Tuesday, October 25, 2011

Judge Grants Motion to Suppress in Unlawful Search Case

                A motion to suppress was heard Friday October 14, 2011 in Marion Co. Circuit Ct. The charge, Delivery of Marijuana to a Minor, carried a guidelines sentence of 18 months prison. Drug cases are usually about the search. Where did they find it? How did they put their hands on the drugs? What can we do to eliminate the evidence? The answer is found in the Oregon and U.S. Constitution. Amendment IV to the US Constitution provides the basis for suppression when the police have conducted a search which violates reasonable search and seizure laws.
                In the Oct 14 case, police had been called to a park where a group of young men were “smoking marijuana” according to the named caller. When police arrived, they saw one of the male individuals smoking from a makeshift pipe just before throwing it in the bushes. Police called for him to retrieve the pipe, then ordered everyone to “take the weed” out of their pockets. This constituted an unlawful search, a search without probable cause or a warrant. The judge ruled in favor of the defense and granted the motion to suppress. 

                Usually, when a motion to suppress evidence is granted, all of the evidence from that point forward is also suppressed. This is known as “fruit of the poisonous tree” from the landmark case of Wong Sun vs U.S., 371 US 471 (1963). The reasoning goes that, where an unconstitutional police search uncovers evidence, any evidence subsequently gathered is also tainted.
In the Marion Co. case, the court ruled that the stop and search was conducted in violation of the 4th Amendment. Since the search yielded evidence that could not be used, any evidence obtained following was also inadmissible. The State may now dismiss or appeal. 

- Gig Wyatt, Attorney at Law
Harris, Wyatt, and Amala
www.SalemOregonCriminalDefense.com
Salem Oregon

Friday, August 12, 2011

Salem Oregon Criminal Defense
Attorney Wins Another DUI Case

On July 20, 2011 a Yamhill County jury acquitted a client of Gig Wyatt, a Salem Oregon DUI criminal defense attorney, after 4 hrs deliberation. The defendant had crashed his vehicle on the side a a rural highway. A citizen stopped to render assistance and called 911 to report the accident and a “possible drunk driver.” She claimed she made a positive identification, though Mr Wyatt pointed out the it was very dark and she was certain she did not get out of her car. She observed him for a few brief seconds but testified she could ID him 16 after the event. Defendant walked home. Police arrived and, after field sobriety tests (FST’s) he was arrested for DUII. “I have found that, in order to win a DUII, the jury has to feel some discomfort level with the police”, according to Mr. Wyatt. Though 2 police officers testified, one of them left out a field sobriety test from his report that the other officer remembered him doing. Big mistake. This allowed the door to open for argument that there may be other mistakes, the officers may not be accurate, or they may feel a need to disregard otherwise beneficial evidence for the defense. “Normally, I tell the jury that these are fine police officers with whom you just may disagree with their opinion. That way, the jury doesn’t feel as though you are personally attacking the police.  Even though they may testify that, in their opinion, he failed FST’s, our defense reminded the jury that they are the judges of the facts, and if they disagree with the opinion of the police they may feel free to do so. "This is usually set up in jury selection with questions about feeling ok about disagreeing with someone else’s opinion, even a police officer”, Mr Wyatt said.
One of the police officers testified that the defendants speech was slurred, the other officer did not. The defense strategy was to leave this alone to argue in a closing argument. A question to the police officer may have prompted a response you don’t like. It was easy enough in closing for Mr Wyatt to say “both police officers heard him talk, but only one testified his speech was slurred…why?”
After 2 ½ hrs, the jury came back with a question. Questions often favor the defense. Just before 4 hrs (its torture to wait!), they had another question. The judge said he thought they wouldn’t be long after that and, predictably, they delivered “not guilty” within a few minutes.

Gig Wyatt, Attorney at Law
Harris, Wyatt, Amala, LLC.
5778 Commercial St. SE
Salem, OR 97306
503-378-7744
www.SalemDUI.com
www.SalemOregonCriminalDefense.com

Monday, August 8, 2011

License Suspension Hearing - DUI

People sometimes ask why is it important to request a license suspension hearing with DMV in a DUII case. Often times these questions are posed from someone who is already suspended, doesn't need their license, possibly an out of state driver or some other reason. While the license suspension issue may be less important to some than others, the information learned at the implied consent hearing is invaluable. Keep in mind that at this hearing the arresting officer will actually testify about all of the facts surrounding the arrest. Often we are able to learn important facts about the stop, the field sobriety tests, the officer's subjective reasons for probable cause and important details about the breath test or refusal. In the hearing, I have learned significant facts which have supported suppression of the stop or arrest (resulting in a dismissal of the DUII), or information leading to the suppression of the breath test or the refusal. All of these factors are helpful in the overall fact-finding determination of the case.


Gig Wyatt, Attorney at Law
DUII Defense
www.SalemDUI.com

Harris, Wyatt, Amala, LLC.
5778 Commercial St. SE
Salem, OR 97306
503-378-7744

Thursday, June 9, 2011

Measure 11 Sex Offenses

In March I tried a 6 ct Measure 11 Sex Offense case where a 15 yr old accused my client of repeatedly raping her when she was in foster care from age 6-8. We located witnesses who slept in the same room as the complainant who testified that my client was a polite young man (he was 15 at the time) who never came in the room. The complainant said he came in the room every night to molest her. The foster parent, as well as several other corroborating witnesses, testified that an alarm was on the door that everyone could hear when someone came near the room and that it could not be turned off without going off for a few seconds. The state had a medical witness who testified that, upon examination, there was no physical evidence that the complainant was raped.  After 1 ½ years awaiting trial (client was out on bail), and 2 days in trial, he was acquitted in 30 minutes.

Gig Wyatt
Harris, Wyatt, Amala, LLC.
5778 Commercial St. SE
Salem, OR 97306
503-378-7744

Case Study - Oregon DUII

I tried a case recently in Wash. Co. that I felt would be pretty difficult to win. According to the officer, he failed all the field sobriety tests. For example, he shuffled his feet while balancing on 1 leg and ended up 7 feet away from where he started.  The jury was out for an hour and came back “not guilty.” The officer did the typical exaggeration on driving and field sobriety tests but I felt a couple things really turned the jury around. In the officer’s 7 page report regarding my client, he used the wrong name on 1 or 2 occasions. I learned in the DMV hearing that he simply does a “cut and paste” (as I called it) on the computer and forgot to change the name. I pointed out that the remainder of his report could contain the same errors. That argument was supported by the fact that he testified that my client held his foot up on the “1 leg stand” for 12 seconds, rather than 30 seconds as required. However, at the DMV hearing, he testified that my client held his leg up for 28 seconds.  The jury felt exaggerations like these undermine the credibility of the officer and acquitted my client.

Gig Wyatt
Harris, Wyatt, Amala, LLC.
5778 Commercial St. SE
Salem, OR 97306
503-378-7744