- Court: Oregon Court of Appeals
- Area(s) of Law: Criminal Law
- Date Filed: 03-02-2016
- Case #: A157395
- Judge(s)/Court Below: Duncan, P.J. for the Court; DeVore, J.; & Flynn, J.
Defendant appealed a conviction of felon in possession of a restricted weapon (ORS 166.270(2)). Defendant was sleeping in his car when a police officer discovered him and asked for identification. After running Defendant’s identification, the officer discovered that a felony parole violation warrant had been issued for Defendant’s arrest. The officer took Defendant into custody and then returned to the car and looked around. In plain view, Officer discovered a “leather sap” which is a restricted weapon under ORS 166.270(2). The State conceded on appeal that under State v. Bailey and State v. Benning, the trial court erred in denying Defendant’s motion to dismiss evidence. The Court held that, consistent with those cases, the trial court should have analyzed attenuation under the totality of the circumstances rather than using the now outdated Dempster rule. Reversed and remanded.