State v. Plew
255 Or. App. 581
Or. Ct. App.2013Background
- Defendant convicted of two counts of first-degree burglary: Holly Lane (March 18, 2009) and Benham Lane (March 26, 2009).
- Defendant moved to suppress statements to police about the Holly Lane burglary, asserting a right to counsel under Article I, section 11 of the Oregon Constitution after obtaining counsel in the Benham Lane case.
- Police interviewed defendant about Holly Lane without notifying his Benham Lane counsel; photographs from the Benham Lane investigation were used to question him about Holly Lane.
- Herzog implicated defendant in both burglaries; the same detective conducted both investigations.
- The trial court held the burglaries were factually unrelated and denied suppression; the appellate court later evaluated whether the crimes were factually related for the right to counsel.
- The court reversed the Holly Lane conviction, remanding for a new trial, and affirmed the Benham Lane conviction; additional arguments about voluntariness of waiver were not reached.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were the burglaries factually related for purposes of the right to counsel? | Potter-like relatedness; same neighborhood and close temporal proximity. | Two burglaries constitute a single episode; counsel must be notified. | Yes; burglaries factually related; right to counsel violated. |
| Did the trial court err in denying suppression given the relatedness finding? | McAllister should have notified Benham Lane counsel before Holly Lane questioning. | No relatedness means no duty to notify. | Error; suppression denied should have been granted; reversal on Holly Lane. |
| What is the applicable standard for determining relatedness under Sparklin and Gilmore? | Factors show same suspect, proximity, overlapping evidence. | Factors insufficient to link the episodes. | Factors support relatedness; Oregon precedent applied. |
Key Cases Cited
- State v. Sparklin, 296 Or 85 (1983) (right to counsel; when attorney present in related cases)
- State v. Gilmore, 350 Or 380 (2011) (interrogation requires attorney notification in related matters)
- State v. Potter, 245 Or App 1 (2011) (relatedness assessment for multiple offenses; temporal proximity considered)
- State v. Ehly, 317 Or 66 (1993) (standard of review for suppressions; factual determinations)