- Court: Oregon Court of Appeals
- Area(s) of Law: Criminal Procedure
- Date Filed: 03-31-2021
- Case #: A167063
- Judge(s)/Court Below: Armstrong, P.J. for the court; Tookey, J. & Aoyagi, J.
- Full Text Opinion
Defendant appealed a conviction of unlawful possession of a firearm. Defendant assigned error to the trial court’s denial of a motion to suppress. Defendant argued that the warrant requirement exception recognized in State v. Fair, 353 Or 588, 302 P3d 417 (2013), did not apply to him, and seizure was improper. The state contended that seizure was necessary due to the gravity of the crime that was witnessed (murder that may be gang related), belief that Defendant would evade police, and the finally duration of the seizure was brief so in total it should be considered reasonable. Under Article I, Section 9 and State v. Fair, the “material witness” exception to the warrant requirement does not justify seizure unless the seizure is “reasonably necessary to verify the identity of a material witness or obtain an account of a crime.” 353 at 609. The Court found that, under the circumstances, officers had no need to stop anyone to obtain their identity, including appellant. Rather, the state should have applied for a material witness order under ORS 136.608. Accordingly, the court held that, under the Fair test, the stop of a likely witness is constitutional only when officers are responding to an incident involving “danger of forcible injury.” Further, the seizure here was not “reasonably necessary” to verify or obtain the identity of a material witness or to obtain an account of the crime. Reversed and remanded.