This Appellate Week
Stop – Passenger – No Show of Authority
It is not a stop when an officer calmly orders a passenger out of a stopped car and asks whether he has any drugs or weapons. Even if there’s a second officer on the other side of the car. A reasonable person would feel free to leave because there’s no show of authority like a drawn weapon or a confrontational tone. Prior case law establishes that neither asking a person to get out of a car nor asking if a person has weapons or drugs is a show of authority. The court reverses it’s prior opinion in light of State v Ashbaugh. State v Smith
Witness Comments on Credibility – When Statement is From Non-Testifying Witness
While a witness may not comment on another witness’s credibility, a witness may testify to an out of court comment about a witness’s credibility. In this case, an officer testified at defendant’s sex abuse trial that when defendant was asked whether he would believe the victim if she made an allegation of sex abuse, defendant said he would believe her. Relying on State v Odoms, the court says that the point of the prohibition on credibility comments is “only to preclude testimony by one trial witness about whether another trial witness is telling the truth.” It doesn’t bar statements made by a nonwitness about a witness’s credibility.
The court also finds that a Southard error was harmless where the trial judge, after a bench trial, expressly disclaimed reliance on the diagnosis: “I do not rely on it at all in this case.” State v Brooks
Compensatory Fine – Economic Damages – Witness’s Plane Ticket for Trial
The court may not impose a compensatory fine to reimburse a witness for a plane ticket used to get to trial. A compensatory fine can be imposed only when economic damages are caused by defendant’s crime. Economic damages are damages that could be recovered in a civil action. The cost of a plane ticket, purchased to attend trial, is a cost not damages. The costs of litigation are not economic damages. Only the damages caused by the crime may be imposed as a compensatory fine. Note: this was a delinquency case but the issue is identical in juvenile and adult court. In the Matter of S.J.P.
Dependency – Change in Permanency Plan – Reliance on Facts Outside Jurisdictional Judgment
A court may not rely on facts outside the jurisdictional judgment to change a permanency plan from reunification to adoption. Here, the court relied, at least partly, on allegations of sexual abuse and evidence of sexualized behavior to find that the barriers to reunification were too high to be accomplished in a reasonable amount of time. Because sexual abuse was not part of the jurisdictional judgment, it could not form the basis, even in part, for a change in the permanency plan. Neither mom nor dad had adequate process available to challenge the allegations and their impact on the likelihood of reunification. DHS v M.T. and N.T.
Sentencing – Maximum – Prison plus Post-Prison Supervision
A defendant may not be sentenced to 36 months prison followed by 36 months post-prison supervision on a C felony. The term of post-prison supervision, when added to the prison term, shall not exceed the statutory maximum. OAR 213-005-0002(4). State v Lowell
This whole line of cases has taken a non-intuitive turn since Ashbaugh. I believe the court has even pointed out that the question of whether a person objectively feels free to leave is more of a legal standard than an actual analysis of what a real person would feel. There was a case a few weeks ago where a police officer pulled up behind a parked vehicle and shone the police spotlight at the rearview mirrors. That person should have felt free to leave, according to the court, because there was no show of authority like guns or overhead lights. But, really, nobody would actually feel free to leave with a police car behind them, officer walking up to the car and the spotlight shining at them.
In Smith, officer Manzella asked defendant, ‘Do you have anything on you you
shouldn’t have, do you have any weapons, anything like that?’
No reasonable lay person would believe this was casual conversation. That question by it’s very nature is the precurser to a search of the person. If the officer had no intention of patting down or otherwise searching the passenger, what was the purpose of the question?At trial, the officer can testify to casual context of the conversation when discussing tone. However, the nature and content of the question unequivically informs the passenger of the impending search.
Law enforcement officers would not take kindly to any person exercising their right to leave. There would be more incidents of excessive force, more resisting arrest charges, and a flood of lawsuits from the chaos this would create if the general public (being reasonable) understood “free to leave” in the same context as the COA.
A reasonable person is generally not versed in the law with respect to “show of authority” from law enforcement. Law enforcement officers wear uniforms, carry firearms, display badges, and state directives with aurthoritative tone all with the sole purpose of showing authority.
If a person were to simply leave a scene without following the directive of the officer or answering questions, the officer would then arrest the person on other grounds.
Law enforcement officers are allowed to spontaneously create probable cause. Simply refusing to answer a question or refusal to allow a search would be used against the person as probable cause.
This case has two officers in uniform with firearms. The officer asked the passenger to get out of the car. From that very moment, the fate of this defendant was arrest, charged, plea/trial and sentence.
Police officers do not ask passnegers to get out of vehicles without cause. Had the officer informed the defendant the car was going to be towed, I would agree with the opinion. Leaving this piece of information out of the demand led the defendant to believe he was not free to leave.
Lastly, I would have to ask did the officer verify the passenger was unable to legally drive the vehicle as an alternative to towing? Or is it standard procedure to impound vehicles when the driver has a suspended license?