MCAD Research Bank


United States v. Hinton, ___ F.3d ___ (2000).  Defendant had no reasonable expectation of privacy when federal marshals viewed the return address on the outside of a fourth class package.  Therefore, despite fact that marshals violated postal regulations in inspecting the package, defendant was not entitled to suppress the package.  To read the full text of this opinion, CLICK HERE.

United States v. Howell, ___ F.3d ___ (2000).  A District Court has discretion under the Magistrate Act to consider  party's evidence, when presented for the first time in an objection to a magistrate judge's recommendation to deny a motion to suppress.  To read the full text of this opinion, CLICK HERE.

State v. Sampson, ___ Or. App. ___ (2000). [DRE testimony is scientific evidence and is admissible as evidence.  Defendantís motion to suppress was correctly denied.]

State of Montana v. Baker, 8 P.3d 817 (2000).  "Where the prosecution's suppression of evidence is negligent, it does not amount to a violation of due process unless the evidence is material, of substantial use, vital to the defense and exculpatory."

State v. Lambert, 134 Or. App. 148 (1995). [Consent is one of the recognized exceptions to the general rule that, under both the Fourth Amendment and Article I, section 9, of the Oregon Constitution, a warrantless search is per se unreasonable. Consent may be given by the person whose activities or belongings are the subject of the search or, in some cases, by a third party. Consent does not have to be given by the property owner. Valid third-party consent must be given by a person who has "common authority," as evidenced by that personís "joint use or occupancy of the premises."]

State v. Rodriguez, 115 Or. App. 281 (1992). [At. 290: "The seeds of doubt regarding defendantís identity were sown by the evidence that was admitted. The court erroneously forbade inquiries that were directly relevant to the issues of bias and misidentification. Those rulings effectively precluded defendant from attempting to establish that the doubt already sown was reasonable."]

State v. Brown, 110 Or. App. 604, 825 P.2d 282 (1992).  [Observation of ďdrug scaleĒ, baggies, a bullet and a couple of knives on a table did not give officer probable cause to search vehicle of defendant.]

State v. Woodley, 115 Or. App. 295, 837 P.2d 562 (1991). [When giving a field sobriety test, an officer is encouraged but not required to inform the suspect/defendant of the results of refusing the test. Defendantís motion to suppress was improperly granted.]

State v. Evans, 110 Or. App. 46 (1991). [An affidavit need not establish that the places to be searched are the onlyóor even the most likelyóplaces in which items or persons might be found. In this case, the affiant knew that defendants resided somewhere on Deer Lane. Considering the rural natural of the area, known as "Alfalfa," the presence of Lauraís car was sufficient to show that Kenneth probably lived there.]

State v. Ali, 105 Or. App. 193 (1991). [When Officer saw the two open beer cans (in vehicle), he was entitled to search for evidence relating to an open container law violation. At the time that he seized the wad (of paper containing cocaine), however, he knew that no more beer cans were under the front seat. His seizure of the wad was unrelated to a search for evidence of an open container violation. Officerís warrantless seizure was invalid, unless exigent circumstances and probable cause support it. Exigent circumstances existed, but Officer lacked probable cause.]

State v. Stevens, 311 Or. 119, 806 P.2d 92 (1991). [Warrantless searches of defendantís house were supported by probable cause and exigent circumstances; therefore, evidence will not be suppressed.]

State v. Ehly, 109 Or. App. 456 (1991). [Gun and methamphetamines found in search of bag dumped when officers, fearing for their safety because suspect had both hands inside of bag while searching for motel room key, were properly admitted as evidence at trial.

State v. Wyatt, 102 Or. App. 413, 794 P.2d 1243 (1990). [Held: (1) trial court erred in overruling defendantís objection to police officerís rebuttal testimony that at no time did officer have any indication that confidential informant lied to him about any aspect concerning drug investigation, and (2) error was harmful.]

State v. Woodward, 107 Or. App. 123 (1990). [Although defendant had walked into the apartment (where officers were executing a search warrant for drugs) without knocking, his conduct was otherwise not consistent with that of an occupier of the place. The police here had insufficient justification to treat defendant as an occupant.]

State v. Porter, 102 Or. App. 22, 792 P.2d 471 (1990). [Held: a police officerís discovery of an open beer can in plain view in the automobile justified an investigation reasonable related to the traffic infraction regarding open containers.]

State v. Pepper, 105 Or. App. 107 (1990). [Portland city police officers had no authority to pursue defendant from Oregon into Washington and to arrest him there. Evidence suppressed, conviction reversed and remanded for a new trial.]

State v. Shutvet, 105 Or. App. 97 (1990). [Under ORS 133.434(4), if an affidavit contains hearsay information provided by a confidential informant, it must set forth the basis of the informantís knowledge and facts that demonstrate that the informant is reliable. An informantís reliability can be established by showing that he is credible or that the information is reliable.]

State v. Stone, 104 Or. App. 534 (1990). [Gang-related evidence (manner of dress, mannerisms, guns in car) was irrelevant to prove that defendant knew that car was stolen. Without the inadmissible gang-related testimony, defendantís possession of the guns is irrelevant to his knowledge of whether the car had been stolen. Possession of guns alone does not increase the probability that defendant knew that the car had been stolen, but would only prove that defendant is a bad person, which is not in issue at all.]

State v. Garcia, 104 Or. App. 453 (1990). [Defendant contends that the trial court erred in failing to give a limiting instruction that testimony used to impeach a witness cannot be considered as substantive evidence. The court does not reach the merits of this question, however, because defendant failed to request instruction at trial.]

State v. Gerrish, 311 Or. 506 (1989). [Car stop by an officer was not a seizure because it was not a significant restriction upon or interference with an individualís liberty or freedom of movement; nor would a reasonable person believe it was.]

State v. Butkovich, 87 Or. App. 587, 743 P.2d 752 (1987). [The statutory standard for stopping is less than the probable cause standard for an arrest. However, intuition of an officer, without articulable facts indicating some likelihood of criminal activity, does not rise to a reasonable suspicion justifying a stop. ORS 131.605(4); ORS 131.615(1). The state argues that defendantís wifeís surprised look and furtive movement, taken with the other facts, provide a basis for the stop. When there is evidence that criminal activity has in fact jut occurred, such a gesture may provide a basis for believing that the actor has participated in it. However, in the absence of any evidence of criminal activity, furtive gestures provide no basis for a stop. The stop was illegal and the trial court should have suppressed the evidence (cocaine) seized from the car.]

State v. Jordan, 79 Or. App. 682, 719 P.2d 1327 (1986). [Held: (1) error in admission of officerís testimony regarding defendantís statement made to officer after defendant had invoked right to counsel was harmless error, and (2) trial court had discretion to deny defendantís motion for mistrial.]

State v. Fix, 83 Or. App. 107, 730 P.2d 601 (1986). [Search of defendantís purse was justified under automobile exception to warrant requirement.]

State v. Bennett, 301 Or. 299, 721 P.2d 1375 (1986). [Officers conducted valid warrantless search of closed footlockers contained in narcotics suspectís vehicleís trunk where officers had probable cause to believe that ten pounds of marijuana were somewhere in car but no probable cause to search for a particular container within vehicle. Warrantless search of narcotics suspectís vehicle, incident to arrest of suspect, was valid because magistrate could have authorized search of entire vehicle and contents.]

State v. Kennedy, 68 Or. App. 529 (1984). [As a matter of law, even though the initial contact between defendant and the police only constituted a "stop" within the meaning of ORS 131.615, defendant was in custody and entitled to his Miranda rights from the moment he stepped out of the car in response to the officerís directive. Gun found during subsequent search of car was suppressed as evidence.]

State v. Barndt, 68 Or. App. 755, 683 P.2d 166 (1984). [Held: although, under Kennedy, a voluntary consent to search vitiates prior police misconduct, that rule is not applicable here, because the search of defendantí bag was conducted without consent. The trial court specifically found that Websterís consent to search the truck did not extend to defendantís closed athletic bag, inasmuch as the officer knew that not all the luggage belonged to the person who gave him consent.]

State v. Hanson, 56 Or. App. 427, 624 P.2d 320 (1982). [Held: (1) even if admission of shotgun seized at mobile home was error because shotgun was not listed in search warrant, error was harmless beyond reasonable goubt, where officers properly found shotgun in suitcase which contained stolen tapestry of ship and identification of robbery victim, they properly testified in court as to such observations and there was strong evidence of guilt, so that admission of shotgun was very unlikely to have made a difference in the outcome of the prosecution, and (2) in context of the overwhelming evidence of guilt, instruction concerning accomplice testimony was, at worse, harmless error.]

Batchelor v. Cupp, 693 F.2d 859 (Ninth Circuit, 1982). [Trial court did not commit error, much less error of constitutional magnitude, in admitting photographs of victims naked body, and in particular those exposing her genital area and lower body where there were no wounds. The admission of photographs lies largely within the discretion of the trial court, whose ruling will not be disturbed on due process grounds in a federal habeaus corpus proceeding unless the admission of the photographs rendered the trial fundamentally unfair.]

Youngblood v. Sullivan, 52 Or. App. 173, 628 P.2d 400 (1981). [Held: evidence of a prior rape by defendant, which demonstrated that the modus operandi of the prior incident and the rape for which defendant was charged was unique and virtually identical, was admissible to rebut the defense of consent asserted by defendant.]

State v. Ness, 54 Or. App. M530 (1981). [Execution of a search warrant at night never has been held to be unconstitutional per se, and the record here discloses no aggravating circumstances showing any basis for suppression.]

Hanson v. Cupp, 5 Or. App. 312, 484 P.2d 847 (1971). [Held: evidence sustained finding that evidence, in hands of prosecution but not disclosed by it to defense, as to information volunteered by several people to the police and to deputy district attorney which, if true and accurate, would have exonerated the petitioner was of such character that failure to turn it over to defense was violation of due process.]


State v. Cedarleaf, Motion to Suppress Evidence, Marion County, 1992; Motion to Dismiss Grand Jury, Marion County, 1993; Affidavit of V. Louise Stanfill, Marion County, 1993; research on scope of consent or limited consent searches.

Sample "Defendantís Motion in Limine and Supporting Memorandum." From the OCDLA Document Library.

Sample Appellantís Brief re: "state did not present any evidence that defendantís possession of the weapon was "without lawful authority".