protected interest in bag and police officer’s search of bag was unlawful. State v. Brown, 273 Or App 347, 359 P3d 413 (2015)

 

      Unreasonable search or seizure

 

      Where police had searched defendant illegally on past occasions, conduct of police on occasion of arrest determined admissibility of property abandoned by defendant in anticipation of illegal search. State v. Hogg, 7 Or App 99, 490 P2d 198 (1971)

 

      It was improper, in noncriminal and nonemergency situation, for police officer to conduct warrantless search of intoxicated woman’s purse to search for identification when she was being taken into custody for transportation to treatment or holding facility. State v. Newman, 292 Or 216, 637 P2d 143 (1981)

 

      Police could not, without warrant, in nonemergency situation, open closed container seized from intoxicated person at time person was booked into holding facility under civil detoxification law where purpose of opening container was to inventory contents or to detect evidence of crime. State v. Lawrence, 58 Or App 423, 648 P2d 1332 (1982)

 

      Where defendant and companion were sitting in parked truck at 3:45 a.m. in deserted parking lot and no other evidence of robbery or burglary existed, though facts made it reasonable for police officer to inquire further, they did not create reasonable suspicion that defendant or companion had committed crime. State v. Messer, 71 Or App 506, 692 P2d 713 (1984)

 

      For doctrine of inevitable discovery to be applicable, state must show by preponderance of evidence that proper and predictable investigatory procedures would have been followed and would have resulted in discovery of evidence in question. State v. Miller, 300 Or 203, 709 P2d 225 (1985), cert. denied, 475 US 1141; State v. Johnson, 177 Or App 244, 35 P3d 1024 (2001)

 

      Roadblock established to find driving under influence of intoxicants violations without individualized probable cause constitutes unreasonable search. Nelson v. Lane County, 79 Or App 753, 720 P2d 1291 (1986), aff’d 304 Or 97, 743 P2d 692 (1987)

 

      Broken front door screen and open front door would not lead prudent and reasonable officer to believe that burglary was being or had been committed and warrantless entry was not permissible. State v. Apodaca, 85 Or App 128, 735 P2d 1264 (1987)

 

      Evidence obtained from defendants stopped and searched at police-conducted road block to detect persons driving under influence of intoxicants without individualized suspicion of wrongdoing requires suppression. State v. Boyanovsky, 304 Or 131, 743 P2d 711 (1987); State v. Anderson, 304 Or 139, 743 P2d 715 (1987)

 

      Person entrusting possession of article to another retains sufficient privacy interest in article to challenge lawfulness of search that uncovers article. State v. Tanner, 304 Or 312, 745 P2d 757 (1987); State v. Fraga-Ortiz, 176 Or App 268, 31 P3d 1089 (2001)

 

      Search of defendant for driver license was not reasonably related to crime of failing to present license. State v. Scheer, 99 Or App 80, 781 P2d 859 (1989)

 

      Even if entry of residence by fire department was valid by reason of smell of ether emanating from house, no authority was presented for warrantless entry by police officer accompanying fire fighters, nor could entry be justified under emergency aid doctrine in absence of reasonable belief or suspicion of criminal activity. State v. Sanchez, 105 Or App 451, 805 P2d 153 (1991), Sup Ct review denied

 

      Where police officer had seized purse so that purse or contents were not threat and where officer had no reason to believe that purse contained contraband, observation that purse was “really heavy” did not justify search of purse. State v. Booker, 110 Or App 6, 820 P2d 1378 (1991)

 

      Where police officers seized briefcase upon arrest of suspect, transported it to police station and subsequently conducted warrantless search of briefcase, search was not valid under exigent circumstances exception to warrant requirement because there was no evidence that police were involved in performing other necessary tasks that required search to be delayed. State v. Clarke, 110 Or App 114, 822 P2d 138 (1991), Sup Ct review denied

 

      Seizure of rifle cartridges from vehicle after one suspect had been arrested and two other officers were on scene was not justifiable because cartridges did not threaten officer safety and enough officers were on hand to secure vehicle and obtain warrant. State v. Parras, 110 Or App 200, 822 P2d 151 (1991)

 

      In nonemergency, noninvestigative situation, it is unreasonable for officer to open any closed container. State v. Morton, 110 Or App 219, 822 P2d 148 (1991)

 

      When officer conducted warrantless search of lost wallet and did not end search after finding identification in wallet, officer conducted unreasonable search. State v. Paasch, 117 Or App 302, 843 P2d 1011 (1992)

 

      Police officer had authority to search defendant for other weapons incident to defendant’s arrest for concealed weapon. State v. Anfield, 313 Or 554, 836 P2d 1337 (1992)

 

      Exclusionary rule for violation of this section applies in probation revocation proceeding. State ex rel Juv. Dept. v. Rogers, 314 Or 114, 836 P2d 127 (1992)

 

      Where officer failed to follow procedure for frisking stopped person and there was no reason to believe doing so would be futile, use of handcuffs constituted arrest rather than precaution for officer safety. State v. Johnson, 120 Or App 151, 851 P2d 1160 (1993), Sup Ct review denied

 

      Where defendant arrested inside house was handcuffed and in police car, and officer was with defendant, search of defendant’s car for weapon was not justified by safety concerns. State v. Meyer, 120 Or App 319, 852 P2d 879 (1993)

 

      Partial abandonment of privacy interest by leaving property in plain view does not constitute abandonment of interest against further examination or seizure without probable cause. State v. Portrey, 134 Or App 460, 896 P2d 7 (1995); State v. Cardell, 180 Or App 104, 41 P3d 1111 (2002)

 

      Person who disclaims interest in property seized may assert illegality of search if person has interest in area containing property seized. State v. Jacobsen, 142 Or App 341, 922 P2d 677 (1996)

 

      Defendant’s disclaimer of interest in property does not make property subject to illegal search. State v. Creighton, 142 Or App 378, 921 P2d 1339 (1996)

 

      Where opaque, closed container announces illegal contents, announcement does not allow warrantless search of container if additional contents may be present inside container. State v. Kruchek, 156 Or App 617, 969 P2d 386 (1998), aff’d 331 Or 664, 20 P3d 180 (2001)

 

      Action taken by officer as safety precaution cannot serve as threatening circumstance that justifies search based on officer safety concerns. State v. Dyer, 157 Or App 326, 970 P2d 249 (1998)

 

      Where unlawful police conduct occurs, subsequent abandonment of property by defendant establishes absence of defendant interest in property if conduct and abandonment are interrupted by intervening events. State v. Knox, 160 Or App 668, 984 P2d 294 (1999), Sup Ct review denied

 

      Where police officer requests private citizen to conduct search, citizen’s actions within scope of request are subject to constitutional prohibitions against unreasonable search or seizure. State v. Tucker, 330 Or 85, 997 P2d 182 (2000)

 

      Where opaque, closed container is seized based on officer safety concerns and container does not announce contents, warrantless opening of container is unlawful search. State v. Gilkey/White, 172 Or App 95, 18 P3d 402 (2001)

 

      Where defendant took extra but imperfect measures to protect privacy, defendant’s activities did not become plainly visible to public simply because police were able to obtain vantage point that overcame measures. State v. Fortmeyer/Palmer, 178 Or App 485, 37 P3d 223 (2001)

 

      No historical exception exists permitting suspicionless, warrantless search or seizure of boats. State v. Lecarros, 187 Or App 105, 66 P3d 543 (2003)

 

      Absent evidence that property access of overnight guest was limited, guest had same privacy right in property as owner. City of Eugene v. Silva, 198 Or App 101, 108 P3d 23 (2005)

 

      Person retains possessory interest in contents placed in closed, opaque garbage container at specified collection point in front of person’s residence for collection by designated entity. State v. Galloway, 198 Or App 585, 109 P3d 383 (2005)

 

      Warrantless entry of residence by medical examiner solely for purposes of examining body and investigating cause of death does not violate right to be free from unreasonable search. State v. Ferrara, 218 Or App 57, 178 P3d 250 (2008), Sup Ct review denied

 

      Unlawful extension of stop, alone, does not constitute seizure. State v. Ross, 256 Or App 746, 304 P3d 759 (2013)

 

      No seizure occurred where law enforcement officer, to determine age of defendant who was patronizing age-restricted adult store, requested to view defendant’s identification then called dispatch to verify validity of identification and returned identification to defendant within 15 seconds. State v. Backstrand, 354 Or 392, 313 P3d 1084 (2013); State v. Dierks, 264 Or App 443, 332 P3d 348 (2014)

 

      Where defendant was lying face down on bed, defendant’s hands were not concealed, defendant did not make any movements but did not respond to officers, evidence obtained as result of officers waking and questioning defendant about additional weapons was not justified by belief that defendant posed immediate risk of serious physical injury and should be suppressed. State v. Easton, 264 Or App 339, 332 P3d 315 (2014)

 

      Where police officer stopped defendant for traffic violation and defendant provided false name and birthdate to officer without knowing individual whose information defendant provided had suspended license, and officer cited defendant for driving while suspended and driving without insurance but not for original traffic violation and officer later could not remember original traffic violation, this section still applies because its application does not require “lawful” enforcement of motor vehicle laws. State v. Suppah, 358 Or 565, 369 P3d 1108 (2016)

 

      Where police office took defendant’s identification card and held it while conducting investigation and at trial could not remember if identification was returned to defendant, officer significantly restrained defendant’s liberty of movement so as to create seizure. State v. Thompson, 264 Or App 754, 333 P3d 1125 (2014)

 

      Where prosecutor requested to perform resting or natural nystagmus test on defendant while in courtroom in presence of jury to compare in-court results to results previously administered field sobriety test, in-court test constitutes “search” for purposes of this section because test may reveal physical characteristics not plainly manifested in public, and prosecutor may not perform test without warrant or other exception to constitutional warrant requirement. State v. McCrary, 266 Or App 513, 337 P3d 1008 (2014)

 

      Where police officers stopped defendant and passenger for traffic violation and based on officers’ reasonable suspicion that defendant and passenger were under influence of drugs officers called for drug-detection dog, officers’ observations of passenger’s behavior that indicated passenger may be in possession of drugs at time of stop did not create objectively reasonable conclusion that defendant was in possession of drugs at time of stop sufficient to lawfully extend stop for dog to search vehicle. State v. Miller, 267 Or App 382, 340 P3d 740 (2014)

 

      Where officer relied on factual information provided by shared knowledge of other police officers in unit and officer’s own observations of distinctive behavior of individual under influence of methamphetamine established by officer’s training and experience, seizure of defendant was based on reasonable suspicion of criminal activity. State v. Holdorf, 355 Or 812, 333 P3d 982 (2014)

 

      Where Portland Police Bureau officers took express mail package addressed to defendant from United States Postal Service sorting facility and subjected package to drug dog sniff test, then traveled with package to defendant’s home, officers significantly interfered with defendant’s possessory interest in package and unlawfully seized package without warrant under circumstances that required warrant. State v. Barnthouse, 271 Or App 312, 350 P3d 536 (2015), Sup Ct review allowed

 

      Where police officers in boat approached defendant and two fishing companions in fishing boat after officers witnessed defendant catch and fail to release yellow-eye rockfish unharmed as required by law, announced officers would inspect party’s halibut fishing tags and directed party to get out tags for inspection, officers restrained party’s liberty in manner constituting seizure for which warrant was required under this provision. State v. Paskar, 271 Or App 826, 352 P3d 1279 (2015)

 

      Where defendant saw police officer and began walking away, returned when police officer began speaking to defendant and inquired about contents of defendant’s bag, then told police officer defendant needed to use bathroom to which police officer responded with request for defendant’s identification, encounter was not consensual and defendant was unlawfully seized because reasonable person would not feel free to leave. State v. Benning, 273 Or App 183, 359 P3d 357 (2015)

 

      Where police observed defendant make hand-to-hand drug transaction on street then took defendant to police precinct where police subjected defendant to strip search during which police forcibly maneuvered defendant’s body, search was not reasonable in time, scope or intensity and so was unlawful. State v. Scruggs, 274 Or App 575, 362 P3d 265 (2015)

 

      Where officer approached five armed individuals, including defendant, in remote forested area, to issue citation for violations involving use of firearms, and officer conducted pat-down search of defendant for additional weapons, search was unreasonable because nothing about defendant’s demeanor, conduct or status suggested defendant posed immediate threat of serious injury to officer. State v. Smith, 277 Or App 298, 373 P3d 1089 (2016)

 

      Where encounter occurred at security checkpoint at entrance of court facility where posted signs informed people that they were subject to search before entering facility and that “firearms” and “dangerous weapons” were prohibited, nothing in surrounding circumstances would have indicated to reasonable person that officer intended to search for drugs, drug paraphernalia or other contraband that could have been contained in closed makeup compact; thus, search was unreasonable because defendant’s consent to officer’s general request to search purse did not extend to search of closed makeup container within purse. State v. Winn, 278 Or App 460, 375 P3d 539 (2016)

 

      Unlawful stop occurred when out-of-state officer stopped defendant for traffic violations in Oregon because officer acted beyond officer’s jurisdiction and did not exercise lawful authority to pursue and stop; thus, evidence gathered against defendant during unlawful stop is inadmissible. State v. Keller, 278 Or App 760, __ P3d __ (2016)

 

      Probable cause

 

      State need not prove reliability of “citizen informer” to extent that it must prove reliability of “unnamed police informant,” since citizen informer hides behind no cloak of anonymity. State v. Poteet, 9 Or App 231, 495 P2d 783 (1972), Sup Ct review denied; State v. Poole, 11 Or App 55, 500 P2d 726 (1972), Sup Ct review denied

 

      The state is not required to disclose identity of informant when any information informant might possess would go only to probable cause issue and would have no bearing on question of guilt or innocence. State ex rel Kerns v. Read, 11 Or App 48, 501 P2d 82 (1972), Sup Ct review denied

 

      Information broadcast to searching officer based on information received from eyewitness “citizen informer” was sufficiently reliable and specific to constitute probable cause. State v. Poole, 11 Or App 55, 500 P2d 726 (1972), Sup Ct review denied

 

      Defendant’s furtive conduct together with officer’s knowledge that defendant was involved with narcotics and drugs gave officer probable cause to believe that defendant was attempting to conceal incriminating evidence from him and to seize evidence for inspection. State v. Jacobs, 11 Or App 218, 501 P2d 353 (1972), Sup Ct review denied

 

      Police may search without warrant if there is probable cause to search and if they have probable cause to believe that immediate search is necessary to protect safety of officer or bystander or to avoid loss of evidence. State v. Krohn, 15 Or App 63, 514 P2d 1359 (1973), Sup Ct review denied; State v. Bracco, 15 Or App 672, 517 P2d 335 (1973), Sup Ct review denied

 

      Combination of defendant’s possession of hand-rolled cigarette and defendant’s furtive gestures held sufficiently strong circumstances to justify seizure of cigarette. State v. Hunt, 15 Or App 76, 514 P2d 1363 (1973), Sup Ct review denied

 

      Discovery by one police officer of defendant’s personal property in same room with illegal narcotics, unknown to another officer, did not constitute probable cause for that other officer to arrest and search defendant. State v. Mickelson, 18 Or App 647, 526 P2d 583 (1974)

 

      Officers proceeding in good faith but with defective warrant are not precluded from development of probable cause from circumstances arising independently of warrant. State v. Lafferty, 19 Or App 643, 528 P2d 1096 (1974)

 

      Probable cause requires well-warranted suspicion, not certainty. State v. Dills, 19 Or App 702, 528 P2d 1354 (1974)

 

      Where probable cause exists for seizure and examination of property, fact that reasons given for seizure and examination are inventory and safekeeping does not require that evidence be suppressed. State v. Brewton, 19 Or App 899, 529 P2d 967 (1974), Sup Ct review denied

 

      Information that defendant “cased” homes that would be “easy to loot” followed by defendant’s attempt to elude police at high speed, furnished probable cause to search vehicle and inventory contents without warrant. State v. Hirsch, 267 Or 613, 503 P2d 726, 518 P2d 649 (1974)

 

      Both probable cause to search and exigent circumstances existed when officers discovered contraband while searching premises for suspects in response to neighbor’s allegation that burglary was in progress. State v. Schrag, 21 Or App 655, 536 P2d 461 (1975)

 

      Arresting officer had probable cause to search defendant without warrant based on information furnished by reliable informant. State v. Gilbert, 24 Or App 907, 547 P2d 632 (1976)

 

      When police officer experienced in drug enforcement smelled odor of burned marijuana emanating from immediate vicinity of defendant, there was probable cause to search following complaint as to use of drugs by defendant. State v. Wallace, 29 Or App 429, 563 P2d 1237 (1977)

 

      When search of house had uncovered narcotics, officer knew that defendant was narcotics user, and defendant made furtive gesture with container, officer had probable cause to make warrantless search of container. State v. Diaz, 29 Or App 523, 564 P2d 1066 (1977)

 

      Observation of roach holder during airport search did not give police officer probable cause to make detailed search. State v. Chipley, 29 Or App 691, 564 P2d 1096 (1977), Sup Ct review denied

 

      Where shooting victim told deputy sheriff “Dan the Jeweler shot me. He drives a truck for Safeway.” and officer ordering arrest had information that defendant was known to local law enforcement officials as “Dan the Jeweler” and worked for Safeway, there was probable cause to make warrantless arrest. State v. Holterman, 69 Or App 509, 687 P2d 1097 (1984), Sup Ct review denied

 

      Probable cause and exigent circumstances justified warrantless “seizure” of defendant’s luggage from his van where, inter alia, officers knew he had traveled to and from city known as distribution point for cocaine, during initial encounter with officer defendant lied about duration of trip, his identity, ownership of van and not having driver license, was exceptionally agitated during encounter and had prior arrest for “cultivation.” State v. North, 72 Or App 1, 694 P2d 990 (1985), Sup Ct review denied

 

      Where, after viewing photographic “throwdown” including defendant’s photograph, most witnesses only said defendant’s appearance was close to that of assailant, but one positively identified him from photos, there was probable cause for arrest. State v. Maher, 72 Or App 543, 696 P2d 573 (1985), Sup Ct review denied

 

      Where officer had probable cause to seize paperfold that he believed contained contraband, he had right, without warrant, to open and search paperfold for controlled substance and, once contraband was discovered, he had right to test it. State v. Herbert, 302 Or 237, 729 P2d 547 (1986); State v. Larsen, 84 Or App 403, 734 P2d 362 (1987)

 

      Where container is type uniquely associated with transportation and storage of contraband, container gives experienced police officer probable cause to believe contents are contraband. State v. Herbert, 302 Or 237, 729 P2d 547 (1986); State v. English, 164 Or App 580, 994 P2d 165 (1999), Sup Ct review denied

 

      Where defendant had lost control of her vehicle and police officer only had 20 to 30 seconds to speak to her before she was removed to ambulance, and officer did not detect any odor of intoxicants, officer did not have probable cause to search vehicle or its contents. State v. Vandehey, 83 Or App 325, 731 P2d 1049 (1987)

 

      Where defendant was under arrest for driving under influence of intoxicants and officer conducted pat-down search disclosing cigarette case which defendant, upon officer’s inquiry, said contained “drugs,” officer had probable cause to believe defendant was committing crime of possession of controlled substance and that cigarette case contained evidence of that crime; once the cigarette case was opened and contraband discovered, officer had right to test it, and evidence was admissible. State v. Finch, 86 Or App 315, 739 P2d 66 (1987)

 

      Where officer had probable cause to believe defendant possessed at least one ounce of marijuana from amount of strippings found on floor of car, he was entitled to search for and seize evidence. State v. Quigley, 100 Or App 418, 786 P2d 1274 (1990)

 

      Suspicion, no matter how well founded, does not rise to level of probable cause. State v. Spencer, 101 Or App 425, 790 P2d 1205 (1990)

 

      Where officer observed paperfolds suspected of containing controlled substance in plain view during street encounter, officer had probable cause to arrest defendant. State v. Shelton, 103 Or App 179, 796 P2d 390 (1990), modified 105 Or App 570, 805 P2d 698 (1991)

 

      Negative record check is not probable cause for officer to search defendant’s purse, and search cannot be justified as incident to arrest for failure to display operator’s license. State v. Scarborough, 103 Or App 231, 796 P2d 394 (1990)

 

      Knowledge of several police officers may collectively establish probable cause to arrest and officer may arrest suspect if officer reasonably believes that other officers requesting arrest have probable cause. State v. Walsh, 103 Or App 517, 798 P2d 262 (1990), Sup Ct review denied

 

      Where arresting officer relied on teletype request from another jurisdiction requesting arrest of felony suspect, arrest of defendant was proper even though officer did not personally have probable cause to arrest. State v. Pratt, 309 Or 205, 785 P2d 350 (1990)

 

      Where officers’ suspicion that defendants had committed burglary was good guess, by virtue of defendants’ conduct, demeanor and items in their possession, suspicion was insufficient to warrant probable cause. State v. Matthys, 106 Or App 276, 808 P2d 94 (1991), Sup Ct review denied

 

      “Probable cause” has both subjective component and objective component; therefore officer must hold belief and belief must be reasonable. State v. Dowdy, 117 Or App 414, 844 P2d 263 (1992); State v. Ingman, 127 Or App 27, 870 P2d 861 (1994), Sup Ct review denied

 

      Where officer observed that automobile held items of type recently used in robbery and shape of pillowcase contradicted driver’s claim regarding contents, officer had probable cause to search pillowcase. State v. Taylor, 119 Or App 209, 850 P2d 1118 (1993), Sup Ct review denied

 

      Search of box found in defendant’s car was not justified where officer lacked probable cause to believe that box contained weapon and there was no need for haste once box was seized. State v. Meyer, 120 Or App 319, 852 P2d 879 (1993)

 

      Odor of alcohol combined with admission of driver that he had been drinking was reasonable basis for police officer to request that driver take field sobriety test. State v. Liebrecht, 120 Or App 617, 853 P2d 1322 (1993), Sup Ct review denied

 

      Reliability of informant information is not established solely through independent corroboration, but can instead be established by facts showing informant is credible or informant’s information is reliable. State v. Rasheed, 128 Or App 439, 876 P2d 859 (1994), Sup Ct review denied

 

      Officer’s suspicion that person is possibly violating law does not satisfy subjective belief prong of probable cause test. Winroth v. DMV, 140 Or App 622, 915 P2d 991 (1996); State v. Demus, 141 Or App 509, 919 P2d 1182 (1996)

 

      Fact that defendant is under influence of controlled substance combined with presence in high crime area is sufficient probable cause to arrest. State v. Blount, 143 Or App 582, 924 P2d 860 (1996), Sup Ct review denied

 

      Close proximity of opaque, closed container to drug paraphernalia, combined with officer knowledge that container was of type often used to hold illegal drugs, gave probable cause to open container. State v. Poulson, 150 Or App 164, 945 P2d 1084 (1997)

 

      Police officer having arrest warrant must have probable cause to believe person sought is inside residence before entering over coresident’s objection. State v. Jones, 165 Or App 55, 995 P2d 571 (2000), aff’d 332 Or 284, 27 P3d 119 (2001)

 

      Where both objective and subjective probable cause to arrest exist, but police officer’s subjective probable cause is based on unlawful actions, arrest is improper. Ezzell v. DMV, 171 Or App 591, 17 P3d 516 (2000), Sup Ct review denied

 

      Where officer has other valid grounds for opening closed container, development of probable cause to believe criminal evidence is inside container does not require officer to obtain warrant. State v. Nelson, 181 Or App 593, 47 P3d 521 (2002), Sup Ct review denied

 

      Where probable cause rests on collective knowledge of police officers, arresting officer need not receive notice of probable cause directly from officer having knowledge of facts establishing probable cause. State v. Radford, 222 Or App 87, 191 P3d 776 (2008)

 

      Where officer requests person for consent to search item that person controls, person’s reaction to that request is not sufficient to support objectively reasonable belief of criminal activity. State v. Foland, 224 Or App 649, 199 P3d 362 (2008)

 

      Where facts are objectively sufficient to establish cause for arrest, subjective belief of police officer that conduct of officer is reasonably justified is sufficient to establish valid grounds for arrest. State v. Miller, 345 Or 176, 191 P3d 651 (2008)

 

      Proof of officer’s subjective basis for probable cause in context of warrantless searches is required in addition to, and not as part of, proof of officer’s objective basis for probable cause. State v. Foster, 233 Or App 135, 225 P3d 830 (2010), aff’d350 Or 161, 252 P3d 292 (2011)

 

      For attestation regarding training and experience to support probable cause, it must (1) connect a defendant’s particular conduct or circumstances with specific evidence that police seek; and (2) be supported by objective facts derived from other sources. State v. Daniels, 234 Or App 533, 228 P3d 695 (2010), Sup Ct review denied

 

      Alert by properly trained and reliable drug-detection dog can provide, depending on totality of circumstances, probable cause to search. State v. Foster, 350 Or 161, 252 P3d 292 (2011)

 

      To determine whether passage of time precludes probable cause, appellate courts have considered: (1) length of time; (2) perishability of putative evidence; (3) mobility of putative evidence; (4) nonexplicitly inculpatory character of putative evidence; and (5) propensity of suspect or general class of offenders to which suspect belongs to maintain and retain possession of putative evidence. State v. Ulizzi, 246 Or App 430, 266 P3d 139 (2011), Sup Ct review denied

 

      Where officer based warrantless entry on officer’s observations of open cans of beer inside residence and statements made by juveniles outside residence that defendant was hosting party did not establish probable cause that alcohol had been furnished to minors to support officer’s warrantless search of defendant’s home. State v. McHenry, 272 Or App 148, 354 P3d 750 (2015)

 

      Plain view

 

      Observation in plain view of easily disposable substances in possession of defendant constitutes exigent circumstances justifying warrantless entry and seizure of contraband. State v. White, 18 Or App 352, 525 P2d 188 (1974)

 

      Upon arrest of defendant pursuant to warrant charging burglary, police had probable cause to seize property located in plain view in defendant’s automobile that appeared to have been stolen. State v. Brewton, 19 Or App 899, 529 P2d 967 (1974), Sup Ct review denied

 

      This section was not violated when police seized illegal gambling device without warrant because device was in plain view of police who had right to be in position to have view. State v. Wright, 21 Or App 659, 537 P2d 130 (1975)

 

      Physical evidence seized after defendant had been removed from scene of killing was admissible where police officers were properly at scene and items were in plain view. State v. Corbin, 22 Or App 505, 539 P2d 1113 (1975)

 

      Flying at 1,000 feet to look for marijuana on defendants’ farm did not constitute warrantless search in violation of this section. State v. Farkes, 71 Or App 155, 691 P2d 489 (1984), Sup Ct review denied; State v. Davis, 51 Or App 827, 627 P2d 492, Sup Ct review denied

 

      Where police officer used flashlight to examine outside of container and saw no more than was visible under normal indoor lighting, search was lawful. State v. Bechtold, 99 Or App 593, 783 P2d 1008 (1989), Sup Ct review denied

 

      Use of flashlight to observe vial of cocaine on seat of defendant’s truck is not search where officer was properly on premises for purpose of conducting investigation, vial was otherwise in plain view and officer was merely admiring truck’s interior. State v. Faulkner, 102 Or App 417, 794 P2d 821 (1990), Sup Ct review denied

 

      Warrantless seizure of stolen items defendant had displayed for sale at antique mall was not unlawful under plain view doctrine even though discovery of evidence was not inadvertent. State v. Peterson, 114 Or App 126, 834 P2d 488 (1992)

 

      Where passersby as well as police could see illegal drug activities occurring in lighted car parked in tavern parking lot, no protected privacy interest was invaded and no search occurred. State v. Wacker, 317 Or 419, 856 P2d 1029 (1993)

 

      Use of technological enhancement to aid observation is not determinative of whether search has occurred. State v. Reed, 169 Or App 456, 9 P3d 738 (2000)

 

      Where defendant’s measures to protect privacy were sufficiently flawed that police officer could observe unlawful activities from lawful vantage point without special effort, observation by police officer was not search. State v. Rodriguez-Ganegar, 186 Or App 530, 63 P3d 1225 (2003), Sup Ct review denied

 

      Where warrant authorizes search but does not authorize seizure, lawfulness of seizure of items found during search may be analyzed with reference to plain view exception. State v. Carter, 200 Or App 262, 113 P3d 969 (2005), aff’d 342 Or 39, 147 P3d 1151 (2006)

 

      Because defendant’s temporary erected structure violated city code prohibition against temporary structures on public right-of-way and police had authorization under city code to remove structure, no protected privacy interest was violated when officer lifted up tarp of structure and observed defendant engaged in illegal drug activity. State v. Tegland, 269 Or App 1, 344 P3d 63 (2015)

 

      Search incident to arrest

 

      Where defendant was arrested and placed in car and police reentered home to obtain revolver seen in defendant’s hand, seizure was proper as incident to arrest. State v. Evans, 10 Or App 602, 500 P2d 470 (1972), Sup Ct review denied

 

      Police officer taking alleged offender into custody and in preparing to transport arrestee to jail may search person of arrestee. State v. Swartsfager, 11 Or App 69, 501 P2d 1321 (1972)

 

      Lifting of purse flap to make cursory inspection of contents is equivalent of frisk. State v. Ward, 16 Or App 556, 519 P2d 1269 (1974), Sup Ct review denied

 

      Evidence obtained by search of defendant’s person is reasonably obtained and will not be suppressed when evidence of crime charged is readily concealable. State v. Holmes, 17 Or App 464, 522 P2d 900 (1974)

 

      Seizure of evidence is incident to arrest when arrest and search leading to seizure of evidence is all part of continuous transaction. State v. Morris, 18 Or App 306, 525 P2d 201 (1974), Sup Ct review denied

 

      Where officer conducts lawful search incident to arrest, officer may seize contraband evidence of crime other than crime for which person was arrested. State v. Florance, 270 Or 169, 527 P2d 1202 (1974); State v. Owens, 302 Or 196, 729 P2d 524 (1986)

 

      Where testimony of arresting officer revealed he had sufficient reasons to arrest defendant for minor traffic offense rather than cite him, it was legitimate and not pretext arrest and officer could properly seize contraband evidence of other crimes in search incident to arrest. State v. Huss, 23 Or App 118, 541 P2d 498 (1975)

 

      Police, without warrant, could search closed container seized from person during booking process at place of detention as incident to lawful arrest. State v. Brown, 291 Or 642, 634 P2d 212 (1981)

 

      Searches incident to valid custodial arrest must be justified as necessary to protect arresting officer, or to prevent destruction of evidence, or as relevant to the crime for which defendant is being arrested or as reasonable in terms of time and place based on entire factual situation. State v. Caraher, 293 Or 741, 653 P2d 787 (1982); State v. Mituniewicz, 125 Or App 41, 864 P2d 1359 (1993)

 

      Full search of passenger compartment of vehicle and closed containers in it is not reasonable as incident to DUII arrest even where officer discovers small amounts of intoxicants. State v. Brody, 69 Or App 469, 686 P2d 451 (1984)

 

      Where officers had probable cause to believe that defendant’s van would contain controlled substances and therefore had authority to arrest defendant, search of briefcase in course of full search of van for contraband was permissible as incident to lawful arrest. State v. Gordon, 71 Or App 321, 692 P2d 618 (1984), Sup Ct review denied

 

      Warrantless search of defendant’s vehicle for identification violated this section because it was not permissible incident to his arrest for driving while suspended. State v. Smith, 82 Or App 636, 729 P2d 10 (1986), Sup Ct review denied

 

      Search incident to arrest may include search of item in immediate possession of defendant if item is capable of containing evidence of crime for which defendant was arrested. State v. Owens, 302 Or 196, 729 P2d 524 (1986)

 

      Search incident to arrest is exception to warrant requirement when conducted to protect officer, preserve evidence or when related to crime for which arrest was made and reasonable in time, scope and manner, which may include evidence found during course of one arrest which supports probable cause to arrest for second crime. State v. Askay, 96 Or App 563, 773 P2d 785 (1989), Sup Ct review denied

 

      Officers did not violate this section by opening trunk and taking firearm from it after arrest of defendant where officers knew from witnesses that defendant had just put gun in trunk, so search was proper incident to arrest. State v. Hartley, 96 Or App 722, 773 P2d 1356 (1989), Sup Ct review denied

 

      Where defendant was not in possession of seized evidence immediately before arrest, police did not separate defendant from evidence by arrest and evidence was beyond defendant’s immediate control in parked car some 100 feet from arrest, seizure could not be upheld as incident to defendant’s arrest. State v. Giffen, 98 Or App 332, 778 P2d 1001 (1989)

 

      Where officer was authorized only to search defendant’s pockets for written order excluding defendant from city park where he was arrested for criminal trespass, search did not permit seizure from defendant’s pocket of piece of paper that proved to be blotter of LSD in absence of any evidence that physical characteristics of blotter could lead officer to conclude paper might be exclusion order. State v. Baker, 100 Or App 31, 784 P2d 446 (1989); State v. Boyd, 101 Or App 649, 792 P2d 462 (1990)

 

      Search incident to arrest for driving while suspended can justify removal of container from defendant’s pocket, but without suggestion that container contains evidence of crime for which defendant was arrested, opening container and inspecting contents is unlawful. State v. Jones, 103 Or App 316, 797 P2d 385 (1990); State v. Mituniewicz, 125 Or App 41, 864 P2d 1359 (1993)

 

      Officer was not justified in searching defendant’s wallet on basis that it might contain razor blades. State v. Roque-Escamilla, 106 Or App 270, 806 P2d 1173 (1991), Sup Ct review denied

 

      Officer was entitled to search wallet within purse incident to arrest for carrying concealed weapon with intent to use it unlawfully. State v. Rose, 109 Or App 378, 819 P2d 757 (1991)

 

      Opening small opaque container was lawful as search incident to arrest when officer had probable cause to arrest defendant for driving under influence of intoxicants and officer reasonably believed container held controlled substance that would be evidence of offense. State v. Gotham, 109 Or App 646, 820 P2d 884 (1991), Sup Ct review denied

 

      Officer could not justify search of defendant’s jacket pockets as search incident to arrest for probation violations because defendant could not conceal evidence of crime for which officers arrested defendant. State v. Cook, 114 Or App 571, 836 P2d 160 (1992)

 

      When officer did not arrest defendant on day that officer conducted search of motor vehicle, officer could not justify search of motor vehicle as search incident to arrest because search was “too remote in time and space.” State v. Warner, 117 Or App 420, 844 P2d 272 (1992)

 

      Search that preceded formal arrest by few moments constituted search incident to arrest because officer had probable cause for search and search was related to reason for arrest. State v. Anfield, 313 Or 554, 836 P2d 1337 (1992); State v. Nevel, 126 Or App 270, 868 P2d 1338 (1994)

 

      Where glove box was size that could hold can or bottle, opening glove box was reasonable as incident to arrest for DUII, and methamphetamine found there was admissible. State v. Augard, 122 Or App 485, 858 P2d 463 (1993)

 

      Evidence discovered during search was inadmissible where purpose of search was not to protect officer, obtain evidence relevant to crime prompting arrest or prevent destruction of evidence. State v. Martin, 124 Or App 459, 863 P2d 1276 (1993)

 

      Where officer had reasonable concern about safety, pat-down search was not required as prerequisite to more intrusive search made incident to arrest. State v. Jackson, 127 Or App 170, 871 P2d 1019 (1994), Sup Ct review denied

 

      Search based on theoretical possibility that weapon of some type might be present did not constitute reasonable suspicion that defendant posed threat of serious physical harm or threat of escape. State v. Hoskinson, 320 Or 83, 879 P2d 180 (1994)

 

      Concern for officer safety does not provide basis to search weapon after removal from defendant’s possession. State v. Dickerson, 135 Or App 192, 898 P2d 193 (1995)

 

      Where defendant did not exhibit suspicious behavior toward container, common practice of using similar containers for transport of contraband did not give probable cause to open container. State v. Lane, 135 Or App 233, 898 P2d 1358 (1995), Sup Ct review denied

 

      Where officer had probable cause to arrest, search was incident to arrest even though defendant was never arrested for crime creating probable cause. State v. Holliday, 135 Or App 256, 898 P2d 812 (1995), Sup Ct review denied

 

      Where officer arrests individual for one crime but also has probable cause to arrest for other crime, reasonable search for evidence of other crime is permissible. State v. Lander, 137 Or App 222, 903 P2d 903 (1995), Sup Ct review denied

 

      Where illegal arrest resulted in discovery of outstanding warrant, discovery of warrant purged taint from evidence obtained in search incident to illegal arrest. State v. Angerbauer, 140 Or App 77, 914 P2d 12 (1996)

 

      Where arrest of person under supervision of Department of Corrections is based on reasonable suspicion that person has violated terms of release, arrest cannot support search incident to arrest. State v. Meier, 145 Or App 179, 929 P2d 1052 (1996)

 

      Officer may not pat down belongings of handcuffed arrestee where belongings are not immediately accessible to arrestee or on arrestee’s person. State ex rel Juv. Dept. v. Singh, 151 Or App 223, 949 P2d 303 (1997)

 

      Where search incident to arrest is reasonable in time, scope and intensity, search of particular place or opening of particular container does not require probable cause. State v. Burgholzer, 185 Or App 254, 59 P3d 582 (2002)

 

      Search incident to arrest is unreasonable with regard to place if search extends to objects that were not in person’s immediate possession at time of arrest. State v. Newport, 204 Or App 489, 130 P3d 792 (2006)

 

      Where defendant is unlawfully arrested, discovery of outstanding arrest warrant prior to search attenuates taint of unlawful arrest for purpose of validating search. State v. Allen, 222 Or App 71, 191 P3d 762 (2008), Sup Ct review denied

 

      Where vehicle in which defendant was riding was stopped for traffic offense and driver admitted to having recently used intoxicants, officer’s search of vehicle, including vehicle’s locked center console where defendant’s weapon was located, was search incident to arrest because center console was in immediate control of defendant before arrest and reasonably could conceal evidence of crime for which arrest was made. State v. Washington, 265 Or App 532, 335 P3d 877 (2014)

 

      Offenses in officer’s presence

 

      Police officer detecting odor of marijuana during valid check of operator’s license had probable cause to believe crime was being committed, and was justified in examination of smoking cardboard box on back seat. State v. Smith, 10 Or App 557, 500 P2d 1217 (1972)

 

      Where officer makes stop when he witnesses commission of traffic infraction, even if he has more than one reason for making stop, officer doing proper police work in place he has right to be does not violate this section. State v. Olaiz, 100 Or App 380, 786 P2d 734 (1990), Sup Ct review denied; State v. Zigler, 100 Or App 700, 788 P2d 484 (1990); State v. Woods, 134 Or App 53, 894 P2d 511 (1995), Sup Ct review denied

 

      Automobile search or seizure

 

      Right to search automobile and validity of seizure of evidence found therein are dependent on reasonable cause seizing officer has for belief that contents of automobile offend against law. State v. Emfinger, 6 Or App 328, 487 P2d 1393 (1971)

 

      When police officer had seized marijuana cigarette from automobile passenger and visually inspected cigarette’s contents, there was probable cause to search automobile. State v. Krohn, 15 Or App 63, 514 P2d 1359 (1973), Sup Ct review denied

 

      When arrest and search is made without warrant, probable cause may be established by evidence of facts and circumstances preceding arrest that are sufficient in themselves to warrant man of reasonable caution in belief that offense has been or is being committed in his presence. State v. Hirsch, 267 Or 613, 503 P2d 726, 518 P2d 649 (1974)

 

      Search incident to arrest is authorized to enable enforcement officers to gather fruits of crime, implements thereof, and to prevent destruction of evidence and this is particularly true of incidents involving searches of automobiles involved in furtherance of crime. State v. Hirsch, 267 Or 613, 503 P2d 726, 518 P2d 649 (1974)

 

      Evidence seized subsequent to stop of automobile for sole purpose of checking driver’s operator’s license and vehicle was suppressed where no facts were perceived by officer from which he might have objectively concluded that there was reasonable basis for him to stop vehicle. State v. Johnson, Wesson, 26 Or App 599, 554 P2d 194 (1976)

 

      Search of defendant’s automobile by Canadian authorities at direction of Portland police was based on probable cause and was not violative of constitutional provisions prohibiting unreasonable searches and seizures. State v. LeMay, 27 Or App 447, 556 P2d 688 (1976)

 

      Where police encountered closed container (camera case) in course of warrantless search of vehicle, they could open and search it only after obtaining warrant. State v. DeLong, 43 Or App 183, 602 P2d 665 (1979), Sup Ct review denied

 

      There is no “automobile exception” under Oregon Constitution; when there is no likelihood that vehicle will be driven away or evidence removed before warrant can be obtained, there is no exigency, and probable cause alone will not support warrantless search. State v. Kirsch, 69 Or App 418, 686 P2d 446 (1984), Sup Ct review denied

 

      Where defendant, driving car matching description of one associated with burglary, was stopped near scene of burglary that had occurred several days before and police noticed marijuana in plain view and searched interior of car and trunk where gun case was observed with burglary victim’s name on it, police had reasonable suspicion to stop defendant and, though search of trunk violated Oregon Constitution, evidence was nonetheless admissible under state and federal inevitable discovery rules. State v. Martin, 71 Or App 1, 691 P2d 154 (1984)

 

      Where officer’s actions, walking around vehicle and looking through windows to observe that which can be plainly seen, were not based on excuse to begin searching or investigating for contraband or other crime evidence unrelated to traffic reason for stop, they did not violate this section. State v. Jackson, 296 Or 430, 677 P2d 21 (1984); State v. Kemp/Haworth, 112 Or App 522, 831 P2d 37 (1992), Sup Ct review denied

 

      Once defendant and car are in police custody and removed from place of arrest, logical stopping point for search incident to arrest is reached and warrantless search of car trunk was unlawful where there was no independent necessity. State v. Waggoner, 73 Or App 325, 698 P2d 525 (1985)

 

      Warrantless search of female passenger’s purse, for gun used by male passenger or driver to menace another, was valid under “automobile exception” to warrant requirement of this section. State v. Fix, 83 Or App 107, 730 P2d 601 (1986)

 

      No warrant was required for search of trunk of lawfully stopped automobile when officers who arrested driver had probable cause to believe that trunk contained relevant evidence of crime for which the arrest could have been made. State v. Brown, 301 Or 268, 721 P2d 1357 (1986); State v. Zigler, 100 Or App 700, 788 P2d 484 (1990)

 

      Where police stopped automobile matching reliable informant’s description of particular automobile containing marijuana, smelled marijuana and seized marijuana from trunk without warrant, searches of passenger compartment and trunk were valid warrantless searches. State v. Bennett, 301 Or 299, 721 P2d 1375 (1986)

 

      Search of any automobile that was parked, immobile and unoccupied at time police first encountered it in connection with investigation of crime must be authorized by warrant or, alternatively, prosecution must demonstrate that exigent circumstances other than potential mobility of automobile exists. State v. Kock, 302 Or 29, 725 P2d 1285 (1986)

 

      Use of tracking device to technologically enhance police ability to track defendant’s automobile was seizure because private property was converted into tool of state. State v. Campbell, 87 Or App 415, 742 P2d 683 (1987), aff’d on other grounds, 306 Or 157, 759 P2d 1040 (1988)

 

      Warrantless search of unattended car was not lawful where no exigent circumstances justified proceeding without warrant and where car was not abandoned. State v. Crook, 93 Or App 509, 762 P2d 1062 (1988)

 

      Apparent violation of ordinance prohibiting leaving keys in parked car does not create exigent circumstances contemplated by exception to warrant requirement. State v. Crook, 93 Or App 509, 762 P2d 1062 (1988)

 

      Under automobile exception to warrant requirement, shared knowledge of officers conducting joint surveillance of defendant gave them probable cause to stop and search for evidence of crime of theft and officers were entitled to seek aid of uniformed officers in making stop. State v. Seibold, 96 Or App 571, 773 P2d 789 (1989)

 

      Where police stopped automobile following high speed chase and defendant’s conduct provided objective, articulable factor that gave rise to reasonable suspicion defendant was armed and dangerous, officer’s moving coat to reveal weapon was justified and search was reasonable. State v. Starkweather, 98 Or App 7, 777 P2d 418 (1989)

 

      Where defendant had already been arrested and keys to vehicle seized when search of parked vehicle occurred, mobile automobile exception was not applicable because parked, immobile and unoccupied car cannot be searched under that exception absent other exigent circumstances. State v. Giffen, 98 Or App 332, 778 P2d 1001 (1989)

 

      Where state failed to prove that search of automobile occurred before evaporation of suspicion of intoxication that justified stop of vehicle, evidence seized as result of search should have been suppressed. State v. Johnson, 106 Or App 371, 808 P2d 718 (1991)

 

      Motor vehicle exception to warrant requirement applied where officer who had probable cause to believe defendant illegally possessed deer encountered defendant as he pulled his pickup into parking space in apartment complex. State v. Jorgenson, 109 Or App 331, 819 P2d 742 (1991)

 

      After defendant voluntarily revealed two separate containers of marijuana totaling less than one ounce, officers had probable cause to believe other marijuana would be found elsewhere in vehicle and subsequent search fell within automobile exception to requirement of search warrant. State v. Cromwell, 109 Or App 654, 820 P2d 888 (1991)

 

      Even though truck was not in motion when encountered by police, it was occupied and mobile in sense that it could be driven away at any time, so search under automobile exception to warrant requirement was proper. State v. Cromwell, 109 Or App 654, 820 P2d 888 (1991)

 

      Warrantless search of car and seizure of gun were unreasonable where defendant was already in custody, he did not pose threat to officers or other persons in area and there was no indication gun was somewhere other than in car. State v. Walker, 113 Or App 199, 830 P2d 633 (1992), Sup Ct review denied

 

      Investigation of traffic infraction must be reasonably related to infraction, identification and issuance of citation and where arrest of driver and search of car were product of defendant’s unlawful removal and handcuffing, evidence discovered during search should have been suppressed. State v. Faccio, 114 Or App 112, 834 P2d 485 (1992)

 

      When officer refused to let defendant leave in car, officer seized car. State v. Dowdy, 117 Or App 414, 844 P2d 263 (1992)

 

      When officer observed that defendant could not start motor vehicle, officer could not justify search of motor vehicle under automobile exception. State v. Warner, 117 Or App 420, 844 P2d 272 (1992)

 

      By opening partially open motor vehicle door, officer conducted search. State v. Rhodes, 315 Or 191, 843 P2d 927 (1992)

 

      Because officer had reasonable suspicion that crime had been committed and acted under specific statutory authority, officer could legally open door of vehicle. State v. Rhodes, 315 Or 191, 843 P2d 927 (1992)

 

      Police may conduct warrantless search of vehicle if vehicle was mobile when stopped and magistrate could issue constitutionally sound warrant based on probable cause articulated by officers. State v. Nevel, 126 Or App 270, 868 P2d 1338 (1994)

 

      Presence of suspect in immediate proximity of vehicle is sufficient to meet occupancy element for existence of exigent circumstances. State v. Burr, 136 Or App 140, 901 P2d 873 (1995), Sup Ct review denied

 

      Contraband on person of passenger who does not evidence ownership or control of vehicle does not, by itself, create probable cause to search vehicle for other contraband. State v. Herrin, 323 Or 188, 915 P2d 953 (1996)

 

      Where defendant gave consent to search vehicle and did not limit scope of search, opening of closed container within vehicle was permissible. State v. Charlesworth/Parks, 151 Or App 100, 951 P2d 153 (1997), Sup Ct review denied

 

      Where unlawful expansion of traffic stop does not impair free will of motorist, search resulting from expansion does not automatically constitute unlawful search and seizure. State v. $113,871 in U.S. Currency, 152 Or App 770, 954 P2d 218 (1998), Sup Ct review denied

 

      Applicability of automobile exception turns on mobility of automobile at time police first focus attention on it. State v. Coleman, 167 Or App 86, 2 P3d 399 (2000)

 

      Any stop of vehicle short of actual impoundment in accordance with established police impoundment procedure is insufficient to extinguish automobile exception. State v. Getzelman, 178 Or App 591, 39 P3d 195 (2002), Sup Ct review denied; State v. Forrister, 179 Or App 516, 40 P3d 571 (2002)

 

      Search of vehicle recently abandoned by driver who had eluded active police pursuit was valid under automobile exception because vehicle was mobile at time police first commanded driver to stop. State v. Snow, 179 Or App 222, 39 P3d 909 (2002), aff’d on other grounds, 337 Or 219, 94 P3d 872 (2004)

 

      Whether vehicle is mobile is determined by whether vehicle will be capable of motion after officer relinquishes control, not by whether vehicle is in motion at time stop is effectuated. State v. Meharry, 342 Or 173, 149 P3d 1155 (2006)

 

      Vehicle is not rendered immobile when officer breaks contact with vehicle after stopping vehicle. State v. Wiggins, 245 Or App 119, 260 P3d 826 (2011), modified 247 Or App 490, 270 P3d 306 (2011), Sup Ct review denied

 

      Operability of vehicle is not determining factor of whether vehicle is mobile. State v. Kurokawa-Lasciak, 351 Or 179, 263 P3d 336 (2011)

 

      Scope of officer’s search under automobile exception is reasonable if officer could obtain warrant on basis of evidence related to offense for which officer has probable cause to believe occurred. State v. Tovar, 256 Or App 1, 299 P3d 580 (2013), Sup Ct review denied

 

      Because defendant’s jeep was parked in store parking lot when police first encountered it in connection with crime but police did not stop jeep, jeep was not subject to being searched under “automobile exception” to warrant requirement of this section. State v. Andersen, 269 Or App 705, 346 P3d 1224 (2015), Sup Ctreview allowed

 

      Where officers encountered defendant’s vehicle in connection with welfare check, and only later, after vehicle was parked and defendant walked away from vehicle, did officers begin to investigate crime, “automobile exception” did not obviate need for warrant because exception applies only to vehicle that is mobile when encountered in connection with crime. State v. Belander, 274 Or App 167, 360 P3d 580 (2015)

 

      Investigatory stop

 

      “Reasonable suspicion” of connection with criminal activity justifies investigatory stop. State v. Head, 13 Or App 317, 509 P2d 52 (1973), Sup Ct review denied

 

      Evidence seized subsequent to stop of automobile for sole purpose of checking driver’s operator’s license and vehicle was suppressed where no facts were perceived by officer from which he might have objectively concluded that there was reasonable basis for him to stop vehicle. State v. Johnson, Wesson, 26 Or App 599, 554 P2d 194 (1976)

 

      Where display of wad of money at tavern had been explained to officer’s satisfaction, his “asking” defendant to return to tavern and put identification on table was unconstitutional seizure, and evidence obtained as result of stop was suppressed. State v. Warner, 284 Or 147, 585 P2d 681 (1978)

 

      Stopping of motorists at checkpoint in rural hunting area on first day of hunting season for brief questioning and visual inspection of their vehicles did not violate this section. State v. Tourtillott, 289 Or 845, 618 P2d 423 (1980)

 

      Society’s interest in well-being of its youth was sufficiently substantial to justify minimal intrusion of defendant’s rights under this section for purposes of determining possible violation of curfew statute ([former] ORS 419.710). State v. Morris, 56 Or App 97, 641 P2d 77 (1982), Sup Ct review denied

 

      Operator’s license and vehicle registration inspection conducted by state police officers, which used procedure in which first passing vehicle was stopped and then all other vehicles were permitted to pass until inspection was completed after which very next vehicle passing was stopped, procedure continuing until inspection was completed, was not unreasonable under this section. State v. Shankle, 58 Or App 134, 647 P2d 959 (1982)

 

      Where male member of group had offered to sell drugs to third party while separated from group, officer did not have reasonable suspicion to believe female defendant had committed crime simply because she was part of group. State v. Manss, 99 Or App 498, 783 P2d 24 (1989)

 

      At time officer requested defendant to sit in patrol car after defendant admitted he had no identification and defendant consented to search of his vehicle, officer had reasonable suspicion that defendant had failed to carry license while operating vehicle. State v. Jensen, 102 Or App 323, 794 P2d 448 (1990)

 

      Where officer told defendant that defendant was free to go and then asked for consent to search automobile, officer’s request for consent to search did not constitute stop. State v. Bonham, 120 Or App 371, 852 P2d 905 (1993), Sup Ct review denied

 

      Police request for identification solely to run background check does not constitute seizure of person because objectively reasonable person would not view request as significant restriction on person’s liberty. State v. Underhill, 120 Or App 584, 853 P2d 847 (1993), Sup Ct review denied; State v. Gilmore, 123 Or App 594, 860 P2d 882 (1993), Sup Ct review denied

 

      Encounter becomes stop when restraint or interference with citizen freedom of movement is significantly out of ordinary. State v. Blair/Vanis, 171 Or App 162, 14 P3d 660 (2000), Sup Ct review denied

 

      Officer is not required to have reasonable suspicion for questions to ensure officer safety unless questioning rises to level of search or seizure. State v. Amaya, 176 Or App 35, 29 P3d 1177 (2001), aff’d 336 Or 616, 89 P3d 1163 (2004); State v. Crampton, 176 Or App 62, 31 P3d 430 (2001)

 

      Where police officer making stop for traffic violation has all information necessary to issue person citation, delaying issuance of citation in order to engage in additional questioning without reasonable suspicion of criminal activity is unlawful seizure of person. State v. Rodgers, 219 Or App 366, 182 P3d 209 (2008), aff’d State v. Rodgers/Kirkeby, 347 Or 610, 227 P3d 695 (2010); State v. Foland, 224 Or App 649, 199 P3d 362 (2008); State v. Primeaux, 230 Or App 470, 216 P3d 887 (2009), Sup Ct review denied

 

      Where officer accuses individual of having committed crime, encounter is investigatory stop. State v. Allen, 224 Or App 524, 198 P3d 466 (2008)

 

      Officer’s knowledge that person engaged in past criminal activity is not sufficient to support objectively reasonable belief that person is engaged in current criminal activity. State v. Frias, 229 Or App 60, 210 P3d 914 (2009)

 

      During lawful stop, officer may ask question about matter unrelated to basis of stop without having independent reasonable suspicion that subject matter of questioning occurred. State v. Amador, 230 Or App 1, 213 P3d 846 (2009), Sup Ct review denied

 

      Where police officer conducts more intrusive search than exterior patting down of suspect, officer must have either probable cause to believe that defendant possesses weapon or evidence of crime or some other justification for search that is greater than reasonable suspicion of threat to officer safety. State v. Rudder, 347 Or 14, 217 P3d 1064 (2009)

 

      Where police officer stops person for committing noncriminal traffic violation, police inquiries made during unavoidable lull in stop do not need to be justified by independent reasonable suspicion. State v. Hall, 238 Or App 75, 241 P3d 757 (2010), Sup Ct review denied

 

      Statutory authority exists for police officer to stop probationer where police officer has reasonable suspicion that probationer violated probation condition. State v. Hiner, 240 Or App 175, 246 P3d 35 (2010)

 

      Where police officer stops person for committing noncriminal traffic violation, officer seizes person if (1) detention of person exceeds scope of stop; and (2) conduct is not reasonably related to investigation of violation. State v. Rodgers/Kirkeby, 347 Or 610, 227 P3d 695 (2010)

 

      Unlawful extension of stop, alone, does not constitute seizure. State v. Ross, 256 Or App 746, 304 P3d 759 (2013)

 

      Officer was in violation of this provision when officer questioned defendant about presence of weapons during traffic investigation stop and officer lacked circumstance-specific concerns for officer’s safety or for safety of members of public. State v. Jimenez, 357 Or 417, 353 P3d 1227 (2015); State v. Miller, 277 Or App 147, 370 P3d 882 (2016)

 

      Waiver or consent

 

      Warrantless search and seizure of drugs was valid where search was conducted on basis of wife’s consent and defendant had no reasonable expectation of privacy as to areas searched, even though medical kit searched was defendant’s exclusive property over which wife exercised no control. State v. Middaugh, 12 Or App 589, 507 P2d 42 (1973), Sup Ct review denied

 

      Entry and search of defendant’s motel room based on consent of motel owner was valid since defendant, who was renting room on day-to-day basis and was two days in arrears, had no objectively reasonable expectation of privacy in that room. State v. Taggart, 14 Or App 408, 512 P2d 1359 (1973), Sup Ct review denied

 

      Warrantless search was invalid where carried out upon consent of defendant’s landlord’s daughter, who did not share “common” dominion over room. State v. Fitzgerald, 19 Or App 860, 530 P2d 553 (1974)

 

      Consent obtained by exploitation of illegal search is invalid. State v. Selmer, 26 Or App 555, 553 P2d 1069 (1976), Sup Ct review denied; State v. Hall, 339 Or 7, 115 P3d 908 (2005)

 

      Threat to obtain search warrant is not coercion invalidating consent. State v. Roy, 28 Or App 861, 562 P2d 213 (1977)

 

      Once criminal suspect has received Miranda warning, no further proof is required that criminal suspect was aware of right to refuse consent at time he gave consent to search. State v. Flores, 280 Or 273, 570 P2d 965 (1977)

 

      Where defendant’s wife and coinhabitant of house gave police permission to go to house and retrieve items she believed to be stolen property, her off-premises consent was effective and items seized were admissible at trial of defendant for first degree theft. State v. Frame, 45 Or App 723, 609 P2d 830 (1980), Sup Ct review denied

 

      Where probation condition required that defendant allow random warrantless searches, condition provided grounds for probation revocation if defendant refused, but did not constitute prospective consent to searches. State v. Wagner, 46 Or App 9, 610 P2d 301 (1980); State v. Hindman, 125 Or App 434, 866 P2d 481 (1993)

 

      When defendant invited police to search luggage without prior request from police to do so, and circumstances indicated there was no express or implied coercion, defendant’s consent to search was voluntary and evidence discovered during search should not have been suppressed despite fact that police may have illegally stopped defendant prior to time consent was given. State v. Kennedy, 290 Or 493, 624 P2d 99 (1981)

 

      Where there was no evidence that defendant’s consent to search of his person was obtained by illegal or coercive police conduct and defendant gave consent to officer for search in front of two or three people on street who gathered to watch, consent was voluntary and broad enough in scope under Oregon Constitution to justify search. State v. Gaither, 76 Or App 201, 708 P2d 646 (1985)

 

      Under both this section and Fourth Amendment to United States Constitution, age is merely one factor to be considered in determining: (1) scope of minor’s authority to give third-party consent to search; and (2) whether minor’s consent was knowing and voluntary. State v. Scott, 82 Or App 645, 729 P2d 585 (1986)

 

      Lessor is not authorized to consent to search merely because he is empowered under law to enter for purposes of viewing waste. State v. Pearson, 83 Or App 624, 732 P2d 937 (1987)

 

      In determining whether consent is voluntary, court considers whether totality of circumstances created coercive atmosphere, including temporal proximity between unlawful police conduct and defandant’s consent and presence of intervening circumstances. State v. Glenn, 83 Or App 650, 732 P2d 946 (1987)

 

      Landlord does not have authority to give consent to search of defendant’s effects when only authority granted to him is request to store those effects. State v. Britten, 89 Or App 374, 749 P2d 1193 (1988), Sup Ct review denied

 

      No justification is required before police officer may request consent to search. State v. Auer, 90 Or App 459, 752 P2d 1250 (1988); State v. Mesa, 110 Or App 261, 822 P2d 143 (1991), Sup Ct review denied

 

      One to whom bag was entrusted by another had authority to voluntarily produce it in response to police request, but had no authority to consent to search of bag. State v. Lynch, 94 Or App 168, 764 P2d 957 (1988)

 

      Where only evidence of common authority presented at trial was officer’s statement that woman consenting to search said she lived in apartment, city did not carry its burden to show third-party consent as exception to warrant requirement. City of Portland v. Paulson, 98 Or App 328, 779 P2d 188 (1989)

 

      Search is not legitimized by consent obtained under pressure of police action that became available to police only by virtue of prior unauthorized act. State v. Williamson, 307 Or 621, 772 P2d 404 (1989); State v. Freund, 102 Or App 647, 796 P2d 656 (1990)

 

      Even if officers committed illegal stop by walking three feet into defendant’s garage to question him, subsequent consent to search house was given by free will and was not result of coercion, express or implied. State v. Land, 106 Or App 131, 806 P2d 1156 (1991)

 

      Consent to search was voluntary and not result of coercion when defendant anticipated police contact but did not take any measures to dispose of contraband in his possession and then willingly turned over contraband to police. State v. Widerstrom, 109 Or App 18, 818 P2d 934 (1991), Sup Ct review denied

 

      Where police stopped defendant’s wife in parking lot for suspicion of drug activity and she consented to search of her and defendant’s house, only wife’s consent was necessary for warrantless house search and trial court properly denied motion to suppress evidence incriminating defendant discovered and seized during search. State v. Schmitt, 110 Or App 374, 822 P2d 159 (1991)

 

      Where officer turned off overhead lights, returned identification to defendant and told defendant that defendant was free to go, then asked for and received permission to search automobile, defendant voluntarily consented to search. State v. Allen, 112 Or App 70, 826 P2d 127 (1992), Sup Ct review denied; State v. Bonham, 120 Or App 371, 852 P2d 905 (1993), Sup Ct review denied; State v. Lillie, 124 Or App 49, 860 P2d 895 (1993); State v. Lathrop, 125 Or App 544, 865 P2d 502 (1993), Sup Ct review denied

 

      Constitution requires state to prove consent to search by preponderance of evidence, not clear and convincing evidence. State v. Schaffer, 114 Or App 328, 835 P2d 134 (1992)

 

      Person who answered door of residence of defendant and said he was watching residence while defendant was in jail had authority to consent to search of defendant’s residence. State v. Arnold, 115 Or App 258, 838 P2d 74 (1992), Sup Ct review denied

 

      When checkout time at motel had passed and defendant had not notified motel of plans to stay another night, maid of motel had common authority over room. State v. Dowdy, 117 Or App 414, 844 P2d 263 (1992)

 

      Where, after defendants called 9-1-1 for emergency assistance at their apartment, police officers arrived and entered with emergency personnel and saw evidence of crime in plain view, if there was consent to entry, officers’ observations were permissible and warrant issued based on those observations was valid. State v. Paulson, 313 Or 346, 833 P2d 1278 (1992)

 

      Where defendant was informed wife had consented to search of jointly owned automobile, failure of defendant to object did not constitute consent. State v. Meyer, 120 Or App 319, 852 P2d 879 (1993)

 

      Evidence of coercive actions does not raise state’s burden of proof to show voluntary consent, but weighs against finding voluntariness. State v. Meyer, 120 Or App 319, 852 P2d 879 (1993)

 

      Consent subsequent to inception of search and seizure does not relate back to validate actions occurring prior to time consent was given. State v. Weaver, 121 Or App 362, 854 P2d 962 (1993), on reconsideration 124 Or App 615, 863 P2d 1273 (1993), aff’d 319 Or 212, 874 P2d 1322 (1994)

 

      Where police remained in tavern after arrest of two drug dealers but were not blocking exits, fact that all other patrons consented to be searched did not demonstrate that police had created atmosphere of coercion, therefore defendant’s consent was voluntary. State v. Sosa-Alvarez, 122 Or App 350, 857 P2d 883 (1993), Sup Ct review denied

 

      Suppression of evidence obtained during search was proper only if police exploited their prior unlawful conduct to obtain defendant’s consent. State v. Rodriguez, 317 Or 27, 854 P2d 399 (1993); State v. Martin, 124 Or App 459, 863 P2d 1276 (1993); State v. Hall, 183 Or App 48, 50 P3d 1258 (2002), aff’d 339 Or 7, 115 P3d 908 (2005)

 

      Fact that defendant was in custody did not, based on consideration of total circumstances, render consent to search involuntary. State v. Bea, 318 Or 220, 864 P2d 854 (1993); State v. White, 130 Or App 289, 881 P2d 169 (1994)

 

      Where two officers present did not draw weapons, did not use or threaten use of force, did not make promises or use other means of coercion, consent to search was voluntary. State v. Jacobus, 318 Or 234, 864 P2d 861 (1993)

 

      Scope of consent to search is determined by objectively reasonable expectation of person giving consent. State v. Arroyo-Sotelo, 131 Or App 290, 884 P2d 901 (1994); State v. Jacobsen, 142 Or App 341, 922 P2d 677 (1996)

 

      Absent specific facts to suggest otherwise, general consent to search vehicle does not authorize officer to search areas of vehicle not designed to be routinely opened. State v. Arroyo-Sotelo, 131 Or App 290, 884 P2d 901 (1994)

 

      Whether minor possesses actual authority required for consent to search of home is question of fact. State v. Will, 131 Or App 498, 885 P2d 715 (1994)

 

      Where scope of consent to blood testing was limited, defendant retained privacy interest in contents of sample, preventing additional testing. State v. Binner, 131 Or App 677, 886 P2d 1056 (1994)

 

      Earlier search may be validated where later consent shows intent to validate. State v. Weaver, 319 Or 212, 874 P2d 1322 (1994)

 

      Probationer’s mere acquiescence to search by probation officer can constitute consent where evidence of undue coercion is absent. State v. Davis, 133 Or App 467, 891 P2d 1373 (1995), Sup Ct review denied

 

      Whether person giving consent was lawfully authorized to live at premises was irrelevant to determining access and control. State v. Lambert, 134 Or App 148, 894 P2d 1189 (1995)

 

      Suspect knowledge or lack of knowledge concerning rights is not solely determinative of whether consent to search was valid. State v. Maddux, 144 Or App 34, 925 P2d 124 (1996)

 

      Valid consent of third party requires that person have actual authority to consent, not apparent authority. State v. Ready, 148 Or App 149, 939 P2d 117 (1997), Sup Ct review denied; State v. Edgell, 153 Or App 108, 956 P2d 988 (1998)

 

      Failure to advise defendant of right to refuse consent or failure to read written consent form does not invalidate consent. State v. Poulson, 150 Or App 164, 945 P2d 1084 (1997)

 

      Where no basis for lawful arrest existed, threat of arrest rendered consent invalid. State v. Cox, 150 Or App 464, 947 P2d 207 (1997)

 

      Where defendant gave consent to search vehicle and did not limit scope of search, opening of closed container within vehicle was permissible. State v. Charlesworth/Parks, 151 Or App 100, 951 P2d 153 (1997), Sup Ct review denied

 

      Where probable cause was not established, threat to detain suspect while obtaining warrant was unlawful seizure that tainted consent to search. State v. Powelson, 154 Or App 266, 961 P2d 869 (1998)

 

      Where person’s access to area is sometimes prevented, ability of person to access area at other times does not create actual authority to consent to search of area. State v. Fuller, 158 Or App 501, 976 P2d 1137 (1999)

 

      Third party cannot retroactively give consent to search property shared with defendant. State v. Larson, 159 Or App 34, 977 P2d 1175 (1999), Sup Ct review denied; State ex rel Juvenile Dept. v. Reeves, 163 Or App 497, 988 P2d 433 (1999)

 

      Where defendant’s actions to dispose of property occurred prior to police contact and did not result from unlawful or coercive police action, actions constituted abandonment of privacy and possessory interests in property. State v. Kauffman, 162 Or App 402, 986 P2d 696 (1999), Sup Ct review denied

 

      For curtilage area other than front door, mere visibility and accessibility of area is not sufficient to establish implied consent to entry. State v. Somfleth, 168 Or App 414, 8 P3d 221 (2000)

 

      Search within scope of consent granted is valid notwithstanding that officer may have motive in addition to motive expressed to obtain consent. State v. Helow, 171 Or App 236, 15 P3d 103 (2000), Sup Ct review denied

 

      Where unlawful conduct provides opportunity, but not motive, to request consent for search, consent does not result from exploitation of unlawful conduct. State v. Lee, 174 Or App 119, 23 P3d 999 (2001), Sup Ct review denied

 

      Where defendant had possessory and privacy interests in items, defendant’s denial of ownership of items did not permit officers to conclude that defendant intended to relinquish all constitutionally protected interests in items. State v. Cook, 332 Or 601, 34 P3d 156 (2001)

 

      Actual authority to consent to search is not required if consent is by person whose privacy interest in area searched or items seized is being asserted. State v. Brown, 183 Or App 434, 52 P3d 1110 (2002)

 

      Where police relied on statements made by defendant during unlawful detention to secure voluntary act by other person, voluntary act could not be used as independent source of information to make resulting evidence admissible against defendant. State v. Ehret, 184 Or App 1, 55 P3d 512 (2002)

 

      Where police exploited violation of other person’s rights to secure voluntary act by defendant, violation of other person’s rights did not justify exclusion of evidence against defendant resulting from voluntary act. State v. Ehret, 184 Or App 14, 55 P3d 518 (2002), Sup Ct review denied

 

      Where no possessory or privacy interest is inferable from circumstances, disclaimer of ownership interest in property may trigger obligation for person to assert alternative protected interest to avoid relinquishment of possessory or privacy interest. State v. Standish, 197 Or App 96, 104 P3d 624 (2005), Sup Ct review denied

 

      After defendant shows minimal factual nexus between consent and unlawful police conduct, evidence obtained after voluntary consent to search is admissible only if state proves consent was independent of, or only tenuously connected to, unlawful police conduct. State v. Hall, 339 Or 7, 115 P3d 908 (2005)

 

      State’s burden to show consent was voluntary does not vary according to lawfulness of circumstances under which consent was obtained. State v. Hall, 339 Or 7, 115 P3d 908 (2005)

 

      Causal connection between unlawful police conduct and defendant’s consent may require suppression of evidence if: 1) police sought consent only as result of knowledge of inculpatory evidence obtained from unlawful police conduct; or 2) regardless of whether defendant’s free will was overcome, unlawful police conduct significantly affected defendant’s decision to consent. State v. Hall, 339 Or 7, 115 P3d 908 (2005)

 

      Where occupant has refused to allow warrantless entry into residence, entry into residence based solely upon consent by co-occupant is unlawful. State v. Weaver, 214 Or App 633, 168 P3d 273 (2007), Sup Ct review denied

 

      Where probationer is subject to probation condition requiring submission to search, whether consent to search is voluntary depends on whether probationer was denied reasonable opportunity to refuse or environment was sufficiently coercive to preclude refusal. State v. Dunlap, 215 Or App 46, 168 P3d 295 (2007)

 

      Where consent to search derives from exploiting violation of right against self-incrimination, consent is invalid. State v. Vondehn, 219 Or App 492, 184 P3d 567 (2008), aff’d 348 Or 462, 236 P3d 691 (2010)

 

      Where defendant establishes factual nexus between consent and unlawful police conduct, state may obtain admission of disputed evidence by showing: 1) police would inevitably have discovered evidence through lawful procedures; 2) police obtained evidence independently of unlawful conduct; or 3) connection between conduct and evidence is too attenuated to justify treating conduct as basis of discovery. State v. Vondehn, 219 Or App 492, 184 P3d 567 (2008), aff’d 348 Or 462, 236 P3d 691 (2010)

 

      Where unlawfully stopped person has reasonable belief that person is not free to leave, giving of Miranda warnings does not act as intervening or mitigating circumstance to validate consent to search. State v. La France, 219 Or App 548, 184 P3d 1169 (2008), Sup Ct review denied

 

      Where defendant takes actions to obscure officer’s view of evidence but fails to expressly object to continuation of search, actions are not sufficient to convey intent to revoke consent to search. State v. Ford, 220 Or App 247, 185 P3d 550 (2008)

 

      Whether giving Miranda warnings following unlawful seizure or entry sufficiently attenuates taint of prior illegal police conduct is to be assessed under totality of circumstances. State v. Ayles, 220 Or App 606, 188 P3d 378 (2008), aff’d 348 Or 622, 237 P3d 805 (2010)

 

      Temporary relinquishment of privacy and possessory interests is sufficient to justify warrantless search or seizure. State v. Brown, 348 Or 293, 232 P3d 962 (2010)

 

      To establish police exploited prior unlawful conduct to obtain defendant’s consent, defendant must identify actual factual link between exploitive act and consent. State v. Ashbaugh, 349 Or 297, 244 P3d 360 (2010)

 

      Holding open trunk in response to law officer’s request to search vehicle constitutes consent to search of vehicle and boxes in vehicle. State v. Pickle, 253 Or App 235, 288 P3d 1039 (2012), Sup Ct review denied

 

      Person does not voluntarily consent to search if person consents to search upon receiving promise of immunity. State v. Marshall, 254 Or App 419, 295 P3d 128 (2013)

      Administrative/inventory searches

 

      Evidence of other crimes is not product of illegal search or seizure when found during search of arrested person’s automobile made for purpose of finding, listing and securing from loss, during arrested person’s detention, property belonging to him. State v. Raiford, 7 Or App 302, 490 P2d 1036 (1971). But see State v. Keller, 265 Or 622, 510 P2d 568 (1973)

 

      Reasonably required warrantless inventory search of automobile following lawful arrest of occupants is reasonable and lawful as to evidence of crime that comes into “plain view” of inventorying officer, whether or not evidence is related to crime for which arrest has been made. State v. Keller, 265 Or 622, 510 P2d 568 (1973)

 

      Opening and searching closed container during reasonably required warrantless inventory search of automobile following lawful arrest of occupants was unreasonable search. State v. Keller, 265 Or 622, 510 P2d 568 (1973); State v. Childers, 13 Or App 622, 511 P2d 447 (1973), Sup Ct review denied

 

      When lawful inventory search of automobile disclosed weapon which gave rise to reasonable suspicion by police that defendant was armed and dangerous, seizure of evidence obtained after limited pat-down search was valid. State v. Weeks, 29 Or App 351, 563 P2d 760 (1977)

 

      Where opaque, closed container comes into police possession lawfully, but not incident to arrest or pursuant to warrant, it must be inventoried by outward appearance without being opened. State v. Ridderbush, 71 Or App 418, 692 P2d 667 (1984); State v. Maynard, 149 Or App 293, 942 P2d 851 (1997), Sup Ct review denied

 

      Noninvestigative police inventories of contents of automobiles in governmental custody, including contents of unlocked glove and trunk compartments and open containers, are not prohibited by this section if: (1) vehicle is lawfully in administrative custody; and (2) inventory is conducted pursuant to properly authorized administrative program, designed and systematically administered so that inventory involves no exercise of discretion by person directing or taking inventory. State v. Atkinson, 298 Or 1, 688 P2d 832 (1984)

 

      This section prohibits opening closed containers and making inventory of contents of property belonging to person taken to police station or other holding facility for detoxification. State v. Perry, 298 Or 21, 688 P2d 827 (1984); State v. Okeke, 304 Or 367, 745 P2d 418 (1987)

 

      Lawful impoundment of vehicle is necessary prerequisite to inventory of its contents. State v. Smith, 72 Or App 130, 694 P2d 1013 (1985)

 

      Where government compulsion caused defendant to be detained at private facility, facility personnel conducting search authorized by law were state actors. State v. Okeke, 82 Or App 393, 728 P2d 872 (1986), aff’d 304 Or 367, 745 P2d 418 (1987)

 

      Legislature did not intend [former] ORS 426.460 to immunize intoxicated person from criminal prosecution by suppressing all evidence discovered in otherwise legitimate inventory of person’s effects. State v. Westlund, 302 Or 225, 759 P2d 541 (1986); State v. Lippert, 317 Or 397, 856 P2d 634 (1993)

 

      Admissibility of illegally obtained evidence, under doctrine of inevitable discovery, was not established where state did not offer any evidence regarding “proper and predictable investigatory procedures” used when booking arrestee into jail ward in hospital. State v. Goldsberry, 94 Or App 740, 767 P2d 110 (1989)

 

      Where defendant was booked into jail on another charge and inventory produced black compact in boot, officer conducting inventory had probable cause to search and seize evidence that announced its contents as contraband in on-going arrest which led to second arrest and subsequent conviction for possession of controlled substance. State v. Smith, 97 Or App 114, 775 P2d 335 (1989), Sup Ct review denied

 

      Wallets, purses and other property commonly used to hold valuables are not opaque, closed containers and may therefore be opened for inventory purposes. State v. Mundt/Fincher, 98 Or App 407, 780 P2d 234 (1989), Sup Ct review denied; State v. Bean, 150 Or App 223, 946 P2d 292 (1997)

 

      Where there was no statutory authority to seize records and no exigent circumstances to justify seizure, trial court correctly suppressed records seized in warrantless search by Deputy State Fire Marshal from fireworks stand operator whose records allegedly revealed some unlawful sales. State v. Anderson, 101 Or App 594, 792 P2d 451 (1990)

 

      Rules of Department of Corrections, including requirement that searches be based on reasonable suspicion, sufficiently limit department’s discretion and provide measure of control over search provided by warrant. AFSCME Local 2623 v. Dept. of Corrections, 109 Or App 662, 820 P2d 892 (1991), aff’d 315 Or 74, 843 P2d 409 (1992)

 

      Police department car inventory policy that provided only that officer complete report and note property of “great value” on standard property report form did not remove individual discretion of police officer as required for inventory policy for seizure of evidence to be constitutional. State v. Willhite, 110 Or App 567, 824 P2d 419 (1992)

 

      If officer’s suspicions about criminal activity play part in exercise of discretion to impound automobile, then decision to impound effectively singles out car for special searching and police may not embark on criminal investigation by conducting inventory in connection with impoundment as substitute for lawful search. State v. Gaunce, 114 Or App 190, 834 P2d 512 (1992), Sup Ct review denied

 

      Where item found during routine search of intoxicated person announced its contents, inspection of contents was reasonable and contents were admissible as evidence. State v. Lippert, 317 Or 397, 856 P2d 634 (1993); State v. Bunn, 125 Or App 419, 865 P2d 471 (1993)

 

      Drawing of blood samples from convicted or adjudicated prisoners for future DNA identification purposes does not constitute unreasonable search or seizure. State ex rel Juv. Dept. v. Orozco, 129 Or App 148, 878 P2d 432 (1994), Sup Ct review denied

 

      Ability of school official to search is subject to reasonable suspicion requirement of specific and articulable facts giving rise to reasonable inference. State ex rel Juvenile Dept. v. Finch, 144 Or App 42, 925 P2d 913 (1996)

 

      Opaque, closed container is subject to inventory search if it is of type that could typically hold valuable items. State v. Johnson, 153 Or App 535, 958 P2d 887 (1998), Sup Ct review denied; State v. Rutledge, 162 Or App 301, 986 P2d 99 (1999)

 

      If law allows sufficient exercise of control over vehicle, authority to conduct inventory search upon exercise of control may be implied from existence of law. State v. Boone, 327 Or 307, 959 P2d 76 (1998)

 

      Where law authorizes inventory search, valid inventory policy may be developed by police department instead of by elected public officials. State v. Boone, 327 Or 307, 959 P2d 76 (1998); State v. Layman, 162 Or App 386, 986 P2d 624 (1999)

 

      Authority of detoxification facility to conduct inventory search may be implied from decision of politically accountable body to establish facility. State v. Ketelson, 163 Or App 70, 986 P2d 1202 (1999)

 

      Officer may exercise discretion in deciding to seize property that, upon seizure, becomes subject to nondiscretionary inventory search. State v. Komas, 170 Or App 468, 13 P3d 157 (2000)

 

      Whether search is criminal or administrative in nature depends on intended consequences of investigation, not uses that possibly may later be made of information uncovered by investigation. Weber v. Oakridge School District 76, 184 Or App 415, 56 P3d 504 (2002), Sup Ct review denied

 

      Whether administrative search is reasonable depends on whether search is: 1) properly authorized by politically accountable lawmaking body; 2) designed and systematically administered to eliminate discretion by person directing search; and 3) reasonable in scope with regard to purpose of search. Weber v. Oakridge School District 76, 184 Or App 415, 56 P3d 504 (2002), Sup Ct review denied

 

      Whether administrative search is reasonable depends on whether search is: (1) conducted for purpose other than criminal law enforcement; (2) properly authorized by politically accountable lawmaking body; (3) designed and systematically administered to eliminate discretion by person directing search; (4) reasonable in scope with regard to purpose of search; and (5) performed by person acting within bounds of policy of search. State v. Snow, 247 Or App 497, 268 P3d 802 (2011)

 

      Where deputies’ forcible entry into private office while carrying out writ of execution is not permitted by ORS 18.887--the only source of legal authority for the search--administrative search exception to warrant requirement does not apply and evidence obtained as direct result of search must be suppressed. State v. Mast, 250 Or App 605, 282 P3d 916 (2012)

 

      Emergency aid doctrine

 

      Police may enter dwelling without warrant to render emergency assistance to person whom they reasonably believe to be in distress and in need of that assistance. State v. Plant, 28 Or App 771, 561 P2d 647 (1977)

 

      Emergency aid doctrine cannot be invoked to justify warrantless entry into defendant’s motel room where alleged emergency had dissipated prior to police officers’ entry; absent articulable facts that show compelling need to enter to serve needs of safety during criminal investigation, police officers’ entry was not lawful under this section. State v. Davis, 295 Or 227, 666 P2d 802 (1983)

 

      Where police knew there had been single car accident resulting in serious damage to car, letter found in car was addressed to person with same surname as car’s owner and house at address on letter had broken front door screen and open front door, facts do not constitute strong showing that seriously injured person might be inside house needing medical attention and warrantless entry was not justified under emergency doctrine exception. State v. Apodaca, 85 Or App 128, 735 P2d 1264 (1987)

 

      Even if entry of residence by fire department was valid by reason of smell of ether emanating from house, no authority was presented for warrantless entry by police officer accompanying firefighters, nor could entry be justified under emergency aid doctrine in absence of reasonable belief or suspicion of criminal activity. State v. Sanchez, 105 Or App 451, 805 P2d 153 (1991), Sup Ct review denied

 

      Emergency aid doctrine provides exception to warrant requirement if police reasonably believe emergency exists requiring immediate assistance to protect life, if emergency really does exist, if primary motivation is not to arrest or seize evidence, and if police have reasonable suspicion that place searched is associated with emergency and that entry will alleviate emergency. State v. Follett, 115 Or App 672, 840 P2d 1298 (1992), Sup Ct review denied

 

      No search occurred when officer forcibly entered house to render medical aid and observed marijuana plants in plain view, and subsequent seizure of plants was authorized. State v. Russell, 118 Or App 652, 848 P2d 657 (1993), Sup Ct review denied

 

      Where violent altercation had occurred within residence and potential for violence had not yet dissipated, police entry was justified and drugs discovered in plain view were admissible. State v. Agnes, 118 Or App 675, 848 P2d 1237 (1993)

 

      Whether true emergency existed is assessed in light of circumstances at time of warrantless entry. State v. Martin, 124 Or App 459, 863 P2d 1276 (1993)

 

      Where emergency outside had dissipated, officer reentry of premises to report situation under control was not justified by doctrine. State v. Will, 131 Or App 498, 885 P2d 715 (1994)

 

      Involuntary restraint of defendant under mental commitment statute does not render evidence reasonably seized by hospital personnel inadmissible in criminal proceeding. State v. De Aubre, 147 Or App 412, 937 P2d 125 (1997)

 

      True emergency exists if officer has subjective belief that emergency exists and belief is objectively reasonable at time warrantless entry is made, notwithstanding that belief is ultimately incorrect. State v. Martofel, 151 Or App 249, 948 P2d 1253 (1997), Sup Ct review denied

 

      Emergency aid doctrine applies and permits law enforcement officer to seize without warrant defendant’s horse where law enforcement officer reasonably believes that horse is near death from starvation, is in imminent danger of suffering organ damage and needs immediate medical care. State v. Fessenden, 258 Or App 639, 310 P3d 1163 (2013), aff’d State v. Fessenden/Dicke, 355 Or 759, 333 P3d 278 (2014)

 

      Exigent circumstances

 

      Exigent circumstances exception applies and permits warrantless search where officer had probable cause to believe that defendants were committing crime of animal neglect under ORS 167.325 by failing to provide minimal care for horse. Because officer determined warrantless action was necessary to prevent ongoing criminal act from causing further serious imminent harm to horse, officer’s warrantless search was limited to exigency that justified search. State v. Fessenden/Dicke, 355 Or 759, 333 P3d 278 (2014)

 

Judicial procedures for wrongful search or seizure

      Violation of statute, as distinguished from constitutional provision, did not necessarily result in suppression of evidence. State v. Greenough, 7 Or App 520, 491 P2d 630 (1971), Sup Ct review denied

 

      Motion to suppress evidence must be made before trial, unless defendant was unaware of seizure or had no opportunity to present his motion before trial. State v. McCusker, 11 Or App 428, 503 P2d 732 (1972)

 

      Trial court properly suppressed evidence of contraband found in flight bag removed from car in which defendant was riding, because removal of bag from car was not supported by probable cause and exigent circumstances, was not incident to arrest and cannot be justified as inventory search because car was not impounded. State v. Smith, 72 Or App 130, 694 P2d 1013 (1985)

 

      State may not offer illegally seized evidence previously excluded from state’s case in chief to rebut defendant’s refusal to answer under Fifth Amendment to United States Constitution. State v. Iseli, 80 Or App 208, 720 P2d 1343 (1986), Sup Ct review denied

 

      Exclusionary rule does not apply to probation revocation hearings. State v. Kissell, 83 Or App 630, 732 P2d 940 (1987)

 

      Where car was unlawfully seized, though valid warrant was obtained before search of car, evidence discovered during search relevant to purpose of previous unlawful seizure was properly suppressed. State v. Nicholson, 89 Or App 306, 748 P2d 1028 (1988), Sup Ct review denied

 

      Trial court did not err in suppressing evidence seized from defendant’s purse, because no exigent circumstances justified warrantless seizure of purse notwithstanding that it reportedly contained small amount of marijuana. State v. Price, 92 Or App 669, 759 P2d 1130 (1988)

 

      Evidence of crimes committed against police officers, during what turns out to be illegal entry, may not be suppressed under exclusionary rule. State v. Janicke, 103 Or App 227, 796 P2d 392 (1990)

 

      To claim violation of rights under this section, defendant must assert possessory interest in seized property even though possession of property is element of crime charged and defendant will be forced to take position at trial that is contrary to position taken in pretrial hearing on motion to suppress seized property as evidence. State v. MacDonald, 105 Or App 102, 803 P2d 1211 (1990), Sup Ct review denied

 

      Prohibition against use of illegally obtained evidence is not limited to criminal prosecution proceedings. State ex rel Juv. Dept. v. Rogers, 314 Or 114, 836 P2d 127 (1992); State v. Swartzendruber, 120 Or App 552, 853 P2d 842 (1993)

 

      Illegally seized evidence must be suppressed at sentencing hearing by another court for different offense. State v. Swartzendruber, 120 Or App 552, 853 P2d 842 (1993)

 

      Where defendant shows that evidence obtained through warrant is connected to prior governmental misconduct, burden of proof shifts to government to show that evidence is not tainted by misconduct. State v. Johnson, 335 Or 511, 73 P3d 282 (2003)

 

      Exclusion of improperly obtained evidence against parent is not available in juvenile dependency hearing. State ex rel Department of Human Services v. W.P., 345 Or 657, 202 P3d 167 (2009)

 

Judicial review

 

      If defendant failed before or during trial to contend that seizure violated his constitutional rights, he is not entitled to raise question for first time on appeal. State v. McCusker, 11 Or App 428, 503 P2d 732 (1972)

 

      When evidence with reference to consent to warrantless search is in conflict, issue is one of fact for trial court, and trial court’s findings will not be disturbed if they are supported by evidence. State v. Hirsch, 267 Or 613, 503 P2d 726, 518 P2d 649 (1974)

 

      Appellate court deference to trial court findings of fact applies to trial court findings that party’s evidence is not sufficiently persuasive. State v. Johnson, 335 Or 511, 73 P3d 282 (2003)

 

COMPLETED CITATIONS: State Forester v. Umpqua R. Nav. Co., 258 Or 10, 478 P2d 631 (1970), cert. denied, 404 US 826 (1971); State v. Dixon, 5 Or App 113, 481 P2d 629 (1971), Sup Ct review denied, cert. denied, 403 US 928 (1971); State v. Redeman, 6 Or App 205, 485 P2d 655, 486 P2d 1311 (1971); State v. Elliott, 6 Or App 249, 486 P2d 1296 (1971), Sup Ct review denied

 

ATTY. GEN. OPINIONS: Constitutionality of drug-testing programs, (1987) Vol 46, p 7; lawfulness of Multnomah County ordinance regulating public possession of firearms in unincorporated areas of county, (1990) Vol 46, p 362

 

LAW REVIEW CITATIONS: 10 WLJ 62 (1973); 53 OLR 490-496 (1974); 54 OLR 405-408 (1975); 55 OLR 279-290 (1976); 17 WLR 757 (1981); 65 OLR 681 (1986); 24 WLR 967 (1988); 25 WLR 697, 868-879 (1989); 68 OLR 261, 724 (1989); 26 WLR 219 (1989); 28 WLR 195 (1991); 71 OLR 1 (1992); 74 OLR 697 (1995); 75 OLR 577, 609 (1996); 32 WLR 677 (1996); 87 OLR 819 (2008); 52 WLR 353 (2016)

 

Art. I, Section 10

 

NOTES OF DECISIONS

 

Administration of justice

 

      Openly and without purchase

      Entire statutory scheme of involuntary commitment, including return to institution following trial visit, provides procedural safeguards which satisfy requirement of due process. Dietrich v. Brooks, 27 Or App 821, 558 P2d 357 (1976), Sup Ct review denied

 

      Judge’s order barring press from hearings in juvenile proceeding was invalid as contrary to this section. State ex rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 613 P2d 23 (1980)

 

      Provision of [former] ORS 163.475 which authorizes in camerahearing to determine admissibility of evidence of victim’s prior sexual conduct does not violate right to public trial guaranteed by this section. State v. Blake, 53 Or App 906, 633 P2d 831 (1981); State v. MacBale, 353 Or 789, 305 P3d 107 (2013)

 

      Trial court had discretion to determine that television broadcasting station would not be allowed copy of videotape of civil defendant’s testimony after trial in which videotape was played to jury in open court. State ex rel KOIN-TV v. Olsen, 300 Or 392, 711 P2d 966 (1985)

 

      Where witness is excluded from courtroom to prevent witness from being influenced by hearing testimony of prior witness, this section is not violated. State v. Vosika, 83 Or App 298, 731 P2d 449 (1987)

 

      Where defendant pleaded no contest to and was convicted of driving under influence of intoxicants in 1980 and in 1986 sought and was awarded post-conviction relief from that judgment, state’s subsequent decision to continue prosecution was not barred by statute of limitations. State v. Sisneros, 84 Or App 306, 734 P2d 355 (1987), Sup Ct review denied

 

      Closed hearing provision of ORS 136.617 violates this section. Oregonian Publishing Co. v. O’Leary, 303 Or 297, 736 P2d 173 (1987)

 

      Defendant has no right to interlocutory appeal where trial court denies motion to dismiss on grounds of former jeopardy. State v. Salzmann, 119 Or App 217, 850 P2d 1122 (1993)

 

      Requirement that justice be administered “without purchase” prohibits: 1) procurement of legal redress through bribery and other forms of improper influence; and 2) judicial imposition of fees and costs in amounts so onerous as to unreasonably limit access to courts. Allen v. Employment Dept., 184 Or App 681, 57 P3d 903 (2002)

 

      Open courts guarantee applies only to proceedings in court and before judge that are immediately related to presentation of evidence and argument. Jury Service Resource Center v. Carson, 199 Or App 106, 110 P3d 594 (2005), rev’d on other grounds, 340 Or 423, 134 P3d 948 (2006)

 

      This section does not require trial court to release to public trial exhibits that are subject of protective order or entitle public to have access to trial exhibits after trial ends. Doe v. Corporation of Presiding Bishop, 352 Or 77, 280 P3d 377 (2012)

 

      Without delay

 

      Relevant period for determining whether unreasonable delay has occurred commences with state’s filing of formal complaint. State v. Downing, 4 Or App 269, 478 P2d 420 (1970); State v. Green, 140 Or App 308, 915 P2d 460 (1996)

 

      This section should be given similar construction as is given to speedy trial clause of Sixth Amendment to United States Constitution. State v. Downing, 4 Or App 269, 478 P2d 420 (1970); State v. Ivory, 20 Or App 253, 531 P2d 293 (1975)

 

      State’s preference to try codefendant first did not cause improper delay. State v. Tyrrell, 8 Or App 127, 492 P2d 485 (1971), Sup Ct review denied

 

      A defendant is not entitled to speedy trial safeguard in case of delay for which he shares responsibility. State v. Estlick, 9 Or App 281, 496 P2d 933 (1972)

 

      Dismissal for lack of speedy trial was proper where warrant not served for six months after indictment due solely to police negligence. State v. Willingham, 13 Or App 504, 510 P2d 1339 (1973)

 

      Time elapsing prior to arrest or formal charge is not taken into consideration in determining whether defendant has been given speedy trial. State v. Serrell, 265 Or 216, 507 P2d 1405 (1973)

 

      ORS 136.130 is statutory acknowledgment of mechanism for authority of courts to effectuate speedy trial clause. State v. Williams, 17 Or App 43, 520 P2d 462 (1974)

 

      Trial court erred in dismissing felony indictment with prejudice where: 1) state was unable to proceed due to external circumstances beyond its control and requested dismissal; 2) defendant made no showing of actual prejudice; and 3) dismissal with prejudice was not reasonably required to assure defendant’s right to a speedy trial nor the public’s right to effective enforcement of criminal law. State v. Williams, 17 Or App 43, 520 P2d 462 (1974)

 

      Defendant did not carry his burden of proving his right to due process was prejudiced by a four-month preindictment delay by claiming that he did not remember day of alleged crime with specificity. State v. Brown, 23 Or App 158, 541 P2d 491 (1975)

 

      The six-month delay in the execution of arrest warrant did not deny defendant right to speedy trial where state did not know the defendant’s whereabouts and ignorance was not due to gross negligence or intentional. State v. Hutchins, 25 Or App 281, 548 P2d 1359 (1976)

 

      When half of three-year delay was caused by prosecution’s attempts to disqualify trial judge, and when during delay defendant’s memory deteriorated and his records were lost, speedy trial was denied. State v. Jenkins, 29 Or App 751, 565 P2d 758 (1977)

 

      Where defense witness became impeachable because of delay caused by state, insufficient actual prejudice existed under this section. State v. Robinson, 39 Or App 619, 593 P2d 1179 (1979), Sup Ct review denied

 

      Where defendant had full opportunity in prior proceedings to litigate issue regarding additional evidence bearing on prejudice from delay in bringing to trial, but for tactical reasons did not put forth such evidence, defendant was foreclosed from relitigating issue. State v. Koennecke, 40 Or App 239, 595 P2d 489 (1979), Sup Ct review denied

 

      Where delay of 16 months from date of indictment to trial was principally caused by attempt to bring defendant to trial through Interstate Agreement on Detainers and defendant’s lack of cooperation frustrated that effort, defendant was not denied right to speedy trial. State v. DeMotte, 42 Or App 413, 600 P2d 923 (1979)

 

      Defendant, who was not arrested until 15 months after his indictment, was not denied right to speedy trial because passage of 15 months did not constitute prejudice per se, and there was no evidence in record to show that there was reasonable possibility that defendant was prejudiced. State v. Burns, 43 Or App 937, 607 P2d 735 (1979)

 

      Post-indictment, prearrest delay of six and one-half months did not violate defendant’s right to speedy trial where prejudice complained of was inability to find witness, but defendant presented no evidence to show that it was probable witness could have been found in absence of delay. State v. Jones, 46 Or App 479, 611 P2d 1200 (1980)

 

      Where principal reason for delay of defendant’s trial was his incarceration in California and institution of proceedings necessary to bring him to trial pursuant to ORS 135.775, there was nothing to indicate delay was intentionally caused by state to prejudice of defendant. State v. Miebach, 52 Or App 709, 629 P2d 1312 (1981), Sup Ct review denied

 

      On remand, where there was delay between indictment and time of trial, delay did not operate to deprive defendant of right to speedy trial where defendant was responsible for part of delay because of failure to appear for setting of new trial date and defendant failed to show probable prejudice or even reasonable possibility of prejudice because record did not indicate whether testimony of missing witnesses would be exculpatory, and did not disclose when witnesses became unavailable. State v. Langlois, 54 Or App 452, 635 P2d 653 (1981)

 

      There was no constitutional denial of defendants’ speedy trial rights, where delay was caused by district court’s dismissal of cases, where major reason of delay was to aid defendants, defendants did not raise right until district court disavowed dismissal agreements and no showing of prejudice was made. State v. Neal, 58 Or App 180, 647 P2d 974 (1982)

 

      Failure of state to lodge detainer against defendant, thereby preventing him from obtaining protection of Interstate Agreement on Detainers, did not prejudice his right to speedy trial. State v. Coffman, 59 Or App 18, 650 P2d 144 (1982)

 

      Pretrial order dismissing charge on speedy trial grounds should not have been granted where defendant made no showing that witnesses were unavailable by reason of delay attributable to state; even if witnesses were unavailable because of state’s decision not to extradite defendant, defendant’s mere assertion that their testimony might be “helpful” does not constitute sufficient showing of possible prejudice. State v. Garcia, 68 Or App 58, 680 P2d 704 (1984)

 

      In filiation proceeding, there can be no constitutional or statutory time bar. State ex rel AFSD v. Keusink, 69 Or App 324, 684 P2d 1239 (1984), Sup Ct review denied

 

      Three factors considered by courts in determining unreasonable delay in bringing case to trial are: 1) length of delay; 2) reasons for delay; and 3) prejudice to defendant. State v. Dykast, 300 Or 368, 712 P2d 79 (1985); State v. Coggin, 126 Or App 230, 868 P2d 29 (1994); State v. Emery, 318 Or 460, 869 P2d 859 (1994)

 

      Under circumstances, 18-plus month interval between defendant’s arrest and trial was not so great as to require dismissal of charges under this section. State v. Dykast, 300 Or 368, 712 P2d 79 (1985)

 

      State’s unexplained failure for three years to bring defendant to trial on serious driving offense (driving under influence of intoxicants) was “delay” of justice within meaning of this section. State v. Hale, 80 Or App 279, 721 P2d 887 (1986)

 

      Where defendant sought dismissal of charge on ground that he was denied speedy trial, defendant submitted affidavit in support of his motion and defendant refused to submit to cross-examination regarding affidavit, trial court did not err in striking substance of affidavit because it did not force defendant to choose between his constitutional rights to speedy trial and against self-incrimination. State v. Mende, 83 Or App 7, 730 P2d 555 (1986), aff’d 304 Or 18, 741 P2d 496 (1987)

 

      Where defendant failed to demonstrate any actual prejudice to his ability to defend charge against him, 16-month delay between his indictment and arrest, caused by budget restrictions that resulted in temporary suspension of warrant service, did not require dismissal of charge against him. State v. Mende, 304 Or 18, 741 P2d 496 (1987)

 

      This section has not been interpreted to protect against preindictment delay and phrase “justice shall be administered . . . without delay” is directed to unreasonable delay after charge has been formerly made. State v. Dike, 91 Or App 542, 756 P2d 657 (1988), Sup Ct review denied

 

      Provision that “justice shall be administered . . . without delay” applies only to unreasonable delay after charge has been formally made. State v. Schiff, 93 Or App 301, 762 P2d 319 (1988)

 

      Considerations in determining whether requirement of “justice . . . without delay” has been violated are: 1) length of delay; 2) reasons for delay; and 3) resulting prejudice to defendant; in light of reasons for delay and in absence of actual prejudice to defendant, even two-year delay would not require dismissal. State v. Schiff, 93 Or App 301, 762 P2d 319 (1988)

 

      Delay was neither “manifestly excessive” nor “unreasonable” when length of delay between arraignment and dismissal was nine months, state-caused delay was not intentional and defendant did not specifically assert actual prejudice. State v. Wirth, 114 Or App 496, 835 P2d 952 (1992)

 

      Where defendant made no claim of prejudice from pretrial incarceration, impairment of ability to defend, or anxiety and concern, trial court properly denied motion to dismiss. State v. Chinn, 115 Or App 662, 840 P2d 92 (1992)

 

      Failure to undertake parole revocation hearing and execution of suspended sentence until after defendant completed incarceration period for another charge was not prejudicial because there is no right to concurrent sentence. State v. Dunn, 123 Or App 288, 859 P2d 1169 (1993), Sup Ct review denied

 

      Delay of more than two years caused by Supreme Court review of pretrial motion was not unreasonable or prejudicial to defendant. State v. Moylett, 123 Or App 600, 860 P2d 886 (1993), Sup Ct review denied

 

      Delay of 27 months between indictment and arraignment due to interagency miscommunication was not presumptively prejudicial. State v. Coggin, 126 Or App 230, 868 P2d 29 (1994)

 

      Eight-year delay between indictment and arrest is presumptively prejudicial. State v. Rohlfing, 155 Or App 127, 963 P2d 87 (1998)

 

      In determining whether delay is presumptively prejudicial, court looks at both length of delay and reason for delay. State v. Kirsch, 162 Or App 392, 987 P2d 556 (1999)

 

      Pretrial imprisonment of defendant in connection with pending charge shortens constitutionally permissible measure of delay. State v. Harberts, 331 Or 72, 11 P3d 641 (2000)

 

      Speedy trial is affirmative obligation of state that does not depend on assertion of right by defendant. State v. Harberts, 331 Or 72, 11 P3d 641 (2000)

 

      Proper inquiry regarding prejudice to defense is whether delay caused reasonable possibility of prejudice. State v. Harberts, 331 Or 72, 11 P3d 641 (2000)

 

      Unreasonable delay by appellate court in disposing of interlocutory appeal militates in favor of dismissal of charge even if prosecutor had no control over delay. State v. Fleetwood, 186 Or App 305, 63 P3d 42 (2003), Sup Ct review denied

 

      Speedy trial guarantee does not attach until defendant is charged by indictment or by alternative procedure set forth in section 5, Article VII (Amended) of Oregon Constitution. State v. Vasquez, 336 Or 598, 88 P3d 271 (2004)

 

      Speedy trial requirement does not apply to period between original trial and remand following successful appeal. State v. Davis, 216 Or App 456, 174 P3d 1022 (2007), Sup Ct review denied

 

      Right to speedy trial applies throughout processes of criminal trial, appeal and trial proceedings on remand. State v. McDonnell, 343 Or 557, 176 P3d 1236 (2007)

 

      Completely

 

      Completeness requirement does not mandate litigation of post-conviction relief in death penalty case. Bryant v. Thompson, 324 Or 141, 922 P2d 1219 (1996)

 

Protection of remedies

 

      This section does not require that there be judicial review of administrative decisions. Ortwein v. Schwab, 262 Or 375, 498 P2d 757 (1972), aff’d 410 US 656, 93 S Ct 1172, 35 L Ed 2d 572 (1973), rehearing denied, 411 US 922 (1973)

 

      This section does not require a right of appeal from a trial court to an appellate court in either criminal or civil cases. Ortwein v. Schwab, 262 Or 375, 498 P2d 757 (1972), aff’d 410 US 656, 93 S Ct 1172, 35 L Ed 2d 572 (1973), rehearing denied, 411 US 922 (1973)

 

      Viable unborn child is “person” for purposes of this section. Libbee v. Permanente Clinic, 268 Or 258, 518 P2d 636 (1974)

 

      When treating this section as due process clause, court has not treated it substantially different from federal interpretation of Fourteenth Amendment to United States Constitution. Sch. Dist. 12 v. Wasco County, 270 Or 622, 529 P2d 386 (1974)

 

      Juvenile proceeding which does not include possibility of incarceration does not need to include full spectrum of due process rights. State ex rel Juvenile Dept. v. K., 26 Or App 451, 554 P2d 180 (1976), Sup Ct review denied

 

      Division’s failure to inform petitioner of its intent to suspend her operator’s license and of availability of presuspension hearing denied petitioner due process. Floyd v. Motor Vehicles Div., 27 Or App 41, 554 P2d 1024 (1976), Sup Ct review denied

 

      Classified state employe who was dismissed without any pretermination procedural safeguards was entitled to an award of back wages and benefits until properly terminated. Tupper v. Fairview Hosp., 276 Or 657, 556 P2d 1340 (1976)

 

      Where defendant was arrested as suspect for armed robbery, taken in for questioning and then released, guarantee of speedy trial did not attach because at that time defendant was not held to answer criminal charge. State v. Harris, 37 Or App 431, 587 P2d 498 (1978)

 

      This section does not specify that remedy need be same as was available at common law at time of adoption of Constitution, so that legislature may restrict remedy by statute insofar as it does not abolish cause of action. Davidson v. Rogers, 281 Or 219, 574 P2d 624 (1978)

 

      In adopting ORS 164.405 and 164.415 (robbery), legislature intended to continue to permit juries to infer from fact that gun used in robbery was pointed at victim within firing range that it was loaded gun, and such inference does not shift burden of proof to defendant or violate his privilege against self-incrimination. State v. Vance, 285 Or 383, 591 P2d 355 (1979)

 

      This section, construed together with section 8, Article I, prohibits the award of punitive damages in common law defamation cases. Wheeler v. Green, 286 Or 99, 593 P2d 777 (1979)

 

      Where plaintiff physician asserted that defendant-privately-run hospital wrongfully terminated his staff privileges, this section was inapplicable as it does not address directives to private parties. Straube v. Emanuel Lutheran Charity Bd., 287 Or 375, 600 P2d 381 (1979)

 

      This section, together with section 8, Article I, prohibits award of punitive damages for emotional distress inflicted solely through expression or communication. Hall v. The May Dept. Stores Co., 292 Or 131, 637 P2d 126 (1981)

 

      Employment contract permitting good faith dismissal for any cause creates property interest in employment for term of contract. Maddox v. Clackamas County School District No. 25, 293 Or 27, 643 P2d 1253 (1982)

 

      Procedural requirement that person pay tax prior to appealing tax assessment does not result in kind of injury for which this section grants remedies. Cole v. Dept. of Revenue, 294 Or 188, 655 P2d 171 (1982)

 

      Barring recovery from public employes for actions which, if performed by private individuals might very well be actionable, is not violation of this section. Albers v. Whitley, 546 F Supp 726 (1982)

 

      In libel action by private plaintiffs against media defendants, First Amendment to United States Constitution requires proof that defendants acted at least negligently and nothing in this section nor section 8, Article I, requires proof of greater culpability. Bank of Oregon v. Independent News, 65 Or App 29, 670 P2d 616 (1983), aff’d 298 Or 434, 693 P2d 35 (1985)

 

      Barring person who may have violated criminal statute from seeking civil damages for personal injuries might violate provision in this section for “remedy by due course of law for injury. . . .” Ashmore v. Cleanweld Prods. Inc., 66 Or App 62, 673 P2d 864 (1983)

 

      Statute of limitations for product liability actions, ORS 30.905, does not violate this section. Davis v. Whiting Corp., 66 Or App 541, 674 P2d 1194 (1983), Sup Ct review denied

 

      Exclusive liability provision of Workers’ Compensation Act which renders void agreement by employer to indemnify third party liable to injured worker or deceased worker’s estate does not deny third party remedy in violation of this section. Roberts v. Gray’s Crane & Rigging, 73 Or App 29, 697 P2d 985 (1985), Sup Ct review denied

 

      Court erred in issuing injunction that barred defendants from entering shopping center to collect signatures on initiative petitions and court must find proper accommodation between property rights under this section and defendants’ rights of expression under section 8, Article I. Lloyd Corporation v. Whiffen, 89 Or App 629, 750 P2d 1157 (1988), aff’d 307 Or 674, 773 P2d 1294 (1989)

 

      Where public body would be immune from suit under common law, it is impossible for limitation on statutorily created liability to violate right to remedy. Hale v. Port of Portland, 308 Or 508, 783 P2d 506 (1989); Gunn v. Lane County, 173 Or App 97, 20 P3d 247 (2001), Sup Ct review denied; Taylor v. Lane County, 213 Or App 633, 162 P3d 356 (2007), Sup Ct review denied

 

      Where decedent would have been prevented from asserting claim, preventing bringing of derivative claim does not improperly deny remedy. Kilminster v. Day Management Corp., 323 Or 618, 919 P2d 474 (1996)

 

      Statute exempting state defendants from liability does not violate plaintiff’s right to remedy because sovereign immunity would apply in absence of statute. Brewer v. State Dept. of Fish and Wildlife, 167 Or App 173, 2 P3d 418 (2000), Sup Ct review denied

 

      Restriction on remedy for recognized wrong is valid if restriction reflects legislative decision to trade or balance competing social interests. Brewer v. State Dept. of Fish and Wildlife, 167 Or App 173, 2 P3d 418 (2000), Sup Ct review denied

 

      Remedy that eliminates compensation for noneconomic damages is substantial if compensation is available for economic damages. Storm v. McClung, 168 Or App 62, 4 P3d 66 (2000), aff’d 334 Or 210, 47 P3d 476 (2002)

 

      Substituted remedy must provide some benefit to class of potential plaintiffs in addition to simple elimination or reduction of existing remedy. Storm v. McClung, 168 Or App 62, 4 P3d 66 (2000), aff’d 334 Or 210, 47 P3d 476 (2002)

 

      Where right of action is statutory in nature, legislature may limit availability of remedy. Storm v. McClung, 334 Or 210, 47 P3d 476 (2002); Hughes v. PeaceHealth, 344 Or 142, 178 P3d 225 (2008)

 

      Oregon Tort Claims Act limitation on cause of action for tort committed by employee of public body does not, on its face, violate right to remedy for injury. Jensen v. Whitlow, 334 Or 412, 51 P3d 599 (2002)

 

      Punitive damages are not remedy guaranteed to particular party for injury to person, property or reputation. DeMendoza v. Huffman, 334 Or 425, 51 P3d 1232 (2002)

 

      Legislative alteration to cause of action abolishes remedy if residual relief available to claimant is not substantial. Lawson v. Hoke, 190 Or App 92, 77 P3d 1160 (2003), aff’d 339 Or 253, 119 P3d 210 (2005)

 

      Where legislature alters cause of action, alteration need not provide specific benefit to same individuals whose remedies are negatively affected by alteration. Lawson v. Hoke, 190 Or App 92, 77 P3d 1160 (2003), aff’d 339 Or 253, 119 P3d 210 (2005)

 

      Violation of statutory law that is within chain of causation for harm suffered may bar person from pursuing otherwise meritorious damage claim traditionally recognized at common law. Lawson v. Hoke, 339 Or 253, 119 P3d 210 (2005)

 

      Remedy clause applies to natural persons only. Liberty Northwest Insurance v. Oregon Insurance Guarantee Association, 206 Or App 102, 136 P3d 49 (2006)

 

      Where purpose and mission of public corporation identify matters of statewide concern, public corporation is instrumentality of state government immune from suit at common law. Clarke v. Oregon Health Sciences University, 206 Or App 610, 138 P3d 900 (2006), aff’d 343 Or 581, 175 P3d 418 (2007)

 

      For legislatively substituted remedy to be constitutionally sufficient, remedy must be capable of restoring injured right of particular plaintiff. Clarke v. Oregon Health Sciences University, 206 Or App 610, 138 P3d 900 (2006), aff’d 343 Or 581, 175 P3d 418 (2007)

 

      “Property” encompasses both legal and possessory interests in real and personal property, including money, goods and things incidental to the property. Juarez v. Windsor Rock Products, Inc., 341 Or 160, 144 P3d 211 (2006)

 

      Legislature may impose statute of limitations or otherwise modify time for bringing common law cause of action recognized in 1859. Christiansen v. Providence Health System of Oregon, 344 Or 445, 184 P3d 1121 (2008)

 

      Legislature may create remedy that substitutes common law right if remedy is substantial. Howell v. Boyle, 353 Or 359, 298 P3d 1 (2013)

 

      “Injury” as used in this section is not limited to concept of term as it was defined by common law in 1857, and instead legislature may modify or eliminate common law duties as warranted by changing conditions. Horton v. OHSU, 359 Or 168, 376 P3d 998 (2016)

 

      Remedy cap of $3 million in Oregon Tort Claims Act, while not sufficient to compensate plaintiff for whom jury determined award of more than $12 million, does not violate this section. Horton v. OHSU, 359 Or 168, 376 P3d 998 (2016)

 

COMPLETED CITATIONS: Buchea v. Sullivan, 6 Or App 77, 485 P2d 1244 (1971), rev’d 262 Or 222, 497 P2d 1169 (1972); State v. Rowley, 6 Or App 13, 485 P2d 1120 (1971), Sup Ct review denied

 

ATTY. GEN. OPINIONS: Constitutionality of provisions that juvenile court proceedings and records may be closed to public, (1977) Vol 38, p 1504

 

LAW REVIEW CITATIONS: 4 EL 421 (1974); 16 WLR 591 (1980); 17 WLR 720, 757 (1981); 65 OLR 35 (1986); 23 WLR 338, 350 (1987); 24 WLR 173 (1988); 25 WLR 653 (1989); 69 OLR 157 (1990); 27 WLR 1, 143 (1991); 70 OLR 855 (1991); 71 OLR 497 (1992); 72 OLR 1019 (1993); 74 OLR 379 (1995); 79 OLR 793 (2000); 38 WLR 477 (2002); 44 WLR 761 (2007); 87 OLR 717 (2008)

 

Art. I, Section 11

 

In general

Counsel

      Right to counsel

      Adequate counsel

Venue

Jury

Accusation

Confrontation

Public trial

Right of accused to be heard

Compulsory process

 

NOTES OF DECISIONS

 

In general

 

      Valid waiver, which required knowledge, is never presumed from silent record in sentencing court. Miller v. Gladden, 249 Or 51, 54, 437 P2d 119 (1968); Harris v. Cupp, 6 Or App 400, 487 P2d 1402 (1971), Sup Ct review denied

 

      Defendant has constitutional right to copy of that part of presentence report which deals with public information and relates to his prior criminal record. Buchea v. Sullivan, 262 Or 222, 497 P2d 1169 (1972)

 

      Requirement that defendant disclose his alibi defense, without reciprocal requirement that prosecutor disclose evidence to be used to refute alibi, is unconstitutional violation of due process. Wardius v. Ore., 406 US 957, 93 S Ct 2208, 32 L Ed 2d 343 (1973)

 

      Dismissal of criminal case is not constitutionally required solely because defendant is denied opportunity to independently analyze culpable physical evidence which is no longer physically available. State v. Jones, 18 Or App 343, 525 P2d 194 (1974), Sup Ct review denied

 

      Due process does not require that a preliminary hearing be presided over by law-trained magistrate. State v. Pfeiffer, 25 Or App 45, 548 P2d 174 (1976)

 

      Defendant knowingly and intelligently waived Miranda rights prior to making inculpatory statements to police. State v. Jones, 27 Or App 767, 557 P2d 264 (1976), Sup Ct review denied

 

      Provisions of [former] ORS 426.290 relating to termination of trial visits for involuntarily committed patients do not violate due process or equal protection. Dietrich v. Brooks, 27 Or App 821, 558 P2d 357 (1976), Sup Ct review denied

 

      Trial of driver charged with first offense of driving under influence of intoxicants pursuant to [former] ORS 484.365 is properly characterized as “criminal,” and thus offense may not be tried without constitutional safeguards guaranteed defendants in criminal prosecutions. Brown v. Multnomah County Dist. Ct., 280 Or 95, 570 P2d 52 (1977)

 

      When indictment charges that criminal agreement was made in certain county, conviction cannot rest on proof that agreement was made in different county and only subsequent acts in pursuance of agreement occurred in county where making of agreement is alleged. State v. Roper, 286 Or 621, 587 P2d 487 (1979)

 

      Where defendant was indicted for aggravated murder under ORS 163.095, conviction on stipulated facts for intentional murder under ORS 163.115 did not violate defendant’s due process rights. Riley v. Cupp, 56 Or App 467, 642 P2d 333 (1982), Sup Ct review denied

 

      Where motion to withdraw waiver of jury trial was made on day of trial and was based on trial strategy only, motion was properly denied. State v. Villareall, 57 Or App 292, 644 P2d 614 (1982)

 

      [Former] ORS 487.540, making it unlawful for person with .10 percent blood-alcohol to drive, is not unconstitutionally vague under this section. State v. Gainer, 70 Or App 199, 689 P2d 323 (1984)

 

      Court’s failure to advise defendant that pleading guilty to driving under influence of intoxicants would result in prolonged license suspension on subsequent conviction for same offense within five years did not violate constitutional rights. Chapel v. State of Oregon, 71 Or App 49, 691 P2d 514 (1984)

 

      Where defendant appeals conviction because of no written waiver of jury trial, “principled distinction” between error in this case and constitutional errors that Court of Appeals declines to review unless error preserved is express requirement of Oregon Constitution that waiver of right to jury trial be in writing and additionally, ORAP 7.19(5) permits consideration of error on appeal if apparent on face of record even if not raised below. State v. McDaniel, 96 Or App 337, 772 P2d 951 (1989), Sup Ct review denied

 

      Because this article applies only “in all criminal prosecutions,” it does not apply in termination cases. State ex rel Juv. Dept. v. Stevens, 100 Or App 481, 786 P2d 1296 (1990), Sup Ct review denied

 

      Where it was within discretion of original trial court to order petitioner shackled on basis of findings that petitioner was dangerous and that there was danger of escape, it is more probable than not that result of direct appeal from original criminal convictions would not have been different had petitioner’s attorney raised shackling issue. Guinn v. Cupp, 101 Or App 474, 791 P2d 141 (1990), Sup Ct review denied

 

      Where trial court failed to give jury instruction on fourth question on subject of mitigation, case remanded to trial court for retrial of penalty phase. State v. Wagner, 309 Or 5, 786 P2d 93 (1990); State v. Moen, 309 Or 45, 786 P2d 111 (1990); State v. Guzek, 310 Or 299, 797 P2d 1031 (1991); State v. Williams, 313 Or 19, 828 P2d 1006 (1992); State v. Rogers, 313 Or 356, 836 P2d 1308 (1992)

 

      Where defendant was convicted of aggravated murder and sentenced to death evidence that defendant had threatened one or both victims with shotgun during argument on prior occasion, evidence of prior convictions for negligent homicide and forgery and testimony regarding unadjudicated incident in 1959 and evidence of prior convictions for negligent homicide and forgery were properly presented to jury during penalty stage. State v. Moen, 309 Or 45, 786 P2d 111 (1990)

 

      Trial court’s instructions to jury that they could not have sympathy for defendant in deliberations on penalty phase were proper because role of jury is to reach reasoned decision based solely on evidence before jury. State v. Moen, 309 Or 45, 786 P2d 111 (1990)

 

      Requirement that murder be committed “in an effort to conceal the commission of a crime” does not violate due process because legislature failed to define “conceal” or “effort.” State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

 

      Where sheriff’s deputies were not “directly or indirectly involved to a sufficient extent in initiating, planning, controlling or supporting” jailhouse informant’s information gathering, statements made to him by defendant were not subject to exclusion under this section. State v. Smith, 310 Or 1, 791 P2d 836 (1990)

 

      Defendant was not denied right to jury trial in stipulated facts trial when judge fully informed defendant of consequences of stipulation and defendant indicated he understood those consequences before entering into stipulation. State v. Wright, 109 Or App 495, 820 P2d 824 (1991)

 

      When record shows enhanced sentence was imposed as punishment for defendant’s refusal to plead guilty, case must be remanded for resentencing. State v. Fitzgibbon, 114 Or App 581, 836 P2d 154 (1992); State v. Qualey, 138 Or App 74, 906 P2d 835 (1995)

 

      District attorney’s policy to not plea bargain aggravated murder cases was permissible. State v. McDonnell, 313 Or 478, 837 P2d 941 (1992)

 

      Terms “confined” and “otherwise in custody” used in ORS 163.095 are not unconstitutionally vague. State v. Langley, 314 Or 247, 839 P2d 692 (1992), on reconsideration 318 Or 28, 861 P2d 1012 (1993)

 

      Defendant intentionally waived right to appear at trial by failing to appear after signing conditional release agreement that case could be tried without defendant present. State v. Peters, 119 Or App 269, 850 P2d 393 (1993)

 

      Classification of in rem forfeiture proceeding as punitive for double jeopardy purposes does not mean that other criminal proceeding rights apply. City of Lake Oswego v. $23,232.23 in Cash, 140 Or App 520, 916 P2d 865 (1996), Sup Ct review denied

 

      Use of foreign convictions in assessing criminal history is not affected by whether foreign trial proceeding met Oregon constitutional requirements. State v. Graves, 150 Or App 437, 947 P2d 209 (1997), Sup Ct review denied

 

      Use of jury instruction requiring that jury acquit defendant of offense charged in indictment before considering lesser included offense does not deny defendant’s right to impartial jury. State v. Horsley, 169 Or App 438, 8 P3d 1021 (2000), Sup Ct review denied

 

      Where defendant is sentenced with enhanced sentence, indictment is not required to allege facts on which sentence enhancement is based. State v. Reinke, 354 Or 98, 309 P3d 1059 (2013)

 

      Criminal defendant has right to appear free of physical restraints during guilt and penalty phases of criminal trial, and trial court must hear evidence from state and defendant on whether defendant’s risk of danger, disruption or escape justifies restraint prior to imposing restraint, although trial court may not be required to hold evidentiary hearing involving live testimony if facts and counsel’s representations are undisputed. State v. Guzek, 358 Or 251, 363 P3d 480 (2015)

 

Counsel

 

      Right to counsel

 

      Constitutional right to assistance of counsel included right to be represented by retained counsel of defendant’s own choosing. State v. Greenough, 8 Or App 86, 493 P2d 59 (1972)

 

      Trial court erred in appointing counsel where criminal defendant made an effective demand to represent himself. State v. Verna, 9 Or App 620, 498 P2d 793 (1972)

 

      Court did not abuse its discretion by requiring defendant to conduct his own defense after defendant chose to conduct his own defense and was allowed to consult with counsel. State v. Whitlow, 13 Or App 607, 510 P2d 1354 (1973), Sup Ct review denied

 

      Trial court has discretion to deny request for change of counsel immediately preceding trial without showing of substantial cause. State v. Pflieger, 15 Or App 383, 515 P2d 1348 (1973), Sup Ct review denied

 

      If in-custody defendant states that he wants an attorney, interrogation must cease until attorney is present. State v. Suggs, 13 Or App 484, 511 P2d 405 (1973); State v. Ayers, 16 Or App 300, 518 P2d 190 (1974), Sup Ct review denied

 

      After one continuance and agreement to no further postponement, failure by defendant to be prepared with counsel at trial because of his dismissal of counsel one day prior to trial was not denial of his right to counsel. State v. Page, 18 Or App 109, 523 P2d 1291 (1974), Sup Ct review denied

 

      Statement by criminal defendant that he will not sign waiver of constitutional rights until a lawyer is present, is an express request for lawyer and interrogation must be discontinued until counsel is made available. State v. Nicholson, 19 Or App 226, 527 P2d 140 (1974), Sup Ct review denied

 

      Due process does not require the appointment of “independent counsel” to represent the child in every adoption or termination of parental rights proceeding. F. v. C., 24 Or App 601, 547 P2d 175 (1976)

 

      Right to counsel extends to all offenses that have character of criminal prosecution. Brown v. Multnomah County Dist. Ct., 280 Or 95, 570 P2d 52 (1977)

 

      Relevant factors in determining whether proceeding is criminal are: 1) type of offense; 2) prescribed penalty; 3) collateral consequences; 4) punitive significance; and 5) pretrial practices. Brown v. Multnomah County Dist. Ct., 280 Or 95, 570 P2d 52 (1977); Johnson v. McGrew, 137 Or App 55, 902 P2d 1209 (1995), Sup Ct review denied

 

      Defendant does not have right to be represented by counsel and simultaneously to represent self in court. State v. Reynolds, 43 Or App 619, 603 P2d 1223 (1979), aff’d 289 Or 533, 614 P2d 1158 (1980); State v. McDonnell, 313 Or 478, 837 P2d 941 (1992); State v. Dell, 156 Or App 184, 967 P2d 507 (1998), Sup Ct review denied

 

      Where identified attorney is actually available to provide initial assistance and advice, whether or not attorney is retained by suspect, police must inform suspect of attorney’s efforts to reach suspect. State v. Haynes, 288 Or 59, 602 P2d 272 (1979)

 

      Where defendant took reasonable steps to retain chosen counsel and his failure to retain him at earlier date was due to unexplained delay in transfer of funds under prison control, it was error for court to deny defendant’s motion for continuance and removal of court-appointed attorney. State v. Zaha, 44 Or App 103, 605 P2d 306 (1980)

 

      Where trial court rejected defendant’s request to be represented by persons not members of state bar but never determined whether defendant would have preferred retaining appointed counsel rather than representing himself, defendant was denied right to counsel. State v. Rocha, 48 Or App 1017, 618 P2d 475 (1980)

 

      This section does not require appointment of counsel for indigent defendants in habitual traffic offender proceedings conducted pursuant to [former] ORS 484.700 to 484.750. State v. Rhoades, 54 Or App 254, 634 P2d 806 (1981), Sup Ct review denied

 

      Defendant charged with traffic crime has right to court appointed counsel even if jail sentence is not imposed. Gaffey v. State of Oregon, 55 Or App 186, 637 P2d 634 (1981)

 

      Where evidentiary scheme in Oregon paternity cases did not create presumption against defendant, based on mother’s testimony, which could not be rebutted by defendant’s own testimony, due process did not require appointment of attorney for defendant. State ex rel Adult & Fam. Serv. v. Stoutt, 57 Or App 303, 644 P2d 1132 (1982), Sup Ct review denied

 

      Counsel may not be barred from attendance at presentence interview. State ex rel Russell v. Jones, 293 Or 312, 647 P2d 904 (1982)

 

      Prohibitions placed on state’s contact with represented defendant did not extend to investigation of factually unrelated criminal episodes. State v. Sparklin, 296 Or 85, 672 P2d 1182 (1983)

 

      Defendant who had been arraigned and had requested counsel could not validly waive right to counsel under this section in police initiated interrogation when counsel has not yet been retained or appointed. State v. Milek, 82 Or App 88, 727 P2d 164 (1986)

 

      ORS 135.050, interpreted in light of this section, requires that indigent defendant who requests counsel have aid of court-appointed counsel in DUII diversion termination hearing. State v. Vest, 88 Or App 101, 744 P2d 288 (1987)

 

      Defendant who has been charged, but not yet arraigned, who has not retained counsel nor had counsel appointed and who has been advised of right to counsel and right not to incriminate self, may waive right to counsel without first consulting attorney. State v. Lopez, 88 Or App 347, 745 P2d 788 (1987), Sup Ct review denied

 

      Right to counsel did not prevent admission of statements volunteered by defendant to police officers in absence of defendant’s attorney, when defendant initiated contact with police officers through third party. State v. Foster, 303 Or 518, 739 P2d 1032 (1987)

 

      Where court does not adequately inform defendant of risks of self-representation so as to allow intelligent and understanding choice, decision of defendant to proceed without attorney is not adequate waiver of counsel. State v. Boswell, 92 Or App 652, 759 P2d 276 (1988); State v. Carter, 107 Or App 48, 810 P2d 872 (1991); State v. Meyer, 116 Or App 80, 840 P2d 1357 (1992); State v. Curran, 130 Or App 124, 880 P2d 956 (1994); State v. Kramer, 152 Or App 519, 954 P2d 855 (1998)

 

      Person taken into formal custody on potentially criminal charge is involved in “criminal prosecution” for purposes of this section and for that reason arrested driver has right, on request, to reasonable opportunity to obtain legal advice before deciding whether to submit to breathalyzer exam. State v. Spencer, 305 Or 59, 750 P2d 147 (1988); State v. Dinsmore, 200 Or App 432, 116 P3d 226 (2005), aff’d 342 Or 1, 147 P3d 1146 (2006)

 

      Right to counsel under this section did not attach when officer requested defendant to take field sobriety tests. State v. Foster, 95 Or App 144, 768 P2d 416 (1989)

 

      Defendant must be permitted to state reasons why counsel should be discharged and new counsel appointed. State v. McCabe, 103 Or App 426, 797 P2d 406 (1990)

 

      Imprisoned person does not have constitutional right to attorney in habeas corpus proceeding. McClure v. Maass, 110 Or App 119, 821 P2d 1105 (1991), Sup Ct review denied

 

      If counsel discerns no meritorious issues for appeal, counsel need not seek to withdraw on that basis, but, if counsel does seek to do so, Court of Appeals need not permit such withdrawal, although such withdrawal does not violate United States Constitution as long as eight specified factors are met. State v. Balfour, 311 Or 434, 814 P2d 1069 (1991)

 

      Although defendant has no right to have lawyer present during breath test, defendant has right to call attorney before deciding whether to take test, and when police officer did not allow defendant to call attorney, officer violated defendant’s right to counsel. State v. Trenary, 114 Or App 608, 836 P2d 739 (1992), aff’d 316 Or 172, 850 P2d 356 (1993); State v. Ashley, 137 Or App 561, 907 P2d 1120 (1995)

 

      Trial court may accept defendant’s proffered waiver of counsel only upon finding that defendant knows of right to counsel or, if indigent, right to court-appointed counsel and that defendant intentionally relinquishes or abandons right. State v. Meyrick, 313 Or 125, 831 P2d 666 (1992); State v. Jackson, 172 Or App 414, 19 P3d 925 (2001)

 

      Where defendant was interrogated concerning one crime while represented by counsel appointed with respect to unrelated crime and Miranda waivers were voluntary, waivers were not obtained in violation of right to counsel under this section. State v. Davis, 313 Or 246, 834 P2d 1008 (1992)

 

      Record should indicate specific concerns or conflict defendant had with court-appointed attorney, court’s evaluation of merits of complaint and whether defendant understood implications of proceeding without counsel. State v. Bronson, 122 Or App 493, 858 P2d 467 (1993)

 

      Where defendant specifically refused to take lie detector test without attorney present, invocation of right to counsel was limited and later interrogation not using lie detector was proper. State v. Zelinka, 130 Or App 464, 882 P2d 624 (1994), Sup Ct review denied

 

      Where attorney has invoked suspect’s right to remain silent, police must honor right to remain silent and provide suspect with opportunity to consult with attorney or to waive invocation of right to consult with attorney after being fully informed of situation. State v. Simonsen, 319 Or 510, 878 P2d 409 (1994)

 

      Suspect’s communication with attorney must be subjected to least restrictive limitation on privacy that is consistent with security or other legitimate concerns. State v. Penrod, 133 Or App 454, 892 P2d 729 (1995); State v. Goss, 161 Or App 243, 984 P2d 938 (1999)

 

      Police are not required to delay breath test for drunk driving suspect beyond pretest observation period if observation period provides adequate opportunity for suspect to contact attorney. State v. Brazil-Kay, 137 Or App 589, 907 P2d 1116 (1995), Sup Ct review denied

 

      Where defendant is interrogated about crime unrelated to charged offense, evidence of unrelated crime derived during interrogation may not be considered during charged-offense sentencing unless defense counsel was afforded opportunity to be present at interrogation. State v. Hill, 142 Or App 189, 921 P2d 969 (1996), Sup Ct review denied

 

      Inquiry whether opportunity to contact attorney would be provided prior to later interrogation session did not qualify as unequivocal request for attorney. State v. Charboneau, 323 Or 38, 913 P2d 308 (1996)

 

      Tape recording of defendant’s telephone conversation with attorney had impermissible chilling effect on right to communicate with counsel, whether or not authorities listened to conversation or played tape. State v. Riddle, 149 Or App 141, 941 P2d 1079 (1997), Sup Ct review denied

 

      Where individual invokes right to consult with counsel, individual has right to confer privately with counsel regardless of whether individual makes separate request for privacy. State v. Durbin, 335 Or 183, 63 P3d 576 (2003); State v. Lile, 267 Or App 712, 341 P3d 162 (2014), Sup Ct review allowed

 

      Right of person charged with driving under influence of intoxicants to consult with attorney prior to taking breath test is dependent upon person making request to consult with attorney. State v. Schneider, 201 Or App 546, 120 P3d 16 (2005), on reconsideration 204 Or App 710, 131 P3d 842 (2006), Sup Ct review denied

 

      Right of driver arrested for driving under influence of intoxicants to have reasonable opportunity for consulting counsel before deciding whether to take breath test does not give indigent driver right to have counsel provided for consultation. State v. Smalls, 201 Or App 652, 120 P3d 506 (2005), Sup Ct review denied

 

      Where defendant seeks to suppress statements made during custodial interrogation, burden of persuasion regarding whether defendant was properly afforded right to counsel remains at all times with state rather than shifting to defendant. State v. James, 339 Or 476, 123 P3d 251 (2005)

 

      Where defendant makes collateral attack on validity of prior uncounseled conviction, defendant has burden of proving by preponderance of evidence that earlier conviction was obtained in violation of constitutional right to counsel. State v. Probst, 339 Or 612, 124 P3d 1237 (2005)

 

      Whether request for counsel is unequivocal depends on whether reasonable police officer, under totality of circumstances existing at time of request, would have understood suspect was invoking right to counsel. State v. Dahlen, 209 Or App 110, 146 P3d 359 (2006), modified 210 Or App 362, 149 P3d 1234 (2006)

 

      Where defendant initiates conversation with police officers after right to counsel has attached, police are not required to notify counsel before proceeding. State v. Randant, 341 Or 64, 136 P3d 1113 (2006)

 

      Where defendant initiates conversation with police officers after right to counsel has attached, defendant’s knowledge of Miranda rights is sufficient to ensure waiver of counsel is knowing one. State v. Randant, 341 Or 64, 136 P3d 1113 (2006)

 

      Where behavior of officer caused defendant to reasonably believe officer intended to remain in room during phone call to attorney, failure to inform defendant that privacy would be given denied right to counsel. State v. Sawyer, 221 Or App 350, 190 P3d 409 (2008)

 

      Where defendant unequivocally invokes right to counsel, defendant actions that indicate willingness and desire to continue with investigation are sufficient to waive right. State v. Kramyer, 222 Or App 193, 194 P3d 156 (2008)

 

      Right to confidential legal advice is triggered by request for legal advice, not by request to talk with individual who is member of bar association. State v. Burghardt, 234 Or App 61, 227 P3d 783 (2010), Sup Ct review denied

 

      Where suspect does not invoke right to consult with counsel, police are not required to inform suspect of right to have privacy during consultation. State v. Mendoza, 234 Or App 366, 228 P3d 635 (2010)

 

      Presence of counsel is required if represented defendant is questioned about criminal matter that is factually related to offense with which defendant has been charged. State v. Potter, 245 Or App 1, 260 P3d 815 (2011), Sup Ct review denied

 

      Indicia of factually related criminal episodes include overlapping evidence, commission of crimes in same jurisdiction, commission of crimes within close temporal proximity to one another and investigation by collaborating investigators. State v. Potter, 245 Or App 1, 260 P3d 815 (2011), Sup Ct review denied

 

      Right to counsel does not bar police from questioning defendant outside presence of counsel before defendant has been taken into formal custody. State v. Davis, 350 Or 440, 256 P3d 1075 (2011)

 

      For defendant to waive right to counsel by misconduct, court must give defendant notice that continuation of misconduct will result in defendant having to proceed pro se. State v. Langley, 351 Or 652, 273 P3d 901 (2012)

 

      Right to counsel includes right to privacy when communicating with attorney through attorney’s representative. Where officer stood near defendant while defendant sought legal advice about whether to submit to breath test and defendant was speaking with attorney’s receptionist, officer violated defendant’s right to counsel. State v. Lile, 267 Or App 712, 341 P3d 162 (2014), Sup Ct review allowed

 

      Where defendant demonstrated lack of English language skills, mental health issues and lack of basic understanding of courtroom procedure and possible legal consequences of trial outcome in state’s favor, defendant did not substantially appreciate material risks of self-representation and trial court erred under this provision in accepting defendant’s waiver of counsel. State v. Kim, 271 Or App 196, 350 P3d 473 (2015)

 

      Because crimes were interrelated, involved many of same witnesses and arose from same investigation, it was reasonably foreseeable to officer that officer’s questioning about uncharged conduct would elicit incriminating information about charged offense to which right to counsel had already attached; thus, evidence obtained as result of that questioning must be excluded. State v. Prieto-Rubio, 359 Or 16, 376 P3d 255 (2016)

 

      Adequate counsel

 

      Trial court’s refusal to consider presentence report before imposition of sentence does not constitute denial of defendant’s right to effective counsel. State v. Watson, 26 Or App 59, 551 P2d 1314 (1976)

 

      Defense counsel’s decision not to more fully develop murder/suicide theory by examination and evidence did not constitute suspension of professional representation so as to deny petitioner due assistance of counsel. Krummacher v. Gierloff, 290 Or 867, 627 P2d 458 (1981)

 

      Where alien defendant, prior to entry of guilty plea, was instructed by court to read and review with counsel petition to enter plea, which included warning of possible deportation upon conviction, defendant acknowledged having done so, and court so found prior to entry of plea, defendant could not assert at post conviction proceeding that he did not review petition with counsel. Lyons v. Pearce, 298 Or 554, 694 P2d 969 (1985)

 

      Where, at time of trial, question of instructions for lesser-included offenses had been settled for three years, effective counsel would have been aware of proper instructions and excepted to instructions given and counsel’s lack of awareness of controlling precedent and failure to except was failure to use professional skill required for constitutionally adequate defense. Peaslee v. Keeney, 81 Or App 488, 726 P2d 398 (1986), Sup Ct review denied

 

      Where defendant notified court of conflict with appointed counsel and requested new counsel, court’s failure to inquire into nature of conflict and evaluate merits of complaint resulted in court having no basis to determine whether constitutional right to effective counsel was being honored. State v. Heaps, 87 Or App 489, 742 P2d 1188 (1987); State v. Coffey, 158 Or App 112, 972 P2d 1219 (1999)

 

      Failure of counsel to advise criminal defendant of possibility of minimum sentence prior to defendant’s guilty plea is inadequate assistance of counsel and is substantial denial of constitutional right that voids conviction. Hartzog v. Keeney, 304 Or 57, 742 P2d 600 (1987), as modified by Moen v. Peterson, 312 Or 503, 824 P2d 404 (1991)

 

      Where counsel based decision not to attempt to locate witnesses to offense upon counsel’s generalizations about human conduct rather than on specific facts of case, counsel’s decision was suspension of professional judgment that denied defendant adequate representation of counsel. Mellem v. State of Oregon, 106 Or App 642, 809 P2d 1348 (1991)

 

      Although trial counsel’s failure to advise criminal defendant of possibility of minimum sentence under ORS 144.110 before entry of guilty plea may constitute ineffective assistance of counsel under this section, where petitioner for post-conviction relief did not raise issue in first post-conviction hearing, he could not attack underlying conviction on that basis in second post-conviction hearing. Martz v. Maass, 110 Or App 391, 822 P2d 750 (1991), Sup Ct review denied

 

      In post-conviction proceeding claiming inadequate assistance of counsel, petitioner must show by preponderance of evidence that, had counsel informed him of possibility of minimum sentence, or had he otherwise been aware of it, he would not have pleaded no contest. Moen v. Peterson, 312 Or 503, 824 P2d 404 (1991)

 

      Although inaccurate information from police officer might influence attorney’s advice to client concerning submitting to breath test, it is not violation of defendant’s rights under circumstances of this case. State v. Herndon, 116 Or App 457, 841 P2d 667 (1992)

 

      Where defendant became dissatisfied with counsel’s strategy, trial court did not abuse discretion by denying defendant’s motion for substitution of counsel. State v. Langley, 314 Or 247, 839 P2d 692 (1992), on reconsideration 318 Or 28, 861 P2d 1012 (1993)

 

      Where petitioner was convicted in stipulated facts trial, relevant inquiry for effective assistance of counsel is whether counsel adequately assisted petitioner in making informed choice about stipulated trial. Bickford v. Bachik, 120 Or App 315, 852 P2d 878 (1993)

 

      Assistance of counsel was not inadequate where attorney failed to inform defendant that if defendant pleaded guilty to DUII and subsequently drove while suspended, resulting charge could be prosecuted as felony. Chew v. State of Oregon, 121 Or App 474, 855 P2d 1120 (1993), Sup Ct review denied

 

      Neither Oregon Constitution nor United States Constitution requires counsel to inform defendant of collateral consequences of plea. Chew v. State of Oregon, 121 Or App 474, 855 P2d 1120 (1993), Sup Ct review denied

 

      Defense counsel obligation to advise defendant of consequences of conviction is less extensive for agreement to stipulated facts trial than for entry of guilty plea. Turczynski v. Grill, 134 Or App 351, 895 P2d 787 (1995)

 

      Where, after due diligence, appellate counsel is unable to designate possible contention of error justifying provision of transcript at public expense, transcript is not required for representation by appellate counsel to be constitutionally adequate. State v. Richter, 140 Or App 1, 914 P2d 703 (1996), Sup Ct review denied

 

      Failure of trial counsel to make adequate investigation does not entitle defendant to post-conviction relief absent showing that failure tended to affect result of trial. Carias v. State of Oregon, 148 Or App 540, 941 P2d 571 (1997); Short v. Hill, 195 Or App 723, 99 P3d 311 (2004), Sup Ct review denied

 

      Where legal principle is well established by precedent, failure of counsel to assert principle is inadequate representation, notwithstanding that precedent does not apply principle to particular issue at hand. Lovelace v. Zenon, 159 Or App 158, 976 P2d 575 (1999), Sup Ct review denied

 

      Failure of trial counsel to object to jury instruction that violated requirement that jury concur on facts establishing elements of crime constituted inadequate assistance of counsel. Bogle v. Armenakis, 172 Or App 55, 18 P3d 390 (2001)

 

      Failure to investigate possibility of using available defense tactic during retrial of case did not constitute inadequate assistance of counsel where tactic was unsuccessful in previous trial. Gorham v. Thompson, 332 Or 560, 34 P3d 161 (2001)

 

      Evidence presented at post-conviction hearing but not presented at trial due to inadequate counsel need not be conclusive for evidence to have tendency to affect result of trial. Lichau v. Baldwin, 333 Or 350, 39 P3d 851 (2002)

 

      In considering defendant’s motion for substitution of appointed counsel, court must consider any evidence offered by defendant in support of motion, but is not required to inquire or conduct hearing on motion. State v. Smith, 339 Or 515, 123 P3d 261 (2005)

 

      Counsel informing defendant of possible collateral effects of conviction must state maximum consequences, but need not estimate likelihood that consequences will occur. Gonzalez v. State of Oregon, 340 Or 452, 134 P3d 955 (2006)

 

      Where case law is ambiguous, counsel was inadequate if counsel did not raise issue and benefits of raising issue are so obvious that any lawyer exercising reasonable professional skill and judgment would have done so. Ross v. Hill, 235 Or App 340, 231 P3d 1185 (2010), Sup Ct review denied

 

      Where counsel’s advice regarding benefits and detriments of stipulated-facts trial is incorrect, such incorrect advice constitutes deficient performance; in giving such incorrect advice counsel has failed to adequately assist client in making informed choice about stipulated-facts trial. Koch v. State of Oregon, 252 Or App 657, 288 P3d 582 (2012)

 

      Trial counsel is not inadequate for failing to present “culturally attuned” defense for client who is member of Native American tribe where that defense is inconsistent with other evidence. Lotches v. Premo, 257 Or App 513, 306 P3d 768 (2013), Sup Ct review denied

 

Venue

 

      Testimony of arresting officer that he was Marion County Sheriff’s Deputy and was in uniform in routine patrol in Hubbard, Oregon at time of arrest, though officer did not testify that Hubbard is located in Marion County, was sufficient to support finding that offense was committed in Marion County. State v. Kacalek, 34 Or App 967, 580 P2d 205 (1978)

 

      Where defendant escaped from confinement in work camp located in Tillamook County, venue was proper only in that county, so prosecuting defendant in Marion County, where he had been confined prior to transfer, was improper. State v. Dillenburg, 49 Or App 911, 621 P2d 1193 (1980)

 

      Where traffic offense of DUII was prosecuted as misdemeanor because defendant had been convicted of same offense within 5 years, thus creating a criminal prosecution, defendant had absolute right under this section to change of venue to county where offense was committed. State v. Camp, 53 Or App 599, 633 P2d 12 (1981)

 

      Venue on charge of possession of restricted weapon was proper in Multnomah County, where defendant had been taken after being picked up by police in Clackamas County, because, although in custody, defendant exercised control of weapon until it was taken from him in Multnomah County. State v. Guest, 103 Or App 594, 798 P2d 708 (1990), Sup Ct review denied

 

      Alternative venue provide by ORS 131.325 does not violate this section. State v. Rose, 117 Or App 270, 844 P2d 194 (1992), Sup Ct review denied

 

      Where there was no evidence, nor any suggestion, that trial was media circus such as would have prevented fair trial, denial of motion to change venue based on argument of prejudicial pretrial publicity was not abuse of trial court’s discretion. State v. Rogers, 313 Or 356, 836 P2d 1308 (1992)

 

      Where four jurors recalled reading newspaper articles about defendant but did not recall much detail from articles and jurors stated they could decide case based on evidence at trial and defendant passed each juror for cause and did not exhaust peremptory challenges, defendant obtained fair and impartial trial. State v. Langley, 314 Or 247, 839 P2d 692 (1992), on reconsideration 318 Or 28, 861 P2d 1012 (1993)

 

      Reference to unique facilities and roadways without identifying county where located was insufficient as circumstantial evidence establishing venue. State v. Tirado, 118 Or App 294, 846 P2d 1201 (1993)

 

      Where record showed that judge heard answer establishing venue, inaudible nature of answer on tape recording of testimony did not require overturning conviction. State v. Post, 126 Or App 446, 868 P2d 1366 (1994), Sup Ct review denied

 

      Evidence establishing county in which charged offense was committed is not necessary element of proof in juvenile delinquency proceedings. State ex rel Juv. Dept. v. Smith, 126 Or App 646, 870 P2d 240 (1994)

 

      Criminal contempt proceeding is not subject to venue requirements applicable to criminal proceedings. Bachman v. Bachman, 171 Or App 665, 16 P3d 1185 (2000), Sup Ct review denied

 

      That defendant’s trial will be held in county in which offense took place is guaranteed right, but right may be forfeited if defendant does not assert it before jury is empaneled in jury trial or before court begins to hear evidence in bench trial. State is not required to prove venue as material allegation. State v. Mills, 354 Or 350, 312 P3d 515 (2013)

 

Jury

 

      A unanimous jury is not required under this section or the United States Constitution. State v. Marsh, 260 Or 416, 490 P2d 491 (1971), cert. denied, 406 US 974

 

      A unanimous verdict is not required under the United States Constitution. Apodaca v. Ore., 92 S Ct 1628, 406 US 404, 32 L Ed 2d 184 (1972)

 

      Trial court could require defendant to be tried by jury despite defendant’s insistence on being tried by court. State v. Carr, 10 Or App 375, 499 P2d 832 (1972), Sup Ct review denied

 

      A jury of fewer than 12 may not be used in criminal cases unless both defendant and state consent thereto. State ex rel Smith v. Sawyer, 263 Or 136, 501 P2d 792 (1972)

 

      Waiver of jury trial while defendant was under judicial declaration of incompetency was denial of his constitutional right to trial by jury. Sinclair v. Cupp, 460 F2d 296 (1972)

 

      Verdict of jury of fewer than 12 members must be unanimous. State v. Johnson, 13 Or App 79, 508 P2d 840 (1973)

 

      Defendant raising defense of mental disease or defect was not entitled to bifurcated trial, with separate factfinders on issues of guilt and responsibility, in order to preserve his privilege against self-incrimination and right to fair trial. State ex rel Johnson v. Dale, 277 Or 359, 560 P2d 650 (1977)

 

      Child is not entitled to jury trial in juvenile court proceeding. State ex rel Juv. Dept. v. Wick, 57 Or App 336, 644 P2d 603 (1982); State ex rel Juv. Dept. v. Jackson, 122 Or App 389, 858 P2d 158 (1993), Sup Ct review denied

 

      Where no formal, written waiver of jury trial executed by defendant appeared in trial court file, reversal of conviction and remand for new trial were required. State v. Milstead, 57 Or App 658, 646 P2d 63 (1982), Sup Ct review denied; State v. Valencia, 99 Or App 589, 783 P2d 51 (1989)

 

      Contempt proceeding for failure to obey restraining order issued pursuant to Family Abuse Prevention Act is criminal proceeding but not “criminal prosecution.” State ex rel Hathaway v. Hart, 70 Or App 541, 690 P2d 514 (1984), aff’d 300 Or 231, 708 P2d 1137 (1985)

 

      This section demonstrably was not intended to require jury trial for punishment for indirect criminal contempt for violation of court orders to pay child support. State ex rel Dwyer v. Dwyer, 299 Or 108, 698 P2d 957 (1985)

 

      While amount of restitution order might be termed an element of sentencing, it is not an element of crime of assault and, therefore, defendant was not entitled to criminal jury trial under this section on issue of restitution. State v. Hart, 299 Or 128, 699 P2d 1113 (1985); State v. Stratton, 99 Or App 538, 783 P2d 41 (1989), Sup Ct review denied

 

      Where juror stated she had voted for conviction in jury room but changed vote to not guilty when jury was polled and changed vote defeated verdict reached in jury room, it was error to receive verdict. State v. De Vault, 78 Or App 307, 715 P2d 1353 (1986)

 

      State’s decision to prosecute defendant for misdemeanor in circuit rather than district court would violate, based on differing jury procedures, right to equal privileges only if defendant showed that state’s choice was based on criteria which discriminated against him individually or against class to which he belongs or that choice was purely haphazard. State v. Barfield, 79 Or App 688, 720 P2d 394 (1986)

 

      Although attorney’s statements are normally binding on client, it would be improper to presume express, knowing waiver of consent to be tried without jury from defendant’s failure to object to attorney’s actions. State v. Cordray, 91 Or App 436, 755 P2d 735 (1988)

 

      Lack of written waiver of trial by jury was error apparent on face of record warranting new trial. State v. Kendall, 96 Or App 735, 773 P2d 1362 (1989), Sup Ct review denied; State v. Huntley, 112 Or App 22, 827 P2d 918 (1992)

 

      Admission of prior criminal convictions for impeachment purposes under OEC 609, without judicial weighing of probative value against prejudice under OEC 403, does not violate right to be tried by impartial jury under this section. State v. Minnieweather, 99 Or App 166, 781 P2d 401 (1989)

 

      Trial court did not err in dismissing for cause jurors who stated unequivocally that they would not vote for death penalty under any circumstances. State v. Duvigneaud, 99 Or App 279, 781 P2d 1241 (1989), Sup Ct review denied

 

      Where purpose of voir dire examination was investigation, not persuasion, and defendant’s counsel chose not to use two opportunities to question juror fully about views on minorities and criminal justice system, defendant’s right to trial by impartial jury was not violated. State v. Nefstad, 309 Or 523, 789 P2d 1326 (1990)

 

      Exclusion of prospective jurors whose opposition to death penalty might prevent them from following court’s instructions did not deny defendant impartial jury. State v. Montez, 309 Or 564, 789 P2d 1352 (1990)

 

      Court refused to reverse conviction where defendant failed to execute written waiver of jury trial and rejected trial court’s offer to retry case to jury but sought “automatic reversal” after sentencing. State v. Lopez-Loaiza, 107 Or App 258, 812 P2d 1 (1991)

 

      Defendant intentionally waived right to jury trial by failing to appear after signing conditional release agreement allowing attorney to decide whether to try case to court. State v. Peters, 119 Or App 269, 850 P2d 393 (1993)

 

      Jurisdictional phase of juvenile delinquency proceeding is not criminal proceeding; therefore no right to jury trial exists. State ex rel Juv. Dept. v. Reynolds, 317 Or 560, 857 P2d 842 (1993)

 

      Deliberate lie during voir dire that foreclosed opportunity for additional questions to determine juror bias required new trial. State v. Holcomb, 131 Or App 453, 886 P2d 14 (1994)

 

      Defendant in capital case may not waive right to jury trial. State v. Smith, 319 Or 37, 872 P2d 966 (1994)

 

      In setting criminal history scores of adult under guidelines, adjusting history to include juvenile adjudications that would be felonies if committed by adult did not assess criminal punishment for adjudications in violation of right to jury. State v. Stewart/Billings, 321 Or 1, 892 P2d 1013 (1995)

 

      Right of defendant to waive right to jury trial prevents statutory grant to state of ability to insist on jury. State v. Baker, 328 Or 355, 976 P2d 1132 (1999)

 

      Jury instruction on consequences of guilty except for insanity verdict does not deny defendant’s right to impartial jury. State v. Amini, 331 Or 384, 15 P3d 541 (2000)

 

      Exclusion of nonregistered voters and felons from jury pool does not violate defendant’s right to have jury drawn from fair cross-section of community. State v. Compton, 333 Or 274, 39 P3d 833 (2002)

 

      Procedure for issuance of civil stalking protective order, though criminal in nature, is of type historically exempted from right to jury trial and other criminal prosecution safeguards. Delgado v. Souders, 334 Or 122, 46 P3d 729 (2002)

 

      Evidence indicating that defendant does not qualify for downward departure from sentencing guidelines is not punishment-enhancing evidence requiring determination by jury. State v. Crescencio-Paz, 196 Or App 655, 103 P3d 666 (2004), Sup Ct review denied

 

      Conducting trial in secured area of prison, combined with state’s representation that defendant was too dangerous to risk transporting to courthouse, created trial atmosphere incompatible with defendant’s right to impartial jury. State v. Cavan, 337 Or 433, 98 P3d 381 (2004)

 

      Determination of restitution amount is not increase in penalty for offense beyond prescribed statutory maximum requiring jury determination. State v. McMillan, 199 Or App 398, 111 P3d 1136 (2005)

 

      Where state presents multiple factual theories underlying charged offense or multiple counts, jury instruction must identify which factual theories and evidence pertain to each offense or count. State v. Pervish, 202 Or App 442, 123 P3d 285 (2005), Sup Ct review denied

 

      Judicial determination that defendant may not be considered for beneficial modification of presumptive sentence is not finding of fact that increases maximum penalty permitted for conviction. State v. Clark, 205 Or App 338, 134 P3d 1074 (2006), Sup Ct review denied

 

      Requirement that election to be tried by judge instead of by jury be in writing does not apply where defendant enters guilty plea. State v. Cervantes-Oropeza, 215 Or App 518, 170 P3d 1114 (2007)

 

      Unique limitation on waiver of right to jury requires that appellate court exercise power to review noncompliance. State v. Barber, 343 Or 525, 173 P3d 827 (2007)

 

      Where defendant signs jury waiver form and verbally informs court that signature indicates waiver of right to jury, failure to check box on form is not plain error that requires appellate court review. State v. Jeanty, 231 Or App 341, 218 P3d 174 (2009), Sup Ct review denied

 

      Defendant only needs to be informed of direct consequences of waiver to right to jury trial, not of collateral consequences of waiving such right. State v. Stewart, 239 Or App 217, 244 P3d 816 (2010)

 

      Anonymous jury permissible if trial court: 1) concludes that strong reason supports belief that jury needs protection; and 2) takes reasonable precautions to minimize prejudicial effect on defendant and to ensure that defendant’s fundamental rights are protected. State v. Sundberg, 349 Or 608, 247 P3d 1213 (2011)

 

      Trial court does not need to instruct jury to concur on alternative means of meeting single statutory element. State v. Pipkin, 245 Or App 73, 261 P3d 60 (2011), aff’d 354 Or 513, 316 P3d 255 (2013)

 

      Foundations for common law and constitutional safeguards against unfettered imposition of restraints on criminal accused, including (1) impingement on presumption of innocence and dignity of judicial proceedings; (2) inhibition of accused’s decision whether to take stand as witness; and (3) inhibition of accused’s consultation with his or her attorney, apply regardless of whether restraints used are visible or nonvisible. State v. Wall, 252 Or App 435, 287 P3d 1250 (2012), Sup Ct review denied

 

      Before defendant may be restrained during trial, regardless of whether restraints would be visible to trier of fact, state must adduce evidence that would permit court to find that defendant poses immediate or serious risk of committing dangerous or disruptive behavior, or that he or she poses serious risk of escape. State v. Wall, 252 Or App 435, 287 P3d 1250 (2012), Sup Ct review denied

 

      Ten-person jury provision provides for nonunanimous jury verdict when jury has 12 members and does not require minimum of 10 persons to comprise jury. State v. Sagdal, 258 Or App 890, 311 P3d 941 (2013), aff’d 356 Or 639, 343 P3d 226 (2015)

 

      Trial court must evaluate defendant’s waiver of trial by jury in context of (1) improving judicial economy, taking into account considerations of speed, economy and prosecutor’s expressed preference for or against waiver; and (2) continued protection of defendant’s rights. State v. Harrell/Wilson, 353 Or 247, 297 P3d 461 (2013)

 

      Jury trial clause does not apply to grand jury and does not require grand jury to find and plead facts on which defendant’s enhanced sentence are based. State v. Reinke, 354 Or 98, 309 P3d 1059 (2013)

 

      At least 10 jurors must agree that state has proved each legislatively defined element of crime, not just agree on outcome, to return guilty verdict for defendant, but need not agree on underlying facts essential to prove each element. State v. Pipkin, 354 Or 513, 316 P3d 255 (2013)

 

      Trial court’s instruction to jury that jury must decide whether to impose death penalty based on evidence and after considering mitigating evidence did not preclude jury from considering defendant’s allocution and was correct statement of law. State v. Guzek, 358 Or 251, 363 P3d 480 (2015)

 

Accusation

 

      An indictment or information which informs defendant of the nature and cause of the accusation is sufficient. State v. House, 260 Or 138, 489 P2d 381 (1971)

 

      If the requirements of ORS 132.550 (7) are met, the requirements of this section will also be satisfied. State v. Jim, 13 Or App 201, 508 P2d 462 (1973)

 

      Complaint charging defendant with promoting gambling in second degree was insufficient to survive demurrer when complaint merely mirrored language of statute and contained no identifying facts or acts. State v. Cooper, 78 Or App 237, 715 P2d 504 (1986)

 

      Although underlying crime of robbery requires intentional, not just knowing use of force, where indictment sufficiently alleges intent elsewhere, indictments for aggravated murder related to robbery were not defective for using term “knowingly” in reference to use of physical force. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

 

      Indictment does not need to set forth sentencing enhancement. State v. Sanchez, 238 Or App 259, 242 P3d 692 (2010), Sup Ct review denied

 

Confrontation

 

      Trial court faced with defendant who chanted continuously during time he was in courtroom did not violate defendant’s constitutional right to confront witnesses versus him when it removed him to jury room where closed circuit television system brought trial to him, and he was returned to courtroom on numerous occasions and advised that he could remain if he would cease his disruptive conduct. State v. Williams, 10 Or App 612, 501 P2d 328 (1972), Sup Ct review denied

 

      Prohibition on introduction of evidence of complainant’s prior sexual conduct was held unconstitutional as denial of right of confrontation when prior conduct was relevant in showing motive for false accusation of rape. State v. Jalo, 27 Or App 845, 557 P2d 1359 (1976)

 

      Where state did not show good cause for failure to abide by immunity agreement with a witness who claimed self-incrimination privilege at defendant’s trial, state’s introduction of witness’s previous testimony violated defendant’s right of confrontation under this section. State v. Herrera, 286 Or 349, 594 P2d 823 (1979)

 

      Complaint framed in language of ordinance was constitutionally sufficient. City of Portland v. Aziz, 47 Or App 937, 615 P2d 1109 (1980)

 

      Where hearsay testimony was necessary because hearsay declarant intended to invoke protection of Fifth Amendment to United States Constitution against self-incrimination, and where reliability could be inferred because the testimony fell within the “firmly rooted” co-conspirator exception to hearsay rule, testimony did not violate Confrontation Clause. State v. Farber, 59 Or App 725, 652 P2d 372 (1982), aff’d 295 Or 199, 666 P2d 821 (1983)

 

      Sanction procedures under ORS 135.805 to 135.873 are permissible if applied by imposing sanction that infringes least on defendant’s rights and achieves goals of discovery statute. State v. Mai, 294 Or 269, 656 P2d 315 (1982)

 

      Admissibility of Intoxilyzer certifications as public records exception to hearsay rule does not violate constitutional right to confrontation of witnesses. State v. Conway, 70 Or App 721, 690 P2d 1128 (1984), Sup Ct review denied; State v. William, 199 Or App 191, 110 P3d 1114 (2005), Sup Ct review denied

 

      Where defendant did not make plausible showing that witness would have been material and favorable, defendant’s right to confrontation was not violated by allowing illegal alien eyewitness to leave jurisdiction. State v. Vargas, 74 Or App 588, 704 P2d 125 (1985), Sup Ct review denied

 

      Stipulation by prosecutor and defense counsel that three-year old child victim of sexual abuse was incompetent to testify violated defendant’s right to confrontation under this section; the question of unavailability of hearsay declarant due to incompetency should not be left to advocates in criminal trial but should be made by the court. State v. Campbell, 299 Or 633, 705 P2d 694 (1985)

 

      Confrontation Clause requires that court permit defendant to cross-examine complaining witness in front of jury concerning other accusations she has made if: 1) she has recanted them; 2) defendant demonstrates to court that those accusations were false; or 3) there is some evidence that victim has made prior accusations that were false; unless probative value of evidence that defendant seeks to elicit on cross-examination (including probability that false accusations were in fact made) is substantially outweighed by risk of prejudice, confusion, embarrassment or delay. State v. LeClair, 83 Or App 121, 730 P2d 609 (1986), Sup Ct review denied

 

      Where court viewed videotape of doctor interviewing child victim of sexual abuse and, on basis of videotape, ruled that child was not competent to testify, defendant’s confrontation rights were violated. State v. Vosika, 83 Or App 298, 731 P2d 449 (1987)

 

      Where trial court admitted out-of-court statements by witness who did not testify at trial, defendant’s right of confrontation was not violated because witness was unavailable for defendant’s trial and statements contained adequate guarantees of trustworthiness. State v. Lissy, 85 Or App 484, 737 P2d 617 (1987), aff’d on other grounds, 304 Or 455, 747 P2d 345 (1987)

 

      Assertion of privilege against self-incrimination of Fifth Amendment to United States Constitution by witness called by defendant does not violate defendant’s confrontation rights. State v. Jones, 89 Or App 133, 747 P2d 1013 (1987), Sup Ct review denied

 

      Trial court erred in excluding evidence of Intoxilyzer test when person who administered test was not available to testify as defendant did not have right to cross-examine that person and it was sufficient that state offered testimony of person who had observed test, was licensed to administer test and could testify from personal knowledge whether test administration procedures were followed. State v. McCormack, 92 Or App 84, 756 P2d 1281 (1988), Sup Ct review denied

 

      ORS 40.460 (Oregon Evidence Code Rule 803) permits officer who testifies in criminal trial to read relevant parts of his report into record when he has insufficient present recollection to testify fully and accurately and that procedure does not violate defendant’s right to confrontation. State v. Scally, 92 Or App 149, 758 P2d 365 (1988)

 

      Exclusion of evidence of prior cocaine use by victim of alleged rape did not violate defendant’s rights under this article. State v. Smith, 101 Or App 483, 791 P2d 500 (1990)

 

      Out-of-court statements made for purposes of medical diagnosis or treatment have adequate indicia of reliability, and admission of those statements if declarant is unavailable does not violate this section. State v. Logan, 105 Or App 556, 806 P2d 137 (1991)

 

      Allowing investigating officer to remain in courtroom after trial court determined that state had established that officer’s presence was essential to prosecution under OEC 615(3) did not violate defendant’s right to cross-examine and to confront witness against him under this section. State v. Alexander, 105 Or App 566, 805 P2d 743 (1991)

 

      Exclusion of evidence inadmissible under state law does not violate Confrontation Clause if excluded evidence is lacking in reliability, and evidence secured by unlawful wiretaps was not reliable. State v. Tucker, 109 Or App 519, 820 P2d 834 (1991), Sup Ct review denied

 

      Hearsay evidence admitted as declaration against penal interest under ORS 40.465 (3)(c) does not violate Confrontation Clause if reliable, and reliability can be inferred where evidence falls within a firmly rooted hearsay exception. State v. Tucker, 109 Or App 519, 820 P2d 834 (1991), Sup Ct review denied

 

      Defendant’s right to confront witnesses was not violated when state made good-faith effort to obtain testimony of two child witnesses, but hysterical reaction of oldest child to being in same room with defendant and testimony of witnesses who had observed children demonstrated that there was no reasonable prospect of the two children being able to give usable evidence at trial. State v. Stevens, 311 Or 119, 806 P2d 92 (1991)

 

      ORS 40.460 (18a)(b), allowing admission of hearsay statement by child victim of sexual abuse, does not violate defendant’s confrontation rights. State v. Renly, 111 Or App 453, 827 P2d 1345 (1992)

 

      Defendant’s right to confront complaining witness regarding accusations does not extend to requiring pretrial testimony. State v. Rood, 118 Or App 480, 848 P2d 128 (1993), Sup Ct review denied

 

      Where declarant child testified under oath at trial and defendant had opportunity to cross-examine child about in-court statement and statements made in videotaped interview, admission of videotaped interview did not violate Confrontation Clause. State v. Barkley, 315 Or 420, 846 P2d 390 (1993)

 

      Preclusion of evidence for failure to comply with 15-day notice requirement of ORS 40.210 does not violate defendant’s confrontation right. State v. Lajoie, 316 Or 63, 849 P2d 479 (1993)

 

      Where out-of-court statement to police officer by unavailable witness occurred immediately after witness was advised of rights and prior to interrogation or transport and statement equally implicated witness and defendant in same crime, adequate indicia of reliability were present. State v. Nielsen, 316 Or 611, 853 P2d 256 (1993)

 

      Admission of out-of-court statement by codefendant refusing to testify at trial did not violate defendant’s rights where statement was redacted to eliminate references to defendant. State v. Taylor, 125 Or App 636, 866 P2d 504 (1994), Sup Ct review denied

 

      In determining that statement against penal interest by hearsay declarant had sufficient indicia of reliability to be admissible, factors considered were: 1) whether declarant was pressured to make statement; 2) timing of statement; 3) to whom statement was addressed; 4) purpose of making statement; and 5) statement content. State v. Wilson, 323 Or 498, 918 P2d 826 (1996)

 

      Where defense counsel was prohibited from cross-examining child at pretrial availability hearing, admission of hearsay statements by child concerning sexual acts violated defendant’s confrontation right. State v. Kitzman, 323 Or 589, 920 P2d 134 (1996)

 

      Where defendant retains unrestricted opportunity for effective cross-examination, inability to cross-examine in particular manner does not deny confrontation right. State v. Zinsli, 156 Or App 245, 966 P2d 1200 (1998), Sup Ct review denied

 

      Admission of hearsay statement consisting of excited utterance is not exempt from requirement that declarant be unavailable. State v. Moore, 159 Or App 144, 978 P2d 395 (1999), aff’d 334 Or 328, 49 P3d 785 (2002)

 

      Admission of hearsay confession of defendant’s accomplice did not violate Confrontation Clause when statement bore adequate indicia of reliability. State v. Jones, 171 Or App 375, 15 P3d 616 (2000), Sup Ct review denied

 

      Hearsay statement does not violate confrontation right where declarant is unavailable or is available, actually present and ready to testify. State v. Crain, 182 Or App 446, 50 P3d 1206 (2002)

 

      Confrontation right under Oregon Constitution differs in scope from confrontation right under United States Constitution with regard to admission of hearsay statements. State v. Moore, 334 Or 328, 49 P3d 785 (2002)

 

      Hearsay statement is admissible based on declarant unavailability only if state is unable to produce declarant as witness. State v. Jackson, 187 Or App 679, 69 P3d 722 (2003)

 

      Confrontation right is limited to opportunity to reasonably cross-examine witness. State v. Driver, 192 Or App 395, 86 P3d 53 (2004), Sup Ct review denied

 

      Requiring defendant to subpoena criminalist who prepared laboratory report introduced by state violates defendant’s right to confront witnesses. State v. Birchfield, 342 Or 624, 157 P3d 216 (2007)

 

      Submission of public record to establish essential fact in criminal proceeding does not violate right to confrontation. State v. Copeland, 247 Or App 362, 270 P3d 313 (2011), aff’d 353 Or 816, 306 P3d 610 (2013)

 

      Defendant’s right to confront witness was not violated where certificate of service did not contain investigative or gratuitous facts and was served by a deputy pursuant to duties of office because the certificate did not contain a witness statement. State v. Copeland, 353 Or 816, 306 P3d 610 (2013)

 

      Where defendant killed spouse, guaranteeing that spouse could not be cross-examined as witness on statements admitted under OEC 804(3)(g), defendant cannot validly claim right to meet witness face to face is violated by admission of spouse’s statements. State v. Supanchick, 354 Or 737, 323 P3d 231 (2014)

 

Public trial

 

      Provision of [former] ORS 163.475 which authorizes in camerahearing to determine admissibility of evidence of victim’s prior sexual conduct does not violate right to public trial guaranteed by this section. State v. Blake, 53 Or App 906, 633 P2d 831 (1981); State v. MacBale, 353 Or 789, 305 P3d 107 (2013)

 

      Barring public from courtroom during testimony of 11-year-old alleged rape victim where state’s showing of necessity consisted only of statement, “fewer people (victim) has to confront with this, the better” required reversal. State v. Bowers, 58 Or App 1, 646 P2d 1354 (1982)

 

      Where evidence of substantial need was absent, trial held at nonpublic location and broadcast live by television to public location did not satisfy public trial requirement. State v. Jackson, 178 Or App 233, 36 P3d 500 (2001)

 

Right of accused to be heard

 

      Preclusion of defendant’s right to present alibi defense because defendant failed to provide notice required by ORS 135.455 violated defendant’s right to be heard granted by this section. State v. Douglas, 292 Or 516, 641 P2d 561 (1982)

 

      Sentencing judge violated defendant’s state constitutional right to be heard when he summarily stopped her from saying anything further at her sentencing hearing. DeAngelo v. Schiedler, 306 Or 91, 757 P2d 1355 (1988)

 

      Right to present defense is subject to requirement that defense be one recognized by law and proven by admissible evidence. State v. Troen, 100 Or App 442, 786 P2d 751 (1990), Sup Ct review denied

 

      Nothing in this section allows defendant to appeal on ground of denial of right to speak if defendant did not object to denial in sentencing court. State v. Fern 110 Or App 185, 822 P2d 1210 (1991)

 

      This section does not guarantee right to have both defendant and defendant’s counsel ask questions on voir dire. State v. Stevens, 311 Or 119, 806 P2d 92 (1991)

 

      Sentencing scheme that restricts judicial authority to respond to defendant’s arguments in mitigation does not deny defendant right of allocution. State v. Parker, 145 Or App 35, 929 P2d 327 (1996), Sup Ct review denied

 

      Defendant has right to make unsworn statement. State v. Rogers, 330 Or 282, 4 P3d 1261 (2000)

 

      Court may restrict manner of presentation and content of defendant’s unsworn statement to ensure orderly and expeditious hearing. State v. Rogers, 330 Or 282, 4 P3d 1261 (2000)

 

      In sentencing phase of capital case tried to jury, court may not prevent defendant from presenting argument to jury regarding availability of sentencing options. State v. Rogers, 330 Or 282, 4 P3d 1261 (2000)

 

      Where releasing authority may reduce period of post-prison supervision, defendant has right to address court imposing mandatory minimum sentence. State v. Kennedy, 196 Or App 681, 103 P3d 660 (2004)

 

      Where court imposes written sentence that is more severe than oral proposed sentence, statement of proposed sentence in presence of defendant does not satisfy right of defendant to be present and to be heard when sentenced. State v. Jacobs, 200 Or App 665, 117 P3d 290 (2005)

 

      Right of allocution does not apply at dispositional phase of juvenile proceeding. State ex rel Juvenile Dept. v. Leach, 202 Or App 632, 123 P3d 347 (2005)

 

      Right of allocution does not apply to sentence modification proceeding where modification is administrative, as opposed to substantive, in character. State v. Mayes, 234 Or App 707, 229 P3d 628 (2010), Sup Ct review denied

 

Compulsory process

 

      Once prosecution has fulfilled affirmative duty to disclose discoverable information to defendant, defendant must make further showing of favorability and materiality before prosecution must disclose additional information. State v. Koennecke, 274 Or 169, 545 P2d 127 (1976)

 

      Defendant’s right to compulsory process was not denied where testimony of witnesses was not affected by prosecutor’s conduct in informing potential defense witnesses that he had reliable information of conspiracy to commit perjury and by having police officer issue subpoenas to witnesses to appear before grand jury the following day. State v. Huffman, 65 Or App 594, 672 P2d 1351 (1983)

 

      Only withholding of evidence that is material and favorable to criminal defendant gives rise to claim of violation of compulsory process. State ex rel Meyers v. Howell, 86 Or App 570, 740 P2d 792 (1987)

 

      Compulsory process clause does not require state to produce its witnesses for pretrial interviews with defense counsel. State ex rel Upham v. Bonebrake, 303 Or 361, 736 P2d 1020 (1987)

 

      Right to compulsory process embodied in this section does not require that district attorney affirmatively assist defense by ordering witnesses to be present for pretrial interview, nor does it vest in district attorney power to do so. State ex rel O’Leary v. Lowe, 307 Or 395, 769 P2d 188 (1989)

 

      Defendant in criminal trial for sexual abuse had no right to compel examination of genitalia of victims under this section. State v. Gallup, 108 Or App 508, 816 P2d 669 (1991)

 

      Right to compulsory process may be subordinated where legitimate state interest in excluding evidence outweighs value of evidence to defense. State v. Beeler, 166 Or App 275, 999 P2d 497 (2000), Sup Ct review denied

 

      Defendant’s constitutional right to discovery is limited to information that is both in prosecution’s possession and that is material and favorable to defendant’s guilt or punishment. State v. West, 250 Or App 196, 279 P3d 354 (2012)

 

      Defendant’s right to compulsory process was not denied where evidence in record supported finding that prosecutor’s conduct was not “improper” because prosecutor did not intend to hamper defendant’s ability to present case. State v. Mays, 269 Or App 599, 346 P3d 535 (2015), Sup Ct review denied

 

COMPLETED CITATIONS: State v. Anderson, 6 Or App 22, 485 P2d 446 (1971), Sup Ct review denied; State v. Johnson, 6 Or App 195, 487 P2d 115 (1971), Sup Ct review denied

 

ATTY. GEN. OPINIONS: Requirement for a jury trial before municipal court in which maximum sentence is imprisonment of six months or less, (1986) Vol 45, p 94

 

LAW REVIEW CITATIONS: 53 OLR 106 (1973); 10 WLJ 155, 156 (1974); 25 WLR 653 (1989); 28 WLR 127 (1991); 30 WLR 723 (1994); 36 WLR 313 (2000); 37 WLR 299 (2001); 39 WLR 557 (2003); 41 WLR 485 (2005)

 

Art. I, Section 12

 

NOTES OF DECISIONS

 

Double jeopardy

 

      Defendant’s motion for separate trials waived any double jeopardy claim. State v. Rook, 14 Or App 211, 511 P2d 1245 (1973), Sup Ct review denied; State v. Browne, 16 Or App 177, 517 P2d 1224 (1974)

 

      Intentional homicides, even if committed in course of single transaction, constitute separate offenses. State v. Rook, 14 Or App 211, 511 P2d 1245 (1973), Sup Ct review denied

 

      Reckless driving misdemeanor charge brought in district court and negligent homicide felony charge brought in circuit court arose from “same act or transaction.” State v. Leverich, 14 Or App 222, 511 P2d 1265 (1973), aff’d 269 Or 45, 522 P2d 1390 (1974)

 

      Prosecution for furnishing drugs not barred by earlier prosecution for possession of drugs where not part of the same transaction. State v. Patterson, 14 Or App 554, 513 P2d 517 (1973), Sup Ct review denied

 

      In prosecution for criminally negligent homicide, defendant was not placed in double jeopardy after having pleaded guilty for driving with suspended license at time death occurred. State v. Allen, 16 Or App 456, 518 P2d 1332 (1974), Sup Ct review denied

 

      Defense attorney’s representation to opposing counsel that he would oppose consolidation waived right to consolidate. State v. Roach, 19 Or App 148, 526 P2d 1402 (1974)

 

      Reversal and remand of conviction for new trial vitiated jeopardy incident thereto, and reindictment did not violate this section. State v. Gaylor, 19 Or App 154, 527 P2d 4 (1974); State v. Holmes, 22 Or App 23, 537 P2d 566 (1975); State v. Verdine, 290 Or 553, 624 P2d 580 (1981)

 

      Constitutional standard of “manifest necessity” and statutory standard concerning impossibility of proceeding without injustice require at least that trial not be terminated if any reasonable alternative action is possible under facts of each case. State v. Embry, 19 Or App 934, 530 P2d 99 (1974)

 

      Defendant’s rights under First, Fourth and Fifth Amendments to United States Constitution are not violated by reading his outgoing mail while he is in jail awaiting trial or by making copies of letters and turning those copies over to state for use as evidence against defendant. State v. McCoy, 270 Or 340, 527 P2d 725 (1974)

 

      Defendant’s motion to dismiss charge on basis of double jeopardy after he had been tried and convicted was properly overruled since double jeopardy clause does not attach at this stage of proceedings. State v. Haycraft, 20 Or App 28, 530 P2d 528 (1975), Sup Ct review denied

 

      Individual is not placed in double jeopardy when convicted in court and then subjected to administrative sanction for his assault in prison upon another inmate. Taylor v. Ore. State Penitentiary, 20 Or App 73, 530 P2d 526 (1975)

 

      Best time to test whether prosecution had knowledge of facts relevant to second charge at time of original prosecution is when first charge goes to trial or a guilty plea is entered. State v. Matischeck, 20 Or App 332, 531 P2d 737 (1975), as modified by 21 Or App 300, 535 P2d 102 (1975)

 

      Driving under influence of liquor and possession of drugs at same time constitute single “act or transaction.” State v. Matischeck, 20 Or App 332, 531 P2d 737 (1975), as modified by 21 Or App 300, 535 P2d 102 (1975)

 

      This provision applies in juvenile proceedings where juvenile is charged with a criminal act and is therefore subjected to possible loss of liberty. State ex rel Juvenile Dept. v. Knox, 20 Or App 455, 532 P2d 245 (1975)

 

      Constitutional prohibitions against subjecting defendant in criminal proceedings to double jeopardy apply to juvenile proceedings. State ex rel Juvenile Dept. v. Decoster, 23 Or App 179, 541 P2d 1060 (1975)

 

      When prosecution is dismissed prior to trial, jeopardy does not attach, and this section does not bar a subsequent trial for crime arising out of same criminal transaction. State v. Stover, 271 Or 132, 531 P2d 258 (1975)

 

      When facts of each charge can be explained adequately only by drawing upon facts of other charge, charges are cross-related and must be joined. State v. Boyd, 271 Or 558, 533 P2d 795 (1975)

 

      Where circumstances upon which culpability rests is possession, simultaneous possession of two distinct types of contraband constitutes unitary act or transaction with respect to which charges must be joined. State v. Boyd, 271 Or 558, 533 P2d 795 (1975)

 

      If state must prosecute for only one charge because defendant has voluntarily and unilaterally entered a plea of guilty on another charge, there can be no argument that state has harassed defendant. State v. Roach, 271 Or 764, 534 P2d 508 (1975)

 

      Where defense objected to continuance, unavailability of witnesses due to extraordinary circumstance could justify mistrial on basis of physical impossibility of proceeding. State v. Misten, 26 Or App 681, 554 P2d 584 (1976), Sup Ct review denied

 

      Where defendant objects to motion to consolidate as untimely and not allowing defendant to deliberate, defendant is not estopped from later raising double jeopardy objection to second offense. State v. Shields, 280 Or 471, 571 P2d 892 (1977)

 

      Where defendant objects to motion to consolidate based on claim of different act or series, defendant is estopped from later raising double jeopardy objection to second offense. State v. Shields, 280 Or 471, 571 P2d 892 (1977)

 

      Where, at arraignment on charges of multiple counts of theft in first degree, defendant’s attorney requested successive trial dates, state was not required to invoke ordinary motion to consolidate procedure in order to require defendant’s election for single or separate trials. State v. Gill, 32 Or App 537, 574 P2d 691 (1978), Sup Ct review denied

 

      Guilty plea to lesser of two counts charging criminal activity in drugs, entered over objection of prosecution and with defendant’s expression of desire that state be put to its proof on other count, was express waiver of jeopardy protection as to other count. State v. Flaherty, 33 Or App 251 (1978), Sup Ct review denied

 

      Where, following dismissal of probation hearing charging violation by unlawfully possessing and controlling concealable weapon, state initiated second revocation proceeding based on conviction of being ex-convict in possession of firearm, which conviction arose from same incident alleged in first revocation proceeding, probationer was not placed in “jeopardy” because revocation proceeding is not criminal adjudication. State v. Eckley, 34 Or App 563, 579 P2d 291 (1978); State v. Maricich, 101 Or App 212, 789 P2d 701 (1990)

 

      Where municipal court lacked jurisdiction to conduct trial on criminal activity in drugs, resulting from arrest for driving under the influence and related search of defendant during booking procedure, circuit court prosecution for drug charge did not violate this section. State v. Sleeper, 36 Or App 227, 584 P2d 333 (1978)

 

      Where defendant was convicted of assault, double jeopardy barred trial on first offense of driving under influence of intoxicants ([former] ORS 487.540) arising out of same act or transaction. State v. Marquette, 39 Or App 519, 592 P2d 1062 (1979)

 

      When trial judge had become so seriously ill as to be confined to a hospital, and when it was expected that he might be required to remain there for more than one day, state sustained its burden to show that there was such a “manifest necessity” as to justify the dismissal of jury and avoid bar of double jeopardy. State v. Cole, 286 Or 411, 595 P2d 466 (1979)

 

      Where jury’s inability to reach verdict was caused by bailiff’s improper remarks, defendant could not constitutionally be retried after mistrial. State v. Rathbun, 287 Or 421, 600 P2d 392 (1979)

 

      Where defendants, Yakima tribe members, were cited by both Washington and Oregon for fishing violations on Columbia River, and where defendants were convicted in Washington of fishing offenses, Oregon could not prosecute defendants for same offenses. State v. Alexander, 44 Or App 557, 607 P2d 181 (1980), aff’d 289 Or 743, 617 P2d 1376 (1981)

 

      Inadvertent mistake of bailiff in allowing jury to see defendant in handcuffs, was not of sufficient magnitude to bar retrial on double jeopardy grounds. State v. Williams, 48 Or App 319, 617 P2d 629 (1980)

 

      Where juror was properly dismissed from case and defendant desired to proceed with 11 jurors, but state insisted on its statutory right to 12 person jury, this constituted “manifest necessity” for declaration of mistrial and bar of double jeopardy was avoided. State v. McFerron, 52 Or App 325, 628 P2d 440 (1981), Sup Ct review denied

 

      Since none of elements of reckless driving are necessary to proof of charges of possession of concealed weapon or controlled substance, subsequent prosecution on possession charges would not abridge constitutional guarantee against double jeopardy. State v. Paquin, 55 Or App 676, 639 P2d 694 (1982), Sup Ct review denied

 

      Where prosecutor first learned at trial of suggestive identification procedure occurring before trial and discussed matter with detective in hallway outside courtroom in presence of other witnesses to “find out what was going on,” which resulted in mistrial, prosecutor’s conduct was not grossly negligent or deliberate attempt to interfere with trial process and retrial was not barred. State v. Oliver, 57 Or App 567, 646 P2d 107 (1982)

 

      Where prosecutor’s question of state’s witness, although improper, was found by trial court not to have been asked in bad faith, this section does not require that granting of mistrial trigger double jeopardy bar. State v. Kennedy, 61 Or App 469, 657 P2d 717 (1983), aff’d 295 Or 260, 666 P2d 1316 (1983)

 

      Retrial is barred by this section when improper official conduct is so prejudicial to defendant that it cannot be cured by means short of mistrial, and when official knows that conduct is improper and prejudicial and either intends or is indifferent to resulting mistrial reversal. State v. Kennedy, 295 Or 260, 666 P2d 1316 (1983); State v. Fortune, 112 Or App 247, 828 P2d 483 (1992), Sup Ct review denied

 

      Defendant’s request for attorney at arraignment did not activate right to presence of attorney to prevent compelled incriminating disclosures at later interrogation about factually unrelated crime. State v. Sparklin, 296 Or 85, 672 P2d 1182 (1983)

 

      This section requires transactional immunity as substitute for right not to testify against oneself. State v. Soriano, 68 Or App 642, 684 P2d 1220 (1984), aff’d 298 Or 392, 693 P2d 26 (1984)

 

      Where defendant pleaded no contest to theft in first degree by deception but, before sentencing, further evidence was presented to grand jury which returned indictment charging defendant with four additional counts of theft in first degree by deception, defendant was not placed in double jeopardy under this section. State v. Blair, 75 Or App 12, 705 P2d 752 (1985), Sup Ct review denied

 

      For purposes of determining former jeopardy under this section, guilty plea cannot be distinguished from conviction after trial. State v. Bennett, 82 Or App 419, 728 P2d 105 (1986)

 

      Where defendant made two deliveries of drugs separated by four-hour period, separate prosecutions for each delivery do not violate this section because defendant’s acts were not simultaneous and were not directed to single criminal objective even though agent who received drugs had initially ordered single quantity. State v. Hathaway, 82 Or App 509, 728 P2d 908 (1986), Sup Ct review denied

 

      Defendant would be twice put in jeopardy if state were allowed to proceed with driving while suspended charge after defendant pleaded guilty to driving under influence of intoxicants charge because defendant’s conduct consisted of single forbidden act of driving. State v. Farley, 301 Or 668, 725 P2d 359 (1986)

 

      Where defendant appealed conviction of driving while suspended on grounds he previously had been placed in jeopardy when convicted of giving false name to police officer during same criminal episode, for constitutional purposes, giving false identification was separate offense from unlawful driving because acts did not occur simultaneously and were not in pursuit of single objective. State v. Ellison, 301 Or 676, 725 P2d 363 (1986)

 

      Where trial court granted mistrial after defense counsel proclaimed in presence of jury “the prosecution is hiding all the facts from the jury...and I’m trying to bring out the truth and nothing but the truth,” further prosecution on charge did not violate defendant’s right against twice being placed in jeopardy for same offense. State ex rel Wark v. Freerksen, 84 Or App 90, 733 P2d 100 (1987), Sup Ct review denied

 

      Where defendants participated at restaurant in ongoing scheme to steal liquor sale proceeds from employer and thefts began in 1983 and continued until plan was discovered by employer in 1984, several felony theft and conspiracy indictments did not arise out of same criminal episode for purposes of double jeopardy statute. State v. Black/Tuttle, 89 Or App 359, 749 P2d 1185 (1988), Sup Ct review denied

 

      ORS 131.535, in providing that acquittal on basis of variance between accusatory instrument and proof does not constitute acquittal for double jeopardy purposes, does not violate double jeopardy clauses of Oregon and federal constitutions. State v. Helander, 92 Or App 108, 758 P2d 359 (1988)

 

      Prosecution for infraction of driving with switched plates forms no basis for asserting constitutional double jeopardy in related criminal charge. State v. Kambra, 93 Or App 156, 761 P2d 539 (1988), Sup Ct review denied

 

      Granting new trial after judgment of acquittal for lack of evidence violates principles of former jeopardy whether acquittal is pursuant to jury verdict or by order of appellate court. State v. Howley, 94 Or 3, 764 P2d 233 (1988)

 

      When defendant pled guilty on one count of criminally negligent homicide in indictment that contained four other counts, defendant waived double jeopardy rights as to those additional counts and trial court did not err when it convicted defendant on them. State v. Schaffran, 95 Or App 329, 769 P2d 230 (1989)

 

      Where defendant filed motion to dismiss first of two charges of driving under influence of intoxicants on ground of former jeopardy and two acts did not arise from “continuous and uninterrupted” conduct and constituted separate criminal episodes, trial court did not err in refusing to dismiss first charge. State v. Nguyen, 95 Or App 653, 771 P2d 279 (1989), Sup Ct review denied

 

      ORS 136.130 empowers trial judge to give dismissal of felony or Class A misdemeanor charge double jeopardy effect by entering judgment of acquittal. State v. Carrillo, 101 Or App 247, 790 P2d 1159 (1990), aff’d on other grounds, 311 Or 61, 84 P2d 1161 (1990)

 

      Where jury instruction was insufficient to cure prejudice resulting from prosecutor’s closing argument which specifically drew jury’s attention to fact that defendant did not testify, case remanded to determine whether prosecutor’s “improper conduct” bars new trial. State v. Halford, 101 Or App 660, 792 P2d 467 (1990)

 

      State is not prohibited from retrying defendant after conviction has been set aside because of procedural error in trial. State v. Mohler, 102 Or App 75, 792 P2d 1239 (1990), overruled on other grounds, 158 Or App 479, 974 P2d 783 (1999); State v. Boots, 315 Or 572, 848 P2d 76 (1993)

 

      Driver license suspension order based on previous California conviction for driving under influence of intoxicants that resulted in suspension of California driving privileges does not subject petitioner to double jeopardy because Oregon proceeding to suspend driving privileges is not “prosecution” for “offense” within meaning of this provision. Schreiber v. Motor Vehicles Division, 104 Or App 656, 802 P2d 706 (1990), Sup Ct review denied

 

      Provision for guilt phase and penalty phase in aggravated murder or death penalty prosecution does not subject defendants to former jeopardy. State v. Montez, 309 Or 564, 789 P2d 1352 (1990)

 

      Issues considered during penalty phase do not determine guilt or impose new or different sanction and therefore are not double jeopardy. State v. Montez, 309 Or 564, 789 P2d 1352 (1990)

 

      Granting defendant’s motion for judgment of acquittal during trial on sole ground that indictment did not state facts sufficient to establish crime did not bar later prosecution. State v. Wolfs, 312 Or 646, 826 P2d 623 (1992)

 

      Where inability of jury to reach verdict is not result of prosecutorial or judicial misconduct, second prosecution does not violate double jeopardy prohibition. State v. Bannister, 118 Or App 252, 846 P2d 1189 (1993)

 

      Acquittal on indicted charge does not bar state from retrying defendant on lesser included offense for which jury could not agree on verdict. State v. Perks, 118 Or App 336, 847 P2d 866 (1993), Sup Ct review denied

 

      Where defendant raised marijuana plants in one county and transplanted mature plants to second county, defendant could be tried in each county for possessing and manufacturing marijuana since defendant’s actions were not so closely linked in time, place and circumstance that complete account of one could not be related without reference to other. State v. Hunt, 119 Or App 452, 851 P2d 622 (1993)

 

      Prosecutor’s suspicion that other wrongful acts occurred did not mean that prosecutor had reasonable knowledge or that acts could have been known to prosecutor at time of first prosecution. State ex rel Juv. Dept. v. Nelson, 124 Or App 562, 863 P2d 497 (1993), Sup Ct review denied

 

      Where criminal conviction is reversed, resulting nullification of jeopardy that attached during criminal trial permits proceeding with punitive in rem forfeiture without violation of multiple prosecution prohibition. City of Lake Oswego v. $23,232.23 in Cash, 140 Or App 520, 916 P2d 865 (1996), Sup Ct review denied

 

      Oral ruling allowing motion for judgment of acquittal may be rescinded where neither court nor parties have detrimentally relied on ruling in interval between ruling and rescission. State v. Sperry, 149 Or App 690, 945 P2d 546 (1997), Sup Ct review denied

 

      Whether type of proceeding is criminal or civil is determined using same seven-factor test used under double jeopardy provision of United States Constitution. State v. James, 159 Or App 502, 978 P2d 415 (1999), Sup Ct review denied

 

      Designation of person as predatory sex offender and community notification of person’s status do not constitute punishment and therefore do not subject person to double jeopardy. Meadows v. Board of Parole and Post-Prison Supervision, 181 Or App 565, 47 P3d 506 (2002), Sup Ct review denied

 

      To determine whether ostensibly civil proceeding bars later criminal prosecution on same matter, court first determines whether legislature intended to create civil proceeding and, if so, applies four specific factors possibly indicative of criminal proceeding. State v. Selness/Miller, 334 Or 515, 54 P3d 1025 (2002)

 

      Civil forfeiture proceeding under [former] ORS chapter 475A is not sufficiently criminal in nature to bar later prosecution for prohibited conduct that justified forfeiture. State v. Selness/Miller, 334 Or 515, 54 P3d 1025 (2002)

 

      Multiple use of same facts during single trial to prove element of current offense and to enhance defendant’s sentence for offense does not violate protection against double jeopardy. State v. McCoin, 190 Or App 532, 79 P3d 342 (2003), Sup Ct review denied

 

      Less than unanimous verdict on underlying felony does not prevent unanimous verdict regarding felony murder. State v. O’Donnell, 192 Or App 234, 85 P3d 323 (2004)

 

      ORS 161.566, allowing prosecuting attorney to treat misdemeanor as Class A violation, is legislative attempt to create civil proceeding, therefore triggering application of four factor test to determine whether prosecution for violation was criminal in nature. State v. Page, 200 Or App 55, 113 P3d 447 (2005), Sup Ct review denied; State v. Hewitt, 206 Or App 680, 138 P3d 873 (2006)

 

      Where case is remanded for resentencing, empaneling jury to determine facts necessary to support sentence enhancement does not expose defendant to second prosecution for same offense. State v. Sawatzky, 339 Or 689, 125 P3d 722 (2005)

 

      Violation proceeding under ORS 813.095 for refusal to take breath test is not criminal in nature for purposes of double jeopardy. State v. Roeder, 209 Or App 199, 147 P3d 363 (2006), Sup Ct review denied

 

      Pretrial dismissal of charges with prejudice is not prosecution. State v. Norkeveck, 214 Or App 553, 168 P3d 265 (2007), Sup Ct review denied

 

      Where evidence in record supported finding that although prosecutor was relatively inexperienced and made series of mistakes that resulted in mistrial, prosecutor did not intend to cause mistrial and was not indifferent to that result; thus, retrial does not violate double jeopardy provision. State v. Mays, 269 Or App 599, 346 P3d 535 (2015), Sup Ct review denied

 

Self-incrimination

 

      Where suspect made uncoerced responses to questions, refusal to sign waiver of rights form did not constitute assertion of rights. State v. Padilla, 9 Or App 162, 496 P2d 256 (1972)

 

      On facts of this case, warnings by police officer of defendant’s right to consult with attorney prior to any questioning was adequate even though warning did not specify that defendant has right to counsel during questioning. State v. Arnold, 9 Or App 451, 496 P2d 919 (1972), Sup Ct review denied; State v. Quinn, 112 Or App 608, 831 P2d 48 (1992), Sup Ct review denied

 

      It is appropriate for post-conviction court to hear evidence of voluntariness of confession that was received under procedures subsequently declared unconstitutional when constitutional right is retroactively applied. Nunn v. Cupp, 10 Or App 528, 500 P2d 1237 (1972)

 

      It was error when reference to defendant’s invocation of privilege was not followed by curative instruction to jury, even though such instruction was given later after similar reference. State v. Hunt, 15 Or App 76, 514 P2d 1363 (1973), Sup Ct review denied

 

      Evidence relevant to voluntariness of confession should be heard by court in absence of jury. State v. Blackford, 16 Or App 217, 517 P2d 1196 (1974)

 

      While Miranda warning given at beginning of interrogation was incomplete in that it did not inform defendant that lawyer would be provided for him if he were without funds, he had been given two complete warnings within relatively short time of interrogation so that repeated warnings, while desirable, were not absolutely necessary. State v. Garrison, 16 Or App 588, 519 P2d 1295 (1974), Sup Ct review denied

 

      Although defendant was removed in place from his original interrogation and Miranda warnings were then given by officers who lacked knowledge of defendant’s previously denied request for attorney, time interval of only six hours between his original incriminating remarks and questioning by officers was insufficient to dissipate effect of tainted admissions made during the original interrogation. State v. Garrison, 16 Or App 588, 519 P2d 1295 (1974), Sup Ct review denied

 

      Once request for attorney is made, it is duty of officer to immediately discontinue questioning, and continued questioning by officer is in violation of Miranda exclusionary rule so that statements made thereafter must be suppressed. State v. Garrison, 16 Or App 588, 519 P2d 1295 (1974), Sup Ct review denied

 

      Officers did not coerce defendant’s turning over contraband to them nor his incriminating statement where officers threatened what would have been an authorized arrest of his companion and defendant chose to show them contraband in hope or belief that they would not arrest companion. State v. Bopp, 16 Or App 604, 519 P2d 1277 (1974)

 

      Substance, rather than form, is controlling element as to question of whether Miranda warnings were correctly given. State v. Bopp, 16 Or App 604, 519 P2d 1277 (1974)

 

      Incriminating statements made by defendant while in custody prior to Miranda warnings were admissible where under circumstances inquiry by police officer as to ownership of automobile merely constituted routine administrative questioning. State v. Cobb, 22 Or App 510, 539 P2d 1140 (1975)

 

      Although this provision against compulsory self-incrimination exists, Oregon court holding that incriminating statements obtained by police after defendant had indicated desire to call attorney were not admissible for impeachment purposes was reviewable by United States Supreme Court where case was decided by Oregon Court on Fifth and Fourteenth Amendment to United States Constitution grounds and not those within this section. Oregon v. Hass, 420 US 714, 95 S Ct 1215, 43 L Ed 2d 570 (1975)

 

      Defendant’s answers given during custodial interrogation without Miranda warning were not admissible. State v. Gill, 24 Or App 541, 546 P2d 786 (1976)

 

      Instruction adequately advised jury that it was not to presume any fact against defendant for failure to take witness stand. State v. Dillon, 24 Or App 695, 546 P2d 1090 (1976)

 

      On-scene questioning as part of investigation into suspicious activity is not custodial interrogation. State v. Egger, 24 Or App 927, 547 P2d 643 (1976), Sup Ct review denied

 

      Admission into evidence of inculpatory statements made by defendant was held not violative of Miranda since defendant was not in custody when he gave his active cooperation and consent. State v. Gaylor, 24 Or App 933, 547 P2d 651 (1976)

 

      Following testimony of defendant and his psychiatrist, rebuttal testimony by state’s psychiatrist including explanation that defendant had refused to talk with him without his attorney present and, when attorney was present, defendant had refused to discuss alleged crime, was held admissible. State v. Smallwood, 25 Or App 251, 548 P2d 1346 (1976), aff’d 277 Or 503, 561 P2d 600 (1977)

 

      Miranda warnings need not be given by a defendant’s own psychiatrist prior to examination. State v. Eichenberger, 25 Or App 507, 549 P2d 1300 (1976)

 

      Testimony at parole revocation hearing may be used by state at later criminal trial without benefit of “use immunity” doctrine concerning self-incrimination warnings. State v. Randall, 27 Or App 869, 557 P2d 1386 (1976)

 

      Defendant raising defense of mental disease or defect was not entitled to bifurcated trial, with separate factfinders on issues of guilt and responsibility, in order to preserve his privilege against self-incrimination and right to fair trial. State ex rel Johnson v. Dale, 277 Or 359, 560 P2d 650 (1977)

 

      Compulsory psychiatric examination by state’s psychologist may not require defendant to answer questions concerning events related to alleged crime. State ex rel Johnson v. Woodrich, 279 Or 31, 566 P2d 859 (1977)

 

      Where defendant, accused of shoplifting, did not offer same explanation at trial as that given to private security guards when apprehended, when she would reasonably have been expected to do so, this section did not prohibit admission of this fact. State v. Pickett, 37 Or App 239, 586 P2d 824 (1978)

 

      Reference to incriminating evidence to see if suspect will attempt explanation is equivalent to direct question. State v. Rodriguez, 37 Or App 355, 587 P2d 487 (1978), Sup Ct review denied

 

      In adopting ORS 164.405 and 164.415 (robbery), legislature intended to continue to permit juries to infer from fact that gun used in robbery was pointed at victim within firing range that it was loaded gun, and such inference does not shift burden of proof to defendant or violate his privilege against self-incrimination. State v. Vance, 285 Or 383, 591 P2d 355 (1979)

 

      Where identified attorney is actually available to provide initial assistance and advice, whether or not attorney is retained by suspect, police must inform suspect of attorney’s efforts to reach suspect. State v. Haynes, 288 Or 59, 602 P2d 272 (1979)

 

      Where defendant was at hospital emergency room of own volition, had friends and family present, was not placed under arrest and left hospital without police interference, he was not in custody within meaning of Miranda. State v. Tyson, 56 Or App 777, 643 P2d 396 (1982)

 

      Confession resulting from promise of treatment in lieu of prosecution is involuntary. State v. Capwell, 64 Or App 710, 669 P2d 808 (1983); State ex rel Juv. Dept. v. S.C.G., 77 Or App 543, 713 P2d 689 (1986); State v. Pollard, 132 Or App 538, 888 P2d 1054 (1995)

 

      Where psychiatric examination of defendant is made on behalf of state, defendant must be informed of right to have legal counsel present during examination and that results of examination may be used against defendant. State v. Mains, 295 Or 640, 669 P2d 1112 (1983)

 

      If defendant is represented by counsel, psychiatrist acting on behalf of state need not inform defendant of right to counsel. State v. Mains, 295 Or 640, 669 P2d 1112 (1983)

 

      If defendant’s legal counsel is present at examination, psychiatrist acting on behalf of state need not inform defendant of constitutional rights. State v. Mains, 295 Or 640, 669 P2d 1112 (1983)

 

      Motion to suppress admissions was improperly granted where defendant, who had been granted immunity against prosecution of previous crime, could not have reasonably believed she could participate in later crime in course of activities as informant. State v. Kahut, 71 Or App 243, 692 P2d 138 (1984), Sup Ct review denied

 

      Under Oregon Constitution, only transactional immunity is permissible and lesser statutory immunity of use and derivative use fails to meet requirements of Constitution. State v. Soriano, 298 Or 392, 693 P2d 26 (1984); State v. Vondehn, 348 Or 462, 236 P3d 691 (2010)

 

      Defendant’s inculpatory statements, made to police officer during traffic stop after officer had decided to arrest defendant but prior to formal arrest, were not product of “custodial interrogation,” and thus were not required to be suppressed even though defendant had not been advised of his Miranda rights. State v. Roberti, 298 Or 412, 693 P2d 27 (1984)

 

      Where jail log recited that defendant made call to mother to ask her to get attorney for him, court did not find that defendant knowingly and intelligently waived right to advice of attorney needed to protect right not to make compelled statements. State v. Moore, 72 Or App 202, 695 P2d 936 (1985)

 

      Statement was voluntary where promise of psychiatric treatment did not indicate that defendant would not be prosecuted. State v. Neblock, 75 Or App 587, 706 P2d 1020 (1985)

 

      Miranda-violative statements ruled inadmissible in prosecution’s case in chief may be admissible for impeachment purposes to provide safeguard against perjury and to assist trier of fact in assessing witness’s credibility. State v. Mills, 76 Or App 301, 710 P2d 148 (1985), Sup Ct review denied

 

      If suspect asserts, under this section, right to silence but not right to counsel, police may later give new Miranda warnings and obtain valid waiver of right. State v. Rowe, 79 Or App 801, 720 P2d 765 (1986), Sup Ct review denied

 

      Where defendant in custody at police station after appropriate Miranda warnings requested attorney and, at that time, officer asked whether he could search defendant’s apartment, defendant’s consent to search was valid. State v. Bradbury, 80 Or App 613, 723 P2d 1051 (1986), Sup Ct review denied

 

      Where defendant, suspected of committing burglary, was in full custody and had exercised his right to remain silent, and where police arranged for another suspect in the burglary, who had offered to assist police in eliciting statements from defendant, to talk with him, defendant’s confession was properly excluded because police action violated this section. State v. Osborn, 82 Or App 451, 728 P2d 891 (1986), Sup Ct review denied

 

      Privilege against compelled self-incrimination contained in this section does not prevent admission of evidence that defendant refused to take breath test. State v. Ratliff, 82 Or App 479, 728 P2d 896 (1986), aff’d on other grounds, 304 Or 254, 744 P2d 247 (1987)

 

      Where defendant submitted affidavit supporting his motion to dismiss on ground that he was denied speedy trial and refused to submit to cross-examination by state regarding affidavit, trial court’s action in striking substance of affidavit was proper and did not force defendant to choose between asserting his right to speedy trial and his right against self-incrimination. State v. Mende, 83 Or App 7, 730 P2d 555 (1986), aff’d 304 Or 18, 741 P2d 496 (1987)

 

      This section does not require that persons detained for questioning by law enforcement officers be given warnings similar to those required by Miranda v. Arizona. State v. Smith, 301 Or 681, 725 P2d 894 (1986)

 

      Where defendant’s lawyer had in his possession letter that defendant had voluntarily written to third party and where production of letter did not concede its existence or authenticity, compelling its production did not violate defendant’s privilege against self-incrimination under this section or Fifth Amendment to United States Constitution. State v. Jancsek, 302 Or 270, 730 P2d 14 (1986)

 

      This section does not require that defendant who is in full custody be given warnings beyond those provided in Miranda v. Arizona. State v. Olson, 83 Or App 516, 731 P2d 1072 (1987)

 

      Where defendant having invoked his right to counsel later initiated contact with police and when police then contacted defendant he stated he did not wish to talk, officer’s questioning defendant about whether he wanted to appear before grand jury did not violate this section because defendant’s statement that he did not wish to talk was not request for assistance of counsel. State v. Lyon, 83 Or App 592, 733 P2d 41 (1987), aff’d on other grounds, 304 Or 221, 744 P2d 231 (1987)

 

      Instructing jury on defendant’s right not to testify where defendant did not request instruction did not violate this section (special concurrences). State v. Hart, 84 Or App 237, 733 P2d 913 (1987), Sup Ct review denied

 

      Where defendant was in hospital following car accident, officer who questioned defendant had no intention of arresting or citing defendant for any offense and was unaware of circumstances surrounding accident or state of accident investigation, defendant was not in custody and police were not prohibited from reinstating contact with defendant three months later. State v. Sadler, 85 Or App 134, 735 P2d 1267 (1987), modified 86 Or App 152, 738 P2d 601 (1987)

 

      Where defendant expressed desire to talk to lawyer concerning particular allegation against him but continued to speak to police officers about other aspects of case, he voluntarily waived rights against self-incrimination under state and federal constitutions. State v. Kell, 303 Or 89, 734 P2d 334 (1987)

 

      Where defendant voluntarily came to police station and was questioned in connection with criminal investigation of fight in which he as well as arrested brother had been involved and was told he could not leave police station because he was involved in fight, there was “custody” adequate to require Miranda warnings before questioning. State v. Magee, 304 Or 261, 744 P2d 250 (1987)

 

      Officer had right to question defendant’s relatives about crime, and “threat” to do so did not constitute coercion nor render defendant’s subsequent statements involuntary. State v. Bates, 92 Or App 385, 758 P2d 421 (1988)

 

      Use of polygraph during investigation does not, per se, make defendant’s resulting statement involuntary. State v. Benton, 92 Or App 685, 759 P2d 332 (1988)

 

      Psychological encouragement to talk does not automatically equal coercion nor necessarily interfere with exercise of free will. State v. Benton, 92 Or App 685, 759 P2d 332 (1988)

 

      State may not impeach defendant’s trial testimony with prior inconsistent statements that were elicited by police after defendant had told them he did not want to talk to them but wanted lawyer. State v. Isom, 306 Or 587, 761 P2d 524 (1988), aff’d 313 Or 391, 837 P2d 491 (1992)

 

      Upon criminal suspect’s request for counsel, questioning not only “should” but must cease. State v. Isom, 306 Or 587, 761 P2d 524 (1988), aff’d 313 Or 391, 837 P2d 491 (1992)

 

      When officers, following earlier interview of defendant, asked defendant “Did you ever say that you wanted an attorney?” and defendant responded “I think it would be a good idea to talk to one,” defendant’s response, under circumstances, adequately informed officers that defendant wanted to talk to attorney. State v. Wickey, 95 Or App 225, 769 P2d 208 (1989)

 

      When defendant responded “I’d rather not say” to officer’s question as to ownership of cocaine found in pocket of defendant’s coat defendant was invoking his right to remain silent under this section. State v. Marple, 98 Or App 662, 780 P2d 772 (1989)

 

      This section requires Miranda warnings if defendant is in custody. State v. Brown, 100 Or App 204, 785 P2d 790 (1990), Sup Ct review denied

 

      Where defendant was stopped along public road, consented to continue questioning in officer’s truck, only one officer was present during questioning, entire encounter lasted only about 30 minutes, officers told defendant several times he was not under arrest and never handcuffed him or suggested he could not leave, reasonable person in defendant’s situation would not have understood himself to be in custody and this section was not violated by failure to give Miranda warnings. State v. Brown, 100 Or App 204, 785 P2d 790 (1990), Sup Ct review denied

 

      Where defendant is in custody for reason other than crime about which he is being questioned, he is in custody for purposes of warnings required by this section although if defendant is not suspect at time of questioning, warnings are not required. State v. Dorey, 100 Or App 457, 786 P2d 1288 (1990), Sup Ct review denied

 

      Where defendant confessed after officer explained he could either take defendant into custody or issue citation, but before officer suggested charge may be reduced to misdemeanor, confession was not coerced or given in exchange for promise of leniency. State v. Landers, 101 Or App 293, 790 P2d 1161 (1990), Sup Ct review denied

 

      Requirement in ORS 811.700 that person involved in accident give name and address to driver of other car does not impose substantial risk of self-incrimination and thus does not violate this Article. State v. Monroe, 101 Or App 379, 790 P2d 1188 (1990)

 

      Where polygraph examiner should not have told defendant that if he were innocent he should take test and if he were guilty, he should not, trial court must determine whether that advice rendered defendant’s subsequent confession involuntary. State v. Maskell, 101 Or App 521, 792 P2d 106 (1990)

 

      Under [former] ORS 33.095, contemnor was entitled to be advised of his right to counsel and to have counsel appointed if indigent because he appeared without counsel. State v. Rogers/Jones, 102 Or App 424, 794 P2d 1245 (1990)

 

      Where defendant’s own inquiries on direct examination of defendant are otherwise inadmissible statements, door is opened to further inquiry by prosecution on cross-examination relating to those same statements. State v. Miranda, 309 Or 121, 786 P2d 155 (1990)

 

      Where defendant’s surroundings did not rise to level of custody requiring Miranda-like warnings, admission of statements made at that time did not violate defendant’s rights under this section. State v. Smith, 310 Or 1, 791 P2d 836 (1990); State v. Walker, 104 Or App 410, 801 P2d 877 (1990), Sup Ct review denied; State v. Soen, 132 Or App 377, 888 P2d 583 (1995), Sup Ct review denied

 

      Trial court erred in ruling that defendant did not knowingly and voluntarily waive his rights against self-incrimination where defendant was advised of his rights, indicated he understood those rights, testified that he had spoken with police officer voluntarily and testified that no threats or promises had been made to induce him to speak. State v. Hadley, 105 Or App 467, 805 P2d 714 (1991)

 

      Defendant was entitled to assert constitutional right against self-incrimination in civil contempt hearing relating to nonpayment of support where testimony could be used in criminal action for nonsupport. State ex rel Leopold v. McCallister, 106 Or App 324, 807 P2d 325 (1991)

 

      Test for voluntariness under this section is whether waiver of rights and confession were product of essentially free, unconstrained and informed choice or whether accused’s capacity for self-determination was critically impaired. State v. Burks, 107 Or App 588, 813 P2d 1071 (1991), Sup Ct review denied

 

      Where defendant was questioned in airport by plainclothes officer while three other uniformed officers stood 15 to 18 feet away, defendant was not in custody and Miranda-like warnings were not required. State v. Widerstrom, 109 Or App 18, 818 P2d 934 (1991), Sup Ct review denied

 

      Inculpatory statements made by defendant after polygraph examination were not rendered involuntary by failure to reveal that person administering test held only intern polygraph examiner’s license or by examiner’s failure to apprise defendant of all aspects of defendant’s performance on test. State v. Harberts, 109 Or App 533, 820 P2d 1366 (1991), modified 315 Or 408, 848 P2d 1187 (1993)

 

      Although defendant had received Miranda warnings and had asked for attorney, statements by defendant in response to police interrogation were admissible because defendant initiated conversation. State v. Houston, 110 Or App 19, 821 P2d 1093 (1991)

 

      Where defendant challenges use of statement on grounds statement was involuntary, prosecution must prove voluntariness by preponderance of evidence. State v. Stevens, 311 Or 119, 806 P2d 92 (1991)

 

      Where defendant was questioned in familiar setting, was not under arrest and was free to refuse to answer questions, and where record does not demonstrate that police coerced or pressured defendant, circumstances did not rise to level of custody or compulsion that required Miranda-like warnings. State v. Carlson, 311 Or 201, 808 P2d 1002 (1991)

 

      Performance of field sobriety test is not subject to proscription against compelled self-incrimination because performance is not an act of communication. State v. Scott, 111 Or App 308, 826 P2d 71 (1992); State v. Schaffer, 114 Or App 328, 835 P2d 134 (1992)

 

      Where defendant was questioned at his residence and officer told defendant of allegations against him and asked if they were true before telling defendant of his rights, defendant’s right to receive Miranda-type warnings was not violated when he voluntarily participated in conversation because circumstances were not compelling and defendant was not subjected to custodial interrogation. State v. Wood, 112 Or App 61, 827 P2d 924 (1992), Sup Ct review denied

 

      Request to perform field sobriety test during routine traffic stop does not require Miranda warning as matter of law. State v. Schaffer, 114 Or App 328, 835 P2d 134 (1992)

 

      Where defendant introduced otherwise inadmissible statements to support contention that defendant lacked requisite intent due to intoxication, trial court did not err in allowing prosecution’s relevant inquiry of other statements made by defendant to rebut defendant’s contention. State v. Determann, 115 Or App 627, 839 P2d 748 (1992), on reconsideration 122 Or App 480, 858 P2d 171 (1992), Sup Ct review denied

 

      Where defendant was interrogated concerning one crime while represented by counsel appointed with respect to unrelated crime and Miranda waivers were voluntary, waivers were not obtained in violation of right against self-incrimination under this section. State v. Davis, 313 Or 246, 834 P2d 1008 (1992)

 

      Although police officer advised defendant of Miranda rights and of consequences of refusing sobriety test, responses to questions possibly mistaken for part of sobriety test were excludable. State v. Harrison, 119 Or App 391, 850 P2d 611 (1993)

 

      Where court instructed jury that defendant’s decision not to testify could not be considered indicative of guilt, prosecutor’s comment in closing statement that nothing presented contradicted victim’s testimony was not impermissible comment on defendant’s failure to testify. State v. White, 119 Or App 424, 850 P2d 1158 (1993), Sup Ct review denied

 

      Statements made by defendant in response to officer’s request to perform field sobriety tests were not result of custodial interrogation. State v. Mourlas, 120 Or App 19, 852 P2d 268 (1993), Sup Ct review denied

 

      Court erred in suppressing statements by driver during field sobriety test that demonstrated intoxication, but where content of compelled statement permits incriminating inference, then declarant is compelled to be witness against self and statement should be suppressed. State v. Whitehead, 121 Or App 619, 855 P2d 1149 (1993)

 

      Where plainclothes police officer questioned juvenile in school principal’s office and juvenile was informed at beginning of interview of freedom to leave, circumstances were not compelling enough to require Miranda warnings. State ex rel Juv. Dept. v. Loredo, 125 Or App 390, 865 P2d 1312 (1993)

 

      Testimony of state employee at pre-termination hearing was not coerced, so grant of immunity in subsequent criminal trial was error. State v. Graf, 316 Or 544, 853 P2d 277 (1993)

 

      Placement of defendant in back of patrol car while police officer conducted investigation was not sufficiently compelling circumstance to require Miranda warnings be given defendant prior to subsequent questioning. State v. Nevel, 126 Or App 270, 868 P2d 1338 (1994)

 

      Police officer was not entitled by statute to transactional immunity for testimony compelled during internal department investigation. State v. Beugli, 126 Or App 290, 868 P2d 766 (1994), Sup Ct review denied

 

      Police officer’s utterance of false information during questioning does not automatically make resulting statement involuntary. State v. Tobias, 131 Or App 591, 887 P2d 366 (1994)

 

      Probation condition requiring defendant to be truthful about behavior did not prohibit defendant from refusing to answer if answer would incriminate. State v. Tenbusch, 131 Or App 634, 886 P2d 1077 (1994), Sup Ct review denied

 

      Police officer’s knowledge of request by counsel that interrogation of client terminate was imputable to other members of police department. State v. Simonsen, 319 Or 510, 878 P2d 409 (1994)

 

      Where attorney has invoked suspect’s right to remain silent, police must honor right to remain silent and provide suspect with opportunity to consult with attorney or to waive invocation of right to consult with attorney after being fully informed of situation. State v. Simonsen, 319 Or 510, 878 P2d 409 (1994)

 

      Fact that defendant was out on bail for crime discussed did not transform otherwise voluntary meeting with officers into custodial situation. State v. Rowe, 133 Or App 41, 889 P2d 1329 (1995)

 

      Where confession to crime is elicited by promise of immunity with respect to other crimes, confession does not become involuntary as matter of law. State v. Aguilar, 133 Or App 304, 891 P2d 668 (1995)

 

      To receive protection, person’s statement or conduct must be testimonial evidence that is compelled and that could be used against person in criminal prosecution. State v. Fish, 321 Or 48, 893 P2d 1023 (1995)

 

      Facts giving rise to inferences about person’s state of mind are subject to same self-incrimination protection as direct statements. State v. Fish, 321 Or 48, 893 P2d 1023 (1995)

 

      Forcing person to choose between various courses of self-accusatory conduct that state could not lawfully compel constitutes compelled self-incrimination. State v. Fish, 321 Or 48, 893 P2d 1023 (1995)

 

      Probable cause to arrest does not by itself create compelling circumstance requiring Miranda-like warnings. State v. Clem, 136 Or App 37, 900 P2d 1064 (1995)

 

      Inquiry regarding nature of charge and mere assertion of innocence is not initiation of discussion in waiver of previously asserted right to remain silent. State ex rel Juv. Dept. v. Thai/Schmolling, 138 Or App 354, 908 P2d 844 (1995)

 

      Juvenile’s parent could not supersede juvenile’s waiver of right to counsel by invoking right on juvenile’s behalf. State ex rel Juvenile Dept. v. Cook, 138 Or App 401, 909 P2d 202 (1996), aff’d on other grounds, 325 Or 1, 932 P2d 547 (1997)

 

      Requirement that driver involved in accident remain at scene and furnish nonincriminatory information to other driver does not create compelling circumstances equivalent to police custody. State v. Larson, 141 Or App 186, 917 P2d 519 (1996), Sup Ct review denied

 

      Attorney’s invocation of client right to counsel is specific to offenses arising out of same criminal episode as charged offense and does not prohibit questioning outside presence of attorney regarding unrelated offenses. State v. Charboneau, 323 Or 38, 913 P2d 308 (1996)

 

      Waiver following invocation of right to counsel must indicate willingness for generalized discussion about investigation and must be voluntary, knowing and intelligent based on suspect’s intelligence, education, age and familiarity with system, proximity to Miranda warnings and suspect initiation of dialogue. State v. Meade, 146 Or App 202, 933 P2d 355 (1997), aff’d 327 Or 335, 963 P2d 656 (1998)

 

      Notice that person is under investigation and not free to leave does not transform voluntary field sobriety test into compelled action. State v. Miller, 146 Or App 303, 932 P2d 112 (1997), Sup Ct review denied

 

      Testimonial field sobriety tests involve communication by words or conduct of individual’s thoughts, beliefs or state of mind. State v. Nielsen, 147 Or App 294, 936 P2d 374 (1997), Sup Ct review denied

 

      Field sobriety tests that are not testimonial include tests that produce physical evidence of intoxication without revealing individual’s thoughts, beliefs or state of mind. State v. Nielsen, 147 Or App 294, 936 P2d 374 (1997), Sup Ct review denied

 

      Where field sobriety test has both testimonial and nontestimonial components, exclusion of testimonial component of test does not require exclusion of physical component of test. State v. Gile, 147 Or App 469, 936 P2d 1008 (1997)

 

      Failure to terminate noncustodial interview upon request creates compelling circumstances. State ex rel Juvenile Dept. v. Backer, 148 Or App 344, 940 P2d 247 (1997), Sup Ct review denied

 

      Attorney must have current attorney-client relationship to invoke client right to counsel. State v. Neal, 150 Or App 231, 945 P2d 637 (1997)

 

      Where incarcerated defendant is questioned by police informer regarding matter unrelated to incarceration, Miranda warnings are not required if defendant is not compelled to answer questions. State v. Goree, 151 Or App 621, 950 P2d 919 (1997), Sup Ct review denied

 

      Conducting field sobriety test does not automatically create compelling circumstance that requires subsequent questioning to be preceded by Miranda-like warnings. State v. Prickett, 324 Or 489, 930 P2d 221 (1997)

 

      Duty of interrogating officer to clarify suspect’s equivocal invocation of right to counsel may be canceled by suspect’s unprompted initiation of further conversation regarding matter being investigated. State v. Meade, 327 Or 335, 963 P2d 656 (1998)

 

      Statement or confession may not be declared involuntary based solely on defendant’s mental condition, internal motivation or other personal circumstances. State ex rel Juvenile Dept. v. Deford, 177 Or App 555, 34 P3d 673 (2001)

 

      Government coercion or other overreaching is essential predicate of challenge to admissibility of statement or confession as involuntary. State ex rel Juvenile Dept. v. Deford, 177 Or App 555, 34 P3d 673 (2001)

 

      Whether defendant made knowing and intelligent waiver of rights depends primarily on defendant’s state of mind rather than on police conduct. State ex rel Juvenile Dept. v. Deford, 177 Or App 555, 34 P3d 673 (2001)

 

      Circumstances to be considered in determining ability of juvenile to make knowing and intelligent waiver of rights include, but are not limited to, juvenile’s age, experience, education, background and intelligence and whether juvenile has competency to understand Miranda warnings and consequences of rights waiver. State ex rel Juvenile Dept. v. Deford, 177 Or App 555, 34 P3d 673 (2001)

 

      Where third party informs police that attorney is invoking suspect’s right against compelled self-incrimination, police must honor invocation unless police have actual and objectively reasonable belief that third party is not speaking for attorney. State v. Joslin, 332 Or 373, 29 P3d 1112 (2001)

 

      Exception from Miranda requirements for questions normally attendant to arrest and custody is not limited to routine questions asked during booking procedure. State v. Cunningham, 179 Or App 498, 40 P3d 535 (2002), Sup Ct review denied

 

      Questions exempt from Miranda as normally attendant to arrest and custody may include questions reasonably likely to elicit incriminating response, but not questions designed to elicit incriminating response. State v. Cunningham, 179 Or App 498, 40 P3d 535 (2002), Sup Ct review denied

 

      Statement or confession obtained in violation of Mirandarequirement does not render subsequent confession made after Miranda warning inadmissible unless subsequent confession results from exploitation of earlier unlawful police conduct. State v. Dinsmore, 182 Or App 505, 49 P3d 830 (2002)

 

      Whether request for counsel is unequivocal depends on whether reasonable police officer, under totality of circumstances existing at time of request, would have understood suspect was invoking right to counsel. State v. Dahlen, 209 Or App 110, 146 P3d 359 (2006), modified 210 Or App 362, 149 P3d 1234 (2006)

 

      Whether false statement made by police officer during questioning is coercive depends not on intent of officer in making false statement but on effect information conveyed by false statement would have on reasonable person. State v. Shaff, 343 Or 639, 175 P3d 454 (2007)

 

      Whether giving Miranda warnings following unlawful seizure or entry sufficiently attenuates taint of prior illegal police conduct is to be assessed under totality of circumstances. State v. Ayles, 220 Or App 606, 188 P3d 378 (2008), aff’d 348 Or 622, 237 P3d 805 (2010)

 

      Where criminal defendant gives notice of intent to rely on mental defense, defendant may refuse, during pretrial court-ordered mental examination, to answer questions about thoughts that defendant had at or near time of alleged offense. State v. Petersen, 347 Or 199, 218 P3d 892 (2009)

 

      State is precluded from using evidence derived from violation of this section whether that violation constitutes actual coercion or failure to give warnings necessary for knowing and necessary waiver. State v. Vondehn, 348 Or 462, 236 P3d 691 (2010)

 

      To determine accuracy and efficacy of belated Mirandawarnings, court must consider only objective, factual circumstances in which police gave warnings and may not consider subjective effective that those circumstances had on defendant. State v. Vondehn, 348 Or 462, 236 P3d 691 (2010)

 

      Absent police custody or other compelling circumstances, invocation of right to remain silent does not preclude police from obtaining incriminating information from defendant. State v. Davis, 350 Or 440, 256 P3d 1075 (2011)

 

      Because walking is physical evidence concerning person’s appearance or physical condition and does not communicate beliefs, knowledge, or state of mind, it is not testimonial such that defendant, if allowed upon request to walk in front of jury, would waive right against self-incrimination. State v. Fivecoats, 251 Or App 761, 284 P3d 1225 (2012)

 

      In determining whether defendant, while in police custody, unequivocally invoked right against self-incrimination under this provision, reviewing court must consider defendant’s words in context of totality of circumstances that existed at time of and preceding statement to determine whether reasonable officer would have understood that defendant was invoking that right. State v. Avila-Nava, 356 Or 600, 341 P3d 714 (2014)

 

      Where defendant state to police officer, “I won’t answer any questions,” and no evidence existed that at time of or preceding statement defendant and officer had language barrier, that defendant’s statement was question to officer or that defendant misunderstood right provided by this provision, defendant’s statement was unequivocal invocation of right against self-incrimination. State v. Avila-Nava, 356 Or 600, 341 P3d 714 (2014)

 

      Where six law enforcement officers and two Department of Human Services workers came to defendant’s home to apprehend another person and told defendant that if defendant was honest and cooperative defendant would not be arrested, situation created circumstances compelling enough to require reading Miranda rights to defendant. Evidence obtained from search that occurred with defendant’s consent given after officer’s statement must be suppressed as product of constitutional violation. State v. Heise-Fay, 274 Or App 196, 360 P3d 615 (2015)

 

COMPLETED CITATIONS: State v. Skinner, 5 Or App 259, 483 P2d 87 (1971), Sup Ct review denied; State v. Miller, 5 Or App 501, 484 P2d 1132 (1971), Sup Ct review denied

 

LAW REVIEW CITATIONS: 8 WLJ 447-457 (1972); 53 OLR 100 (1973); 14 WLJ 21 (1977); 17 WLR 515 (1981); 26 WLR 784 (1990); 28 WLR 127 (1991); 32 WLR 677 (1996); 38 WLR 477 (2002)

 

Art. I, Section 13

 

NOTES OF DECISIONS

 

      Where prison inmate had stabbed at least seven prison employes, it was not improper for prison to refuse to allow inmate out of his cell for exercise or to allow him out of his cell only with hands cuffed behind him. Williams v. Cupp, 30 Or App 375, 567 P2d 565 (1977)

 

      Prisoners could, under this section, raise objection to searches by correctional officers of the opposite sex that involved touching of sexually intimate body areas, even through clothing. Sterling v. Cupp, 290 Or 611, 625 P2d 123 (1981)

 

      Under this section, male inmates are protected from having “pat-down” or “frisk” searches or other searches of their anal-genital areas conducted by female guards except when necessity requires it. Bagley v. Watson, 579 F Supp 1099 (1983)

 

      Where defendant was charged with aggravated murder, it was not unnecessarily rigorous to be subjected to pretrial confinement. State v. Moen, 309 Or 45, 786 P2d 111 (1990)

 

      Allegation that petitioner was being subjected to ongoing and periodical assaults by guards is allegation that he is being deprived of constitutional right to be free from unnecessary physical abuse. Schafer v. Maass, 122 Or App 518, 858 P2d 474 (1993)

 

LAW REVIEW CITATIONS: 20 WLR 429 (1984); 36 WLR 313 (2000)

 

Art. I, Section 14

 

NOTES OF DECISIONS

 

      This section does not require that defendant may only be released before trial through medium of sureties. Burton v. Tomlinson, 19 Or App 247, 527 P2d 123 (1974)

 

      This provision contemplated system of bail familiar to time of adoption of constitution. Knutson v. Cupp, 287 Or 489, 601 P2d 129 (1979)

 

      Where record supported trial court’s finding that evidence of accused’s guilt was strong and trial court’s conclusion that she was not entitled to release, Supreme Court would not use writ of habeas corpus to look to reasons behind trial court order. Haynes v. Burks, 290 Or 75, 619 P2d 632 (1980)

 

      Right to suitable bail guaranteed by this section applies only to those accused but not yet convicted of offenses. Priest v. Pearce, 314 Or 411, 840 P2d 65 (1992)

 

      Statute requiring that pretrial release be denied absent clear and convincing evidence that defendant will not commit new crimes while on release violates right to bail. State v. Sutherland, 329 Or 359, 987 P2d 501 (1999)

 

      In demonstrating to court that proof of murder defendant’s guilt is evident or presumption of guilt is strong, state may rely on evidence that would not be admissible at trial. Rico-Villalobos v. Guisto, 339 Or 197, 118 P3d 246 (2005)

 

Art. I, Section 15

 

NOTES OF DECISIONS

 

      This section does not create a judicially enforceable right to a particular rehabilitative program and it does not require the release of those offenders for whom no program is available. Kent v. Cupp, 26 Or App 799, 554 P2d 196 (1976)

 

      Where prison inmate had stabbed at least seven prison employes, it was not improper for prison to refuse to allow inmate out of his cell for exercise or to allow him out of his cell only with hands cuffed behind him. Williams v. Cupp, 30 Or App 375, 567 P2d 565 (1977)

 

      Mandatory minimum sentencing provisions of ORS 161.610 do not violate this section. State v. Warner, 52 Or App 987, 630 P2d 385 (1981), Sup Ct review denied

 

      Minimum sentence without possibility of parole authorized by ORS 161.610 was not inconsistent with this section. State v. Lippert, 53 Or App 358, 632 P2d 28 (1981), Sup Ct review denied

 

      Potential liability for Class A felony is not unconstitutionally disproportionate to offense of growing marijuana. State v. Joyce, 54 Or App 924, 636 P2d 999 (1981), Sup Ct review denied

 

      Although imprisonment of person who has rehabilitated self may violate this section and although permanent reformation should be followed by release from confinement, issue of reformation once service of sentence has begun is properly within jurisdiction of Parole Board. State ex rel O’Leary v. Jacobs, 295 Or 632, 669 P2d 1128 (1983)

 

      Mandatory minimum sentence under ORS 163.105 does not violate this provision of the constitution. Norris v. Cupp, 67 Or App 393, 678 P2d 756 (1984), Sup Ct review denied

 

      This provision does not prohibit legislature from providing greater minimum sentences for crimes that may be considered more dangerous to public and murder for hire may be so considered. State v. Oslund, 71 Or App 701, 693 P2d 1354 (1984), Sup Ct review denied

 

      Placing jail term and consecutive jail terms at end of probationary period does not violate this section. State v. Walker, 77 Or App 464, 713 P2d 612 (1986), Sup Ct review denied

 

      Sentencing guidelines do not violate this section. State v. Spinney, 109 Or App 573, 820 P2d 854 (1991)

 

      Sentencing court is not required to accord equal weight to each of four criteria of protection of society, personal responsibility, accountability and reformation. State v. Kinkel, 184 Or App 277, 56 P3d 463 (2002), Sup Ct review denied

 

ATTY. GEN. OPINIONS: State indemnification of local governments for payments based on government regulations restricting use of property, (2001) Vol 49, p 284

 

LAW REVIEW CITATIONS: 51 OLR 427 (1972); 53 OLR 44 (1973); 16 WLR 1 (1979); 20 WLR 435 (1984); 25 WLR 653 (1989); 36 WLR 313 (2000); 87 OLR 783 (2008)

 

Art. I, Section 16

 

NOTES OF DECISIONS

 

Excessive bail

 

      Defendant has right to hearing on appropriateness of applying statutory minimum bail amount. State v. Sutherland, 329 Or 359, 987 P2d 501 (1999)

 

Cruel and unusual punishment

 

      In order that punishment may be declared “cruel and unusual” without reference to its duration, it must be so disproportionate to offense as to shock moral sense of all reasonable men as to what is right and proper in circumstances. State v. Ronniger, 7 Or App 447, 492 P2d 298 (1971)

 

      Use of reasonable force by teacher to remove disruptive child from classroom is not violative of this section’s prohibition on cruel and unusual punishment. Simms v. Sch. Dist. 1, Multnomah County, 13 Or App 119, 508 P2d 236 (1973), Sup Ct review denied

 

      Where prison inmate was immediate threat to order of institution and safety of employees, restricting privileges of inmate was not cruel or unusual punishment. Williams v. Cupp, 30 Or App 375, 567 P2d 565 (1977)

 

      Placing jail term and consecutive jail terms at end of probationary period does not violate this section. State v. Walker, 77 Or App 464, 713 P2d 612 (1986), Sup Ct review denied

 

      Fact that behavior constituting offense by minor would not be crime if engaged in by adult does not make punishment of offense cruel or unusual. State v. Day, 84 Or App 291, 733 P2d 937 (1987), Sup Ct review denied

 

      Minimum sentence under ORS 161.725 for person suffering severe personality disorder is not cruel and unusual punishment of person for suffering disorder, but reflects legislative recognition that having disorder makes person more likely to commit dangerous crimes and less amenable to rehabilitation. State v. Caughey, 89 Or App 605, 750 P2d 511 (1988), Sup Ct review denied

 

      Placement of prison inmate on controlled feeding status is not punishment but safety measure and does not violate statutory or constitutional prohibitions against cruel and unusual punishment. Smith v. Dept. of Corrections, 101 Or App 539, 792 P2d 109 (1990), Sup Ct review denied

 

      Whether deprivation of medical treatment is cruel or unusual is determined under same “deliberate indifference” standard used in federal constitutional analysis. Billings v. Gates, 323 Or 167, 916 P2d 291 (1996)

 

      Designation of person as predatory sex offender and community notification of person’s status do not constitute punishment. Meadows v. Board of Parole and Post-Prison Supervision, 181 Or App 565, 47 P3d 506 (2002), Sup Ct review denied

 

      Prohibition against cruel and unusual punishment and requirement that penalties be proportioned to offense are independent constitutional commands. State v. Wheeler, 343 Or 652, 175 P3d 438 (2007)

 

Proportionality

 

      Potential liability for Class A felony is not unconstitutionally disproportionate to offense of growing marijuana. State v. Joyce, 54 Or App 924, 636 P2d 999 (1981), Sup Ct review denied

 

      Because under ORS 163.115 defendant could receive lesser minimum sentence for aggravated intentional murder than for unaggravated intentional murder, provision requiring defendant to serve 25 years before becoming eligible for parole was invalid. State v. Shumway, 291 Or 153, 630 P2d 796 (1981)

 

      Imposition of mandatory minimum sentence under ORS 144.110 does not violate proportionality requirements of this section. State v. Turner, 296 Or 451, 676 P2d 873 (1984)

 

      Constitutional challenge on basis that it imposed more severe penalty for murder committed by individual on escape status than penalty imposed on individual in process of escaping and that penalty for murder committed by escapee is not proportionate to offense was improper as ORS 163.095 does not impose any penalty but merely defines crime. State v. McDonnel, 84 Or App 278, 733 P2d 935 (1987), Sup Ct review denied

 

      Sentencing guidelines do not violate this section. State v. Spinney, 109 Or App 573, 820 P2d 854 (1991)

 

      Where imposition of any sentence for misdemeanor is discretionary and felony sentencing guidelines impose mandatory sentence, existence of felony sentencing guidelines does not render disproportionate misdemeanant’s sentence of incarceration. State v. Rice, 114 Or App 101, 836 P2d 731 (1992), Sup Ct review denied

 

      Combination of statutory definition of aggravated murder while escapee under ORS 163.095 and sentencing provisions of ORS 163.105 did not create unconstitutionally disproportionate sentence. State v. Isom, 313 Or 391, 837 P2d 491 (1992)

 

      Statutory minimum sentence of 75 months (ORS 137.707) for sexual abuse committed by minor with no previous record was not unconstitutionally disproportionate punishment. State v. Rhodes, 149 Or App 118, 941 P2d 1072 (1997), Sup Ct review denied

 

      Test for determining whether sentence violates proportionality requirement is whether sentence is so disproportionate to offense that it shocks moral sense of all reasonable persons as to what is right and proper. State v. Thorp, 166 Or App 564, 2 P3d 903 (2000)

 

      Proportionality is determined by comparison of sentence of incarceration actually imposed by court for lesser offense and maximum authorized sentence of incarceration for greater offense. State v. Koch, 169 Or App 223, 7 P3d 769 (2000)

 

      Sentencing disparity between crimes bearing mandatory minimum sentence and other crimes in same block of sentencing guidelines grid does not violate requirement that punishment for crimes be proportionate. State v. Ferman-Velasco, 333 Or 422, 41 P3d 404 (2002)

 

      Prohibition against cruel and unusual punishment and requirement that penalties be proportioned to offense are independent constitutional commands. State v. Wheeler, 343 Or 652, 175 P3d 438 (2007)

 

      Whether penalties are proportioned to offense is measured by comparative relation of penalties to specific offense, not by comparison with penalties imposed for unrelated offenses. State v. Wheeler, 343 Or 652, 175 P3d 438 (2007)

 

      Where rational basis can be found for legislative enactment of penalty, legislative enactment is strong indicator that penalty would not shock moral sense of reasonable people. State v. Wheeler, 343 Or 652, 175 P3d 438 (2007)

 

      Requirement that punishment be proportioned to offense does not prevent legislature from imposing penalty for repeat offender that is greater than would be permissible for single offense. State v. Wheeler, 343 Or 652, 175 P3d 438 (2007)

 

      Criminal offense constitutes both statutory definition of crime and specific defendant’s particular conduct that meets that definition. State v. Rodriguez/Buck, 347 Or 46, 217 P3d 659 (2009); State v. Camacho-Garcia, 268 Or App 75, 341 P3d 888 (2014), Sup Ct review denied

 

      To determine whether penalty is disproportionate as applied to specific defendant, court may consider both defendant’s conduct under statutory definition and case-specific factors, such as characteristics of defendant and victim, harm to victim, and relationship between defendant and victim. State v. Rodriguez/Buck, 347 Or 46, 217 P3d 659 (2009)

 

      Legislature does not establish whether severity of penalty is constitutionally proportional to gravity of crime by enacting statutes that impose more severe penalties for more severe crimes. State v. Rodriguez/Buck, 347 Or 46, 217 P3d 659 (2009)

 

      For purpose of comparing penalties, related crimes are crimes that have similar characteristics to crime at issue. State v. Rodriguez/Buck, 347 Or 46, 217 P3d 659 (2009)

 

      To determine whether punishment, when compared to offense, is so disproportionate that it will shock moral sense of all reasonable people, courts must (1) compare severity of penalty and gravity of crime; (2) compare penalty and penalties imposed for related crimes; and (3) consider criminal history of defendant. State v. Rodriguez/Buck, 347 Or 46, 217 P3d 659 (2009)

 

      Severity of penalty primarily constitutes amount of time that defendant will spend in prison or jail if convicted. State v. Rodriguez/Buck, 347 Or 46, 217 P3d 659 (2009)

 

      Where court imposes jail term after revoking defendant’s probation, jail term punishes original offense and court may impose penalty that could have been imposed at time of original sentencing. State v. Barajas, 254 Or App 106, 292 P3d 636 (2012), Sup Ct review denied

 

      Where defendant was convicted of fourth and fifth public indecency crimes but had never been convicted of any other sex crime, and under ORS 137.719 defendant was sentenced to two consecutive terms of life in prison without possibility of release, penalty was unconstitutionally disproportionate to crimes under this provision, because defendant’s public indecency episodes were not accompanied by violence or force or any other forcibly violent sexual conduct. State v. Davidson, 271 Or App 719, 353 P3d 2 (2015), Sup Ct review allowed

 

      When sentencing defendant to life imprisonment without possibility of release or parole under ORS 137.719, court must consider totality of defendant’s criminal conduct and not merely ultimate offense, and where defendant has egregious and extensive history of criminal conduct with young girls, “true life” sentence does not violate this section. State v. Smith, 277 Or App 709, 372 P3d 549 (2016)

 

      Life sentence without possibility of parole was not disproportionate in violation of this section considering defendant’s criminal history, which included multiple convictions of public indecency and convictions for sexual abuse and where record demonstrated defendant was repeat offender and was unable to reform pattern of criminal behavior despite repeated opportunities to do so. State v. Althouse, 359 Or 668, 375 P3d 475 (2016)

 

Jury’s function

 

      Instruction which permitted jury to infer an intent to steal from defendant’s presence in building did not violate this section. State v. Johnson, 55 Or App 98, 637 P2d 211 (1981), Sup Ct review denied

 

      This section merely acknowledges that which is inherent in all juries, a power to acquit; it is not grant of authority to defendant to ask jury to exercise that power despite applicable law as instructed by court. State v. Hoffman, 67 Or App 54, 677 P2d 72 (1984), Sup Ct review denied; Fauvre v. Roberts, 309 Or 691, 791 P2d 128 (1990)

 

      Legality of search and seizure is issue for court to decide, and trial court did not err in instructing jury that jury did not have right to consider that issue in its deliberations. State v. Gotham, 109 Or App 646, 820 P2d 884 (1991), Sup Ct review denied

 

COMPLETED CITATIONS: State v. Smith, 6 Or App 27, 487 P2d 90 (1971), Sup Ct review denied

 

LAW REVIEW CITATIONS: 16 WLR 1 (1979); 20 WLR 422 (1984); 22 WLR 285 (1986); 25 WLR 653 (1989); 26 WLR 500, 779 (1990); 31 WLR 789 (1995); 87 OLR 783 (2008)

 

Art. I, Section 17

 

NOTES OF DECISIONS

 

In general

 

      This section does not require jury trial for imposition of penalty under Oregon Safe Employment Act (ORS chapter 654). Accident Prevention Div. v. No. Am. Contractors, Inc., 22 Or App 614, 540 P2d 391 (1975)

 

      [Former] ORS 91.765 does not violate this section. Marquam Investment Corp. v. Beers, 47 Or App 711, 615 P2d 1064 (1980), Sup Ct review denied

 

      Where defendant, arrested with cocaine in motor vehicle, was convicted of possession of controlled substance, he was entitled to jury trial on issues of unlawful transportation or concealment of controlled substances and such use of vehicle with knowledge as vehicle owner. State v. Curran, 291 Or 119, 628 P2d 1198 (1981)

 

      This section is designed to guarantee jury trial when right to trial exists in civil action and is not independent guarantee of existence of cognizable claim. Sealey v. Hicks, 309 Or 387, 788 P2d 435 (1990)

 

      Arbitration proceedings described in ORS 742.504 (automobile insurance) do not violate right to jury trial because claimant or insurer is not required to arbitrate claim and can demand jury trial. Carrier v. Hicks, 316 Or 341, 851 P2d 581 (1993); Mazorol v. Coats, 316 Or 367, 852 P2d 178 (1993)

 

      Insurance statute requiring that award determined through mandatory arbitration be binding on both parties violated right of nonrequesting party to jury trial. Lind v. Allstate Insurance Co., 134 Or App 395, 895 P2d 327 (1995), modified 136 Or App 532, 902 P2d 603 (1995), Sup Ct review denied

 

      Reduction under [former] ORS 18.537 of punitive damages awarded on common law claim of wrongful discharge violates this section. Halbasch v. Med-Data, Inc., 192 FRD 641 (D. Or. 2000)

 

      Oregon Tort Claims Act limitation on cause of action for tort committed by employee of public body does not, on its face, violate right to trial by jury. Jensen v. Whitlow, 334 Or 412, 51 P3d 599 (2002)

 

      Claim by state to share of punitive damages award does not deny plaintiff right under Oregon Constitution to trial by jury. DeMendoza v. Huffman, 334 Or 425, 51 P3d 1232 (2002)

 

      Defendant’s right to jury trial under this section is preserved when plaintiff seeks protective order as equitable remedy and legal remedy of compensatory damages because right to jury trial is not dependent on precise match between elements of current claim and what claim would have been under common law. Foster v. Miramontes, 352 Or 401, 287 P3d 1045 (2012)

 

      This section guarantees procedural right to trial by jury in civil actions for which common law in 1857 provided for jury trial, and for cases of similar nature, and does not limit legislature’s authority to define, as matter of law, substantive elements of cause of action or extent to which damage will be available in that action. Horton v. OHSU, 359 Or 168, 376 P3d 998 (2016)

 

Proceedings requiring jury trial

 

      Since actions brought under [former] ORS 659.121 are equitable in nature, this section does not require trial by jury. Wincer v. Ind. Paper Stock Co., 48 Or App 859, 618 P2d 15 (1980)

 

      Because restitution is aspect of criminal law, civil right to jury trial is not implicated. State v. Rosenbaum, 57 Or App 11, 643 P2d 1284 (1982); State v. McGinnis, 105 Or App 154, 803 P2d 1225 (1991)

 

      Restitution is clearly not intended to be equivalent of civil award and, therefore, defendant was not entitled to civil jury trial on issue of restitution. State v. Hart, 299 Or 128, 699 P2d 1113 (1985); State v. Stratton, 99 Or App 538, 783 P2d 41 (1989), Sup Ct review denied

 

      Statute which requires that all fire insurance policies sold in state include provision that disputed amounts of loss be submitted to appraisal does not violate this section by depriving plaintiff of right to jury trial when construed as nonbinding as to party who does not demand appraisal. Molodyh v. Truck Insurance Exchange, 304 Or 290, 744 P2d 992 (1987)

 

      Supervision of fiduciary is equitable power, and there is no constitutional right to jury trial on personal judgment entered against fiduciary for misconduct. Estate of Leda Mae Grove v. Selken, 109 Or App 668, 820 P2d 895 (1991), Sup Ct review denied

 

      Where restitution determination is not civil in nature, requirement under this section for trial by jury in all civil cases does not apply. State v. N.R.L., 354 Or 222, 311 P3d 510 (2013)

 

Questions for jury

 

      This section does not require jury in mental commitment hearings. State v. Mills, 36 Or App 727, 585 P2d 1143 (1978), Sup Ct review denied

 

LAW REVIEW CITATIONS: 31 WLR 737 (1995); 79 OLR 793 (2000); 38 WLR 477 (2002); 85 OLR 1063 (2006)

 

Art. I, Section 18

 

NOTES OF DECISIONS

 

In general

 

      This section does not prevent state or municipality from acquiring property interests by adverse possession or prescription. City of Ashland v. Hardesty, 23 Or App 523, 543 P2d 41 (1975)

 

      Court erred in issuing injunction which barred defendants from entering shopping center to collect signatures on initiative petitions and court must find proper accommodation between property rights under this section and defendants’ rights of expression under section 8, Article I. Lloyd Corporation v. Whiffen, 89 Or App 629, 750 P2d 1157 (1988), aff’d 307 Or 674, 773 P2d 1294 (1989)

 

      Although damages for inverse condemnation are available only through judicial action, inverse condemnation issues can be raised either before LUBA or in judicial forum. Springer v. City of Bend, 111 Or App 136, 826 P2d 1 (1992), Sup Ct review denied; Nelson v. City of Lake Oswego, 126 Or App 416, 869 P2d 350 (1994)

 

      Test in Oregon for inverse condemnation is whether there has been substantial interference with private property rights. Hawkins v. City of La Grande, 315 Or 57, 843 P2d 400 (1992)

 

      Allegations and evidence of livestock killed and crops destroyed by governmentally instituted action support award of condemnation damages. Hawkins v. City of La Grande, 315 Or 57, 843 P2d 400 (1992)

 

      Crops destroyed by governmentally instituted action, although growing from land, are separate entity capable of being separately damaged and are not subject to limiting rules applicable to real property. Hawkins v. City of La Grande, 315 Or 57, 843 P2d 400 (1992)

 

      Landowner is not required to exhaust all available local appeals where scope of what local regulation permits or prohibits can be determined from particular decision appealed. Nelson v. City of Lake Oswego, 126 Or App 416, 869 P2d 350 (1994)

 

      Landowner is not required to exhaust all available local remedies where development condition has resulted in actual acquisition of private property interest by government. Nelson v. City of Lake Oswego, 126 Or App 416, 869 P2d 350 (1994)

 

Taking

 

      Regulatory provisions do not constitute taking absent showing all beneficial use is lost. Multnomah County v. Howell, 9 Or App 374, 496 P2d 235 (1972), Sup Ct review denied; Scott v. State Highway Commission, 23 Or App 99, 541 P2d 516 (1975), Sup Ct review denied; Miller v. Columbia River Gorge Commission, 118 Or App 553, 848 P2d 629 (1993); Dodd v. Hood River County, 317 Or 172, 855 P2d 608 (1993); Curran v. Department of Transportation, 151 Or App 781, 951 P2d 183 (1997)

 

      Mere fact that ordinance prevents owner from using portion of his property for nonconforming purpose does not constitute taking. Multnomah County v. Howell, 9 Or App 374, 496 P2d 235 (1972), Sup Ct review denied

 

      Zoning ordinance is not confiscatory or unconstitutional merely because it operates to reduce value of property or restricts its use to less than its most profitable use. Multnomah County v. Howell, 9 Or App 374, 496 P2d 235 (1972), Sup Ct review denied

 

      Value of assets purchased by city from franchisee was determined by terms of franchise agreement, and not principles of condemnation law. Rose City Transit Co. v. Portland, 18 Or App 369, 525 P2d 1325 (1974), aff’d as modified 271 Or 588, 533 P2d 339 (1975)

 

      Activities of highway department in connection with an anticipated condemnation of plaintiff’s property constituted taking within meaning of this section. Lincoln Loan Co. v. State Hwy. Comm., 274 Or 49, 545 P2d 105 (1976)

 

      Temporary interference with public access to plaintiff’s business caused by highway construction did not constitute taking within meaning of this section. Berman Corp. v. State Hwy. Comm., 24 Or App 813, 547 P2d 192 (1976)

 

      Inverse condemnation actions may be brought only where the state has taken property for public use. Willard v. City of Eugene, 25 Or App 491, 550 P2d 457 (1976)

 

      Allegation that city wrongfully abated plaintiff’s house as nuisance was not sufficient to state cause of action in inverse condemnation. Willard v. City of Eugene, 25 Or App 491, 550 P2d 457 (1976)

 

      Complaint, which failed to state either that comprehensive plan precluded all feasible private uses or that use designation of plan resulted in such governmental intrusion as to inflict virtually irreversible damage, failed to state cause of action for inverse condemnation. Fifth Ave Corp. v. Washington County, 282 Or 591, 581 P2d 50 (1978)

 

      Failure of city to honor county-granted franchise for solid waste collection in area recently annexed by city was not taking within meaning of this section. City of Estacada v. American Sanitary Serv., 41 Or App 537, 599 P2d 1185 (1979), Sup Ct review denied

 

      Application of ORS 91.745, 91.750, 91.770, 91.800 and 91.865 [all former] did not result in an unconstitutional taking of property. Marquam Investment Corp. v. Beers, 47 Or App 711, 615 P2d 1064 (1980), Sup Ct review denied

 

      Nothing in financing or assistance scheme of Eugene Water and Electric Board’s energy conservation plan constituted an unconstitutional “taking” of property or services of ratepayers. Nicoll v. City of Eugene, 52 Or App 379, 628 P2d 1213 (1981), as modified by 53 Or App 528, 632 P2d 502 (1981)

 

      Pickup truck, which had been seized as evidence in murder prosecution, dismantled and used in testing reasonably necessary to investigation, and returned to owners in dismantled condition and requiring over $2,000 in repairs, was not “taken” within meaning of constitutional provision requiring compensation for any taking of public use. Emery v. State of Oregon, 297 Or 755, 688 P2d 72 (1984)

 

      City’s order to relocate utilities without compensation for construction of LRT system was not taking under this section or section 4, Article XI. Northwest Natural Gas Co. v. City of Portland, 300 Or 291, 711 P2d 119 (1985)

 

      On remand, when question whether there has been taking of land is resolved negatively under this section, and when it is determined that same criteria resolved taking claim under Fifth Amendment to United States Constitution, possibility of any claim under 42 U.S.C. 1983 is eliminated. Suess Builders Co. v. City of Beaverton, 77 Or App 440, 714 P2d 229 (1986), Sup Ct review denied

 

      On remand, under circumstances of case, element of “investment-backed expectations” was not relevant because plaintiffs did not allege that defendants had required them to use their land in certain way and alleged only that defendants took their land in fact. Suess Builders Co. v. City of Beaverton, 77 Or App 440, 714 P2d 229 (1986), Sup Ct review denied

 

      Plaintiffs, lessor and lessee of rock quarry, failed to plead facts to show that by reducing load limit on two adjoining county roads, ordinance has denied them adequate and reasonable access to property for principle purpose for which property is used and fact that plaintiffs’ business expectations may have been lowered because they are now required to haul rock from quarry in smaller loads does not rise to constitutional magnitude requiring compensation. Gruner v. Lane County, 96 Or App 694, 773 P2d 815 (1989)

 

      Where no one has undertaken development of property, it is not possible to analyze constitutionality of sidewalk dedication ordinance in eminent domain proceeding. Dept. of Trans. v. Lundberg, 100 Or App 601, 788 P2d 456 (1990), aff’d on other grounds, 312 Or 568, 823 P2d 641 (1992)

 

      County’s requirement that property be annexed into fire district as condition to development of property as subdivision does not constitute taking for purposes of this section. Schoonover v. Klamath County, 105 Or App 611, 806 P2d 156 (1991), Sup Ct review denied

 

      Petitioner who filed only one unsuccessful application for land use permit and pursued no other alternative failed to satisfy ripeness requirements to assert regulatory taking. Joyce v. Multnomah County, 114 Or App 244, 835 P2d 127 (1992); Larson v. Multnomah County, 121 Or App 119, 854 P2d 476 (1993), clarified123 Or App 300, 859 P2d 574 (1993)

 

      Where existing state law recognized “doctrine of custom” to affirm superior public interest in dry sand area, no taking occurred because landowner’s property interest never included right to build seawall. Stevens v. City of Cannon Beach, 114 Or App 457, 835 P2d 940 (1992), aff’d 317 Or 131, 854 P2d 449 (1993)

 

      Local ordinance that proscribed renting residential dwellings for less than 14 days but allowed affected property owners to continue renting for less than 14 days under hardship provision did not constitute “taking.” Cope v. City of Cannon Beach, 115 Or App 11, 836 P2d 775 (1992), aff’d on other grounds, 317 Or 339, 855 P2d 1083 (1993)

 

      State exercised its taxing power, not its constitutional taking power, with amendment to ORS 316.680 subjecting Public Employees Retirement System benefits to taxation. Hughes v. State of Oregon, 314 Or 1, 838 P2d 1018 (1992)

 

      City code requiring owner of derelict building to pay annual fee until building was reoccupied or demolished did not facially constitute taking of property. Benson v. City of Portland, 119 Or App 406, 850 P2d 416 (1993), Sup Ct review denied

 

      City ordinance that required property owners to dedicate some portion of surface and subsurface of property to accommodate city-owned interceptor sewer tanks and related sewer lines without compensation was taking. Ferguson v. City of Mill City, 120 Or App 210, 852 P2d 205 (1993)

 

      Irreversible damage is relevant inquiry only where eventual taking of property is contemplated. Lardy v. Washington County, 122 Or App 361, 857 P2d 885 (1993), Sup Ct review denied

 

      Forfeiture law was exercise of police power and did not constitute “taking.” State ex rel Schrunk v. Metz, 125 Or App 405, 867 P2d 503 (1993)

 

      Where purchasers had constructive notice of pending zoning limitations, “investment-backed expectations” were properly excluded from takings clause analysis. Dodd v. Hood River County, 317 Or 172, 855 P2d 608 (1993)

 

      Zoning limitations that do not require land to be left in natural state do not constitute taking of conservation easement on property. Dodd v. Hood River County, 317 Or 172, 855 P2d 608 (1993)

 

      Where highest and best use of land is based on hypothetical development, impact of hypothetical restrictions and conditions on value of developed land may be considered. Dept. of Transportation v. Altimus, 137 Or App 606, 905 P2d 258 (1995)

 

      In determining impact of anticipated restrictions and conditions on value of land if developed, restrictions and conditions considered are subject to same individualized proportionality analysis applicable to actual development. Dept. of Transportation v. Altimus, 137 Or App 606, 905 P2d 258 (1995)

 

      Requirement that delegation of eminent domain power to agency be expressly stated applies to every type of activity involving exercise of eminent domain power. GTE Northwest, Inc. v. Public Utility Commission, 321 Or 458, 900 P2d 495 (1995)

 

      Limited duration of physical invasion is irrelevant to determination whether taking has occurred. GTE Northwest, Inc. v. Public Utility Commission, 321 Or 458, 900 P2d 495 (1995)

 

      Heavy regulation of industry does not permit government to allow physical invasion of property by third party. GTE Northwest, Inc. v. Public Utility Commission, 321 Or 458, 900 P2d 495 (1995)

 

      Demolition of structure violating zoning restriction does not satisfy physical occupation or public purpose elements of taking. Hoeck v. City of Portland, 57 F3d 781 (9th Cir. 1995)

 

      Jurisdiction of court over inverse condemnation claim does not require prior determination by regulatory agency that taking has occurred. Boise Cascade Corp. v. Board of Forestry, 325 Or 185, 935 P2d 411 (1997)

 

      To assert claim for temporary taking, complaining party must allege denial of all economic use of property under law, ordinance or regulation that is permanent or so long-lived that making economic plans for property is impractical. Boise Cascade Corp. v. Board of Forestry, 325 Or 185, 935 P2d 411 (1997)

 

      In inverse condemnation action, landowner is not required to prove agency has express eminent domain power. Boise Cascade Corp. v. Board of Forestry, 325 Or 185, 935 P2d 411 (1997)

 

      Where owner of property abutting public highway has right to access at specific location, denial of highway access at that location is taking of property. Department of Transportation v. Hanson, 162 Or App 38, 987 P2d 538 (1999), Sup Ct review denied

 

      Evidence relating to condition of property on valuation date but not known at time of condemnation is relevant to determining just compensation. Department of Transportation v. Hughes, 162 Or App 414, 986 P2d 700 (1999)

 

      Placing burden of proof on petitioner to establish disproportional nature and extent of permit or approval condition in comparison with improvement project impact is not facially unconstitutional. Lincoln City Chamber of Commerce v. City of Lincoln City, 164 Or App 272, 991 P2d 1080 (1999), Sup Ct review denied

 

      In partial-taking case, evidence of price paid in contemplation of taking is relevant to establishing post-condemnation value of remaining parcel. Department of Transportation v. Alf, 165 Or App 162, 995 P2d 1197 (2000), Sup Ct review denied

 

      Municipalities owning public parks hold title in governmental capacity, not as owners of private property. City of Keizer v. Lake Labish Water Control District, 185 Or App 425, 60 P3d 557 (2002), Sup Ct review denied

 

      Statutory allocation of punitive damages award is not taking since plaintiff does not have vested property right in punitive damages award before entry of final judgment. DeMendoza v. Huffman, 334 Or 425, 51 P3d 1232 (2002)

 

      To constitute compensable taking for purposes of inverse condemnation claim, interference with property rights must be natural and ordinary consequence of government action. Vokoun v. City of Lake Oswego, 335 Or 19, 56 P3d 396 (2002)

 

      Negligence by government does not constitute taking. Vokoun v. City of Lake Oswego, 335 Or 19, 56 P3d 396 (2002)

 

      Ordinance that applies to broad class of property but effectively requires exercise of discretion or adjudication for each case is subject to heightened scrutiny for disproportional impact. Dudek v. Umatilla County, 187 Or App 504, 69 P3d 751 (2003)

 

      Development approval condition that applicant purchase property right then dedicate right to public purpose is in nature of real property exaction, not requirement for expenditure of fungible resource. Dudek v. Umatilla County, 187 Or App 504, 69 P3d 751 (2003)

 

      Exercise of police power regarding public property that has incidental effect of eliminating private property right is not taking of private property. Robertson v. City of Turner, 187 Or App 702, 69 P3d 738 (2003), Sup Ct review denied

 

      Determination whether taking is roughly proportional to development impact considers reasonable projected impacts from all property uses allowed under application. Hallmark Inns & Resorts, Inc. v. City of Lake Oswego, 193 Or App 24, 88 P3d 284 (2004)

 

      In determining whether property subject to regulation retains viable economic use, court should consider property owner’s ability to use whole parcel rather than just portion subject to regulation. Coast Range Conifers, LLC v. Oregon State Board of Forestry, 339 Or 136, 117 P3d 990 (2005)

 

      Regulation that imposes monetary obligation does not constitute taking unless obligation imposes burden tantamount to acquisition of property. West Linn Corporate Park, L.L.C. v. City of West Linn, 349 Or 58, 240 P3d 29 (2010)

 

      Eliminating waiver of statutory requirement is not taking because waiver is not vested right to present or future enjoyment of property. Curry v. Clackamas County, 240 Or App 531, 248 P3d 1 (2011), Sup Ct review denied

 

Compensation

 

      Basic premise and constitutional requirement in all condemnation cases is that landowner is entitled to be awarded just compensation for taking of his property. State Hwy. Comm. v. Hooper, 259 Or 555, 488 P2d 421 (1971)

 

      Status of personalty as fixture depends upon: 1) annexation to realty; 2) adaptation to use or purpose of realty; and 3) objective intention of annexor. Highway Comm. v. Empire Bldg., 17 Or App 616, 523 P2d 584 (1974), Sup Ct review denied

 

      Trial court has discretion to exclude evidence of price which owner paid for property being taken if that price no longer truly reflects market value. Highway Comm. v. Empire Bldg., 17 Or App 616, 523 P2d 584 (1974), Sup Ct review denied

 

      This section does not authorize payment of attorney fees on appeal of a condemnation proceeding. State Hwy. Comm. v. Stockhoff, 18 Or App 943, 524 P2d 1240 (1974)

 

      Across-the-fence method of appraisal was properly admitted as evidence in condemnation case as trial court has wide discretion in ruling on admissibility of evidence and any competent evidence tending to affect market value which would be considered by a purchaser or seller is admissible. Dept. of Trans. v. Southern Pacific Trans. Co., 89 Or App 344, 749 P2d 1233 (1988), Sup Ct review denied

 

      Ordinance providing for dedication of portion of property to public use in exchange for granting zoning permit allowing highest and best use was relevant in considering value of property. Dept. of Transportation v. Lundberg, 312 Or 568, 825 P2d 641 (1992)

 

      Abstract likelihood of less restrictive zoning was irrelevant in determining value where zone change could affect only condemning authority’s use of property. City of Eugene v. Kokkeler, 133 Or App 721, 893 P2d 1054 (1995)

 

      Restriction of property access to abutting highway caused by general highway use regulatory scheme is not compensable taking. Curran v. Department of Transportation, 151 Or App 781, 951 P2d 183 (1997); Department of Transportation v. DuPree, 154 Or App 181, 961 P2d 232 (1998), Sup Ct review denied

 

      For compensation to be reduced due to special benefit conferred on remaining property, benefit must be measurable in money value. Department of Transportation v. Fullerton, 177 Or App 254, 34 P3d 1180 (2001)

 

      Cost approach can be appropriate method of determining value of special use property for which comparable sales data is not available. City of Bend v. Juniper Utility Company, 242 Or App 9, 252 P3d 341 (2011)

 

      Whether government must compensate landowner for improvement made to property depends, in part, on whether government had interest in improvement before filing condemnation action. City of Harrisburg v. Leigh, 254 Or App 558, 295 P3d 138 (2013)

 

ATTY. GEN. OPINIONS: Authority of the Marine Board to remove dilapidated docks and pilings which create a hazard to boating, (1973) Vol 36, p 388; restrictions on the freezing of property by a city or county designating it for a park or public building, (1975) Vol 37, p 842; inclusion of private property within the Willamette River Greenway not to constitute a “taking,” (1976) Vol 38, p 123; requiring nursing homes to accept quota of welfare patients as condition of receiving certificate of need as taking without compensation, (1979) Vol 39, p 708; Oregon Medical Insurance Board of Directors may not assess members of Medical Insurance Pool for purpose of covering losses from claims by insureds and has authority only to assess members $150,000 for start-up costs, (1989) Vol 46, p 155; Oregon Medical Insurance Board of Directors may accept voluntary contributions, (1989) Vol 46, p 155; payments based on government regulations restricting use of property, (2001) Vol 49, p 284

 

LAW REVIEW CITATIONS: 8 WLJ 261-268 (1972); 4 EL 421 (1974); 5 EL 359-364, 518 (1975); 54 OLR 67-79, 224 (1975); 14 WLJ 81 (1977); 57 OLR 172 (1977); 16 WLR 591 (1980); 65 OLR 199 (1986); 19 EL 858 (1989); 70 OLR 257 (1991); 31 WLR 817 (1995); 79 OLR 793 (2000); 38 WLR 477 (2002); 40 WLR 529, 627 (2004); 36 EL 25, 79 (2006); 85 OLR 1063 (2006)

 

Art. I, Section 19

 

NOTES OF DECISIONS

 

      Where defendant left state in violation of probation and also failed to make $10-per-month payment of $200 fine, which was condition of probation, revocation of probation did not constitute imprisonment for debt. State v. Davis, 31 Or App 439, 570 P2d 683 (1977), Sup Ct review denied

 

LAW REVIEW CITATIONS: 11 WLJ 290 (1975)

 

Art. I, Section 20

 

In general

Licensing and taxing laws

Laws regulating occupations

Labor laws

Miscellaneous laws

 

NOTES OF DECISIONS

 

In general

 

      This section did not prohibit limiting suspension of statutes of limitation for disability to five years under ORS 12.160. Shaw v. Zabel, 267 Or 557, 517 P2d 1187 (1974)

 

      Rules denying certain privileges to inmates in protective custody do not deny equal protection when there is a rational basis for the denial. Rook v. Cupp, 17 Or App 205, 521 P2d 10 (1974)

 

      Controlling principles which guide courts in determining questions of alleged unconstitutional discrimination or class legislation are same whether it is Equal Protection Clause of Fourteenth Amendment to United States Constitution which is invoked, or the privileges and immunities provision in this section. Plummer v. Donald M. Drake Co., 212 Or 430, 320 P2d 245 (1958); Sch. Dist. 12 v. Wasco County, 270 Or 622, 529 P2d 386 (1974)

 

      Oregon system of school financing does not violate this section. Olsen v. State ex rel Johnson, 276 Or 9, 554 P2d 139 (1976)

 

      Where, because city lacked jail cells for women, female defendant was placed in county detention facility and charged under statute, rather than being placed in city jail and charged under ordinance, and statute had maximum penalty twice that provided by ordinance but defendant received sentence under statute which was less than maximum provided by ordinance, defendant was not denied equal protection because of her sex. State v. Hodgdon, 31 Or App 791, 571 P2d 557 (1977), Sup Ct review denied

 

      [Former] ORS 419.476, insofar as it provides for juvenile court jurisdiction on basis of offense committed in other state, does not contravene this section or Equal Protection Clause of Fourteenth Amendment to United States Constitution. State ex rel Juvenile Department v. W., 34 Or App 437, 578 P2d 824 (1978)

 

      Allowing city police officer discretion to charge offender under either city ordinance or state statute, each of which provided different penalties and appeal rights, did not violate this section. City of Klamath Falls v. Winters, 289 Or 757, 619 P2d 217 (1980)

 

      Refusal of defendant’s request for preliminary hearing after indictment by grand jury did not violate this section where there was no showing that coexistence of two procedures for initiating criminal prosecutions (charging by district attorney’s information and indictment by grand jury) which limited right to preliminary hearing to one of them constituted forbidden class legislation. State v. Clark, 291 Or 231, 630 P2d 810 (1981)

 

      State’s decision to prosecute defendant and grant immunity to potential codefendants without previously stated standards did not violate this section as long as no discriminatory practice or illegitimate motive was shown and use of discretion had defensible explanation. State v. Clark, 291 Or 231, 630 P2d 810 (1981)

 

      Since ORS 261.615 was enacted to expedite final decision on validity of bonds sought to be sold by public utility, it does not relate to rights of private persons and is therefore not violative of this section. State ex rel Emerald PUD v. Joseph, 292 Or 357, 640 P2d 1011 (1982)

 

      It is not a denial of “equal protection” to allow recovery by child of dead parent for loss of parent’s society and to deny such recovery to child of disabled parent. Norwest v. Presbyterian Intercommunity Hospital, 293 Or 543, 652 P2d 318 (1982)

 

      Classifications made on the basis of gender are inherently suspect. Hewitt v. SAIF, 294 Or 33, 653 P2d 970 (1982)

 

      Question of whether cause of action for damages exists for actions brought directly under this section and section 8, Article I, is unsettled and therefore, court declined to exercise pendent jurisdiction. Anderson v. Central Point School Dist. No. 6, 554 F Supp 600 (1982)

 

      System which allows person to be charged with felony either by grand jury indictment or by district attorney’s information does not inherently violate this section. State v. Ingberg, 65 Or App 772, 672 P2d 377 (1983)

 

      City’s refusal to allow church to operate school on church premises without conditional use permit does not violate church’s rights to equal privileges and immunities under this section, even though another church was permitted to use its premises for school under earlier declaratory interpretation of city’s ordinance by city council. Medford Assembly of God v. City of Medford, 72 Or App 333, 695 P2d 1379 (1985), Sup Ct review denied

 

      Under Oregon Constitution, person may be charged with felony either by grand jury indictment or by district attorney information after showing of probable cause at preliminary hearing, and it is within district attorney’s discretion to decide which procedure to use so long as exercise thereof complies with Equality of Privileges Clause of Oregon Constitution. State v. Eells, 72 Or App 492, 696 P2d 564 (1985), Sup Ct review denied

 

      State’s decision to prosecute defendant for misdemeanor in circuit rather than district court would violate, based on differing jury procedures, right to equal privileges only if defendant showed that state’s choice was based on criteria which discriminated against him individually or against class to which he belongs or that choice was purely haphazard. State v. Barfield, 79 Or App 688, 720 P2d 394 (1986)

 

      Analysis of classification schemes under this section generally coincides with classification analysis under federal Equal Protection Clause. Baillie v. State Board of Higher Educ., 79 Or App 705, 719 P2d 1330 (1986), Sup Ct review denied

 

      Provisions of this section that persons over age of 13 and under 17 years old who are convicted of being minor in possession of alcohol shall have driving privileges denied does not violate this section or section 16, Article I. State v. Day, 84 Or App 291, 733 P2d 937 (1987), Sup Ct review denied

 

      Ten-year statute of limitations applicable to filiation proceedings under former ORS 109.135 (3) is not significantly lesser violation of child’s equal protection rights under this section than was six-year limitation struck down in State ex rel Adult and Family Services v. Bradley, 295 Or 216 (1983), and is unconstitutional. State ex rel AFSD v. Tuttle, 304 Or 270, 744 P2d 990 (1987)

 

      If state enforces obligations of parents to support children in juvenile secure custody when those children are placed there by juvenile court, but not when children are placed there after remand to adult court, state has given parents of second group privilege it has not given parents of first group and distinction violates the section. Van Daam v. Hegstrom, 88 Or App 40, 744 P2d 269 (1987), Sup Ct review denied

 

      Use of the word “torture” in ORS 163.095 (1)(e) is not unconstitutionally vague. State v. Cornell/Pinnell, 304 Or 27, 741 P2d 501 (1987)

 

      This section, in prohibiting “frequenting a place where controlled substances are used” is not unconstitutionally vague under United States or Oregon Constitution. State v. Pyritz, 90 Or App 601, 752 P2d 1310 (1988)

 

      ORS 163.525 (incest statute) is not unconstitutionally vague or overbroad and does not deny defendant equal protection. State v. Buck, 92 Or App 130, 757 P2d 861 (1988), Sup Ct review denied

 

      Statutory provisions making recognition as “minor political party” contingent on demonstration of support from five percent of voting electorate are not contrary to provisions of Oregon and United States Constitutions. Libertarian Party of Oregon v. Roberts, 305 Or 238, 750 P2d 1147 (1988)

 

      ORS 199.534 is independent source of validity of annexations and does not violate this section in affected areas originally annexed through “triple majority procedure.” Mid-County Future Alternatives v. City of Portland, 95 Or App 556, 770 P2d 604 (1989), aff’d 310 Or 152, 795 P2d 541 (1990)

 

      Pilot program requiring participation of all DUII offenders in selected Oregon counties does not violate this section. State v. Scott, 96 Or App 451, 773 P2d 394 (1989)

 

      Where defendant offers no evidence of impermissible practice or motive and use of prosecutorial discretion was proper, prosecutor is not required to offer same plea agreement to all codefendants charged with identical offenses. State v. Buchholz, 97 Or App 221, 775 P2d 896 (1989), aff’d 309 Or 442, 788 P2d 998 (1990)

 

      On remand, phrase “unlawful departure” in ORS 162.135 is not unconstitutionally vague since one can ascertain with reasonable degree of certainty when departure would be unlawful and when lawful. State v. McKenzie, 97 Or App 267, 775 P2d 907 (1989)

 

      Portland City Code prohibiting specific conduct considered to be loitering to commit prostitution was not unconstitutionally vague. City of Portland v. Levi, 98 Or App 341, 779 P2d 192 (1989), Sup Ct review denied, on reconsideration 100 Or App 349, 786 P2d 196 (1990)

 

      Where legislature has chosen to enact limited waiver of sovereign immunity, limited waiver does not violate this section because it does not discriminate against plaintiff as individual or member of any cognizable class. Hale v. Port of Portland, 308 Or 508, 783 P2d 506 (1989)

 

      Where defendant failed to show that prosecutor had exercised discretion based on impermissible categories in enforcing ordinance, court did not abuse its discretion in refusing to hold evidentiary hearing on selective enforcement of ordinance at close of evidence presented at trial. City of Portland v. Bitans, 100 Or App 297, 786 P2d 222 (1990)

 

      ORS 30.115, which requires airplane guest passengers to prove gross negligence to recover for injuries without placing corresponding burden on motor vehicle and other guest passengers, does not violate this section. Urton v. Hudson, 101 Or App 147, 790 P2d 12 (1990), Sup Ct review denied

 

      This section is not violated by ORS 30.265 (Oregon Tort Claims Act) provision providing immunity from claimants covered by workers’ compensation law. Ward v. Romig, 101 Or App 235, 790 P2d 44 (1990); Gunn v. Lane County, 173 Or App 97, 20 P3d 247 (2001), Sup Ct review denied

 

      Rights of class are violated if class is identifiable by antecedent personal or social characteristics or societal status, and distinction between classes is either impermissibly based on immutable characteristics or has no rational relationship to state’s purpose. Moccio v. AFSD, 103 Or App 207, 796 P2d 1233 (1990); Ag West Supply v. Hall, 126 Or App 475, 869 P2d 383 (1994)

 

      Fact that defendant was not offered opportunity to plead guilty to aggravated murder and avoid death penalty does not establish ipso facto violation of this section or Equal Protection Clause because district attorney offered sufficient justification for treating defendant differently from other defendants charged with aggravated murder. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

 

      Because statutory requirements for simple felony murder and aggravated murder by concealment are distinguishable, ORS 163.095, aggravated murder by concealment, does not violate federal equal protection or this section and prosecutorial charging discretion is adequately limited. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

 

      Where legislature did not treat plaintiff differently from any other product liability plaintiff, he has not been denied any privileges due under this section. Sealey v. Hicks, 309 Or 387, 788 P2d 435 (1990)

 

      Where Oregon Constitution permits sovereign immunity and challenged classifications were not based on any ad hominemcharacteristics of decedent, system extending three-year statute of limitations to most wrongful death actions but only two-year statute of limitations when wrongful death was government-inflicted does not violate this section. Van Wormer v. City of Salem, 309 Or 404, 788 P2d 443 (1990)

 

      Rule adopted by State Sentencing Guidelines Board under ORS 137.120 (2) which subjected convicted defendant to greater presumptive sentence upon finding that crimes occurred as part of “drug cultivation, manufacture or delivery scheme or network” was unconstitutionally vague under this section. State v. Moeller, 105 Or App 434, 806 P2d 130 (1991); State v. Mack, 108 Or App 643, 817 P2d 1321 (1991); State v. Rubio-Landa, 110 Or App 134, 820 P2d 467 (1991)

 

      Purported inequality arising from Mental Health Division’s practice of charging persons other than transferees from Department of Corrections did not immunize petitioners from lawful obligations to pay charges for cost of care at division’s facilities. Fredenburg v. Mental Health Div., 106 Or App 337, 807 P2d 812 (1991), as modified by 107 Or App 425, 812 P2d 432 (1991)

 

      Double majority annexation procedure of ORS 199.490 (2) does not violate this section. Mid-County Future v. Port. Metro. Area LGBC, 106 Or App 647, 809 P2d 1354 (1991)

 

      Decisions as to whether to allow both defendant and defendant’s counsel to ask questions on voir dire is within discretion of court: complaint of unequal treatment cannot rest simply on existence of discretion alone. State v. Stevens, 311 Or 119, 806 P2d 92 (1991)

 

      Tri-Met’s issuance of final order pursuant to chapter 3, Oregon Laws 1991, creating Westside Corridor Project, and LUBA’s affirmation thereof, did not deprive affected local governments of their rights under this provision. Seto v. Tri-County Metro. Transportation Dist., 311 Or 456, 814 P2d 1060 (1991)

 

      Provision of [former] ORS 25.285 allowing modification of child support without showing of substantial change of circumstances for parents whose support obligations are subject to support enforcement services did not violate equal protection rights under this section, because classification between them and other parents was created by statute itself and intrinsic to regulation statutes are designed to achieve. Thompson and Thompson, 110 Or App 462, 823 P2d 1001 (1992), Sup Ct review denied

 

      ORS 166.165 sufficiently defines crime of intimidation in first degree to apprise defendant and other persons of prohibited conduct. State v. Plowman, 314 Or 157, 838 P2d 558 (1992)

 

      Vagueness challenge based on hypothetical fact pattern does not require consideration where defendant’s conduct is clearly within that conduct prohibited by statute. State v. Albee, 118 Or App 212, 847 P2d 858 (1993), Sup Ct review denied; State v. Reichsfeld, 118 Or App 592, 848 P2d 639 (1993); State v. Butterfield, 128 Or App 1, 874 P2d 1339 (1994), Sup Ct review denied

 

      Statutory scheme that permits district court defendant to seek writ of mandamus in circuit court and circuit court defendant to seek writ of mandamus directly with Oregon Supreme Court does not violate equal protection. State v. Salzmann, 119 Or App 217, 850 P2d 1122 (1993)

 

      Fee rationally related to cost for provision of trial transcript did not discriminate against indigent litigants as a class. City of Lake Oswego v. $23,232.23 in Cash, 121 Or App 432, 855 P2d 201 (1993)

 

      Where claim is that statute was unconstitutional when enacted, rational relationship to state purpose is determined by state of facts at time of enactment. Ag West Supply v. Hall, 126 Or App 475, 869 P2d 383 (1994)

 

      Where law does not involve liberties under First Amendment to United States Constitution, vagueness challenge must be based on particular conduct rather than claim of facial vagueness. State v. Butterfield, 128 Or App 1, 874 P2d 1339 (1994), Sup Ct review denied

 

      Criminal defendant does not have right to statewide comparative sentencing review for purpose of establishing disproportionality of sentence. State v. Cunningham, 320 Or 47, 880 P2d 431 (1994)