Pubdate: Thu, 16 Mar 2006 Source: News-Review, The (Roseburg, OR) Copyright: 2006 The News-Review Contact: http://www.newsreview.info Details: http://www.mapinc.org/media/2623 Author: John Sowell Bookmark: http://www.mapinc.org/pot.htm (Cannabis) OREGON APPEALS COURT RULES ON DRUG CHARGES The Oregon Court of Appeals last week overturned one Douglas County drug conviction and upheld another. In the first case, the court ruled that officers from the Roseburg Police Department improperly searched a backpack found on the front seat of a pickup without first obtaining a warrant. The backpack contained marijuana that was allegedly being sold by the suspect. In the second case, the court ruled that a defendant failed to timely file a motion to dismiss charges on the grounds of double jeopardy. The state retried the defendant after a jury failed to muster enough votes to either convict or acquit. When the case was tried a second time, the defense waited too late to raise the issue of double jeopardy, the court ruled. In the marijuana case, Officer Todd Crouse of the RPD was on patrol in October 2002 when he spotted a man in a pickup parked in downtown Roseburg. The man, who was wearing a distinctive camouflage hat, and the pickup matched the description of a purported drug dealer supplied by a confidential informant. Crouse watched Glide resident Daren W. Newport appear to pass something to a passenger in the pickup. While Crouse could not see what was being exchanged because the men's hands were blocked from view, he could tell they were trading something. Crouse, who had only been on the job about 18 months, called for assistance from Officer Todd Koberstein, who had extensive training and experience in drug cases. He confirmed the informant who had supplied Crouse with the information was a drug user whose tips had proved reliable. By the time Koberstein reached the scene, Newport had gone inside the nearby Wild Rose Lounge. The officers entered the tavern and asked Newport to talk with them outside. Koberstein told Newport they suspected him of drug activity and asked him for consent to search his person. Newport agreed and the officers found $2,038 in cash, along with a small notebook that included notations that appeared to list drug transactions. Koberstein then asked Newport if they could search the backpack on the seat of the pickup, but Newport refused. The officer searched the backpack anyway, finding marijuana. The appeals court concluded that police had probable cause that the backpack might contain evidence of drug-related crimes. However, because Newport was contacted inside the tavern and the backpack had been left in the pickup, it did not give officers the right to search the backpack without a warrant. Douglas County Circuit Judge William Lasswell had allowed the evidence found in the backpack to be introduced at trial. Newport was convicted of possession, manufacture and delivery of a controlled substance. The Court of Appeals overturned the conviction and sent the case back to Circuit Court. In the second case, Karen S. McClendon was convicted of possession, manufacture and delivery of a controlled substance. She challenged her conviction of the latter two charges on double jeopardy grounds. McClendon was arrested in April 2002 and found guilty by a jury of the possession charge. On the other charges, the jury voted 7-5, but lacked the votes to convict. Although the jury was dismissed, neither party asked for a mistrial based on the jury's failure to either convict or acquit McClendon. Prosecutors retried the defendant on the possession and delivery charges. Although McClendon objected to being tried again, her attorney didn't file a timely motion questioning the action until all the evidence in the case had been presented. Under Oregon law, a motion to set aside an indictment must be made at the time of arraignment or within 10 days. McClendon did not do that, nor argue that cause existed for needing additional time. As a result, the appeals court rejected her claim. - --- MAP posted-by: Beth Wehrman