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Benjamin Wright Haile

Benjamin Haile’s Answers

32 total

  • Got pulled over entering my PARKING LOT under suspicion of DUI, can the cops search my vehicle?

    As I was driving home. I put my blinker on to turn into my parking lot and the cops turned on their lights. So I proceeded to my parking space. The cops did arrest me. BUT do they have the legal right to search my vehicle with out my permission, ...

    Benjamin’s Answer

    Mr. Larsen is correct. There are several exceptions to the warrant requirement that can allow police to search a vehicle in various situations. But the only one that would apply to the facts you described is the one called the search incident to arrest. When police make an arrest, they can search the immediate vicinity of the person that they arrest. If the arrest occurs in a vehicle, they can search the passenger compartment of the vehicle but not the trunk.

    The police could NOT do an inventory search in the circumstances you described. They can only do an inventory search if they are towing the vehicle. They CANNOT to the vehicle if it is safely parked at the time of the arrest. A decision of the 9th Circuit U.S. Court of Appeals makes this clear: Miranda v. City of Cornelius.

    Mr. Justice made a very valuable recommendation about the 10 day time limit to request an implied consent hearing. This hearing can be important to your defense in several ways. His admonition to not write about your case in an open forum such as this may be a little bit overly cautious. The chance of your statement being traced back to you and used against you in court seems extremely remote to me, especially since you have omitted the date and specific location. You could have been even more prudent about withholding identifying information while still providing relevant information for discussion of your situation by not mentioning the county in which it occurred and not providing your accurate city of residence.

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  • What do I need to file in court to initiate a claim against a city?

    State of Oregon: I filed a notice of tort in August 2012. I want to proceed with a claim against city of Hubbard in Clackamas County.

    Benjamin’s Answer

    I don't have enough information about you claim to tell you much about how to proceed. For most claims against a municipality, the statute of limitations is two years. ORS 30.275. You could still have a claim for the events you gave notice of in 2012 if they were part of a continuing tort that extended until less than two years ago. Otherwise, you have probably waited too long. Other exceptions to the statute of limitations could apply. If you are serious about filing a claim, you should share more information with an attorney.

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  • A radio station is considering sending its reporters to stories involving the police w/their own body cameras.

    Photos, taken several times a minute, would be uploaded to station social media accounts. Pros are seeing the expressions and gestures of police which their own body cameras wouldn't show. Also, cameras don't record sound so no two-party restric...

    Benjamin’s Answer

    This is an interesting question. It will probably become more and more significant as small video cameras become more prevalent in news reporting.
    The Fourth Amendment prohibits police or other government officials from engaging in unreasonable searches. The meaning of the word “unreasonable” in this context has been defined by the courts over the centuries since the Fourth Amendment was ratified by the state. Protections of the Fourth Amendment are particularly strong within the home. If police allowed a reporter to come into a home and take pictures without the resident’s permission, it would usually be an unreasonable search. However, the Fourth Amendment only protects us against the action of the government, in this case the police. The reporter is not part of the government. The reporter could be sued for a trespass under state tort law for going into the home without permission. The taking of the pictures and subsequent use of those pictures, if any, would be part of the damages.
    It would be particularly interesting to try to get the courts to extend Fourth Amendment protection to cover the actions of the reporter. The argument would be that the reporter was using the power of the police as a way to get in a place where the reporter could take the pictures. The courts have held in other situations that if someone uses the power of the police to accomplish their own goal, and that goal would be unconstitutional if done by the government, then the private person can be considered a government actor and the constitutional protections apply to them.

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  • Can the arresting officer call my landlord and tell him what was found in my house and what they SUSPECT me of doing?

    After a search warrent was served and i was subsequently arrested, the arrestinv officer called my landlord and told hom what was found at my house (drugs) and what they suspected me of (dealing) which ultimately lead to my eviction. Is that legal?

    Benjamin’s Answer

    It is probably legal, and you probably have no civil claim against the officer.
    Police officers can legally do almost anything that any other person can legally do (and more). Therefore, if a stranger found out that you had drugs in your home and told your landlord, that would not be illegal. Likewise, it is not illegal for a police officer to give information to your landlord.

    If a person makes false statements about you that harm you, it is possible that you would have a claim for slander, whether they are a police officer or not. A police officer might be able to raise a good faith defense to slander (if the officer reasonably believed that the information was true) that a non-police officer would not be able to raise. However, it does not sound like you are alleging that the statements to your landlord were false.

    One exception to the equal application of civil law to police and non-police is that police can be liable for depriving you of rights while they are acting under color of law. In your situation, if the officer deprived you of the right to remain in your home without due process, the officer could be liable. However, this would probably only be a violation of your right if the police officer had given false information to the landlord.

    It is a common practice in Portland and Eugene -- part of their "community policing" program -- for police to pressure landlords to evict people who they suspect of dealing drugs.

    I would need more information to give a definite answer, or to give legal advice specific to your situation.

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  • Do I need a lawyer for medical malpractice?

    I was in a serious accident in 2002, and later had back pain as a result. I've had a few xrays, CT scans and one MRI. When a doctor got the results back from a few years ago, he said that I had minor Scoliosis, and Schmorall's (spelling?) node. A ...

    Benjamin’s Answer

    Oregon has a statute of ultimate repose which generally prohibits medical malpractice claims that are discovered more than five years after the procedure that caused the injury. It's not clear to me whether the failure to detect the missing piece of your spine occurred more or less than five years ago. Further, there are rare exceptions to the statute of ultimate repose. For example, if the delay in your discovery of the injury is the result of fraud or deception.

    If the missed opportunity to diagnose your problem occurred less than five years ago, or you think there is a reason for an exception that should give you more time, then I urge you to consult a lawyer. Otherwise, I think there is no point.

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  • What are my rights when something is taken as evidence?

    I have a couple items that were taken as evidence by the police, but i havent been charged with anything. what are my rights? is there any way i can get my stuff back? how long are they allowed to hold it for?

    Benjamin’s Answer

    When police have probable cause to believe that something is evidence of a crime, they can take it and hold it for a reasonable amount of time. (If a criminal case is filed, then they would be able to hold the evidence at least until the case is closed.) If no criminal case if filed, which is apparently your situation, a reasonable length of time to hold the evidence depends on the circumstances. Courts will typically give the police a year. But if you could show a compelling need for the property, and/or a low value as evidence, that might persuade a court to order return of the evidence sooner.

    In Oregon you can file a motion for return of things seized in the court of the county in which your property was taken by police. (ORS 133.633)

    If the police did not reasonably believe that they had probable cause when they took the property as evidence, then they have violated the Fourth Amendment to the US Constitution and Oregon law against conversion of property. This could be another way to demand return of the property plus compensation for inconvenience from not having use of it, and emotional distress caused by their taking it. But you would need a way to prove that the officers lacked probable cause.

    "Probable cause" means information that would cause a reasonable person to believe that there was a fair probability that your property would be evidence of a crime.

    If you could be a suspect, be careful not to talk to the police or prosecutor about the evidence, because you might unknowingly give them information that they would use against you.

    I can only give general advice because I do not have enough information about your situation to provide legal advice.

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  • How can I get my deceased dads medical records?

    We are going through a bad drug lawsuit. We need medical records of my dad whom died a couple years ago. My sister had Power of attorney if that helps. Cost of these records?

    Benjamin’s Answer

    To obtain the medical records of a deceased person in Oregon, someone has to be appointed by the court to serve as Personal Representative (PR) of the estate of the deceased person. The first in line to fill this role is the spouse, followed by the parents and children of the deceased person. Anyone can serve as PR, provided that all people with an interest in the estate consent. To get the court to appoint a PR, a probate case is opened by the filing of a petition for appointment of a PR. Once the court enters a limited judgment appointing the PR, the PR can sign an authorization to release medical records. The time from filing a petition to entry of judgment appointing a PR would be one to two months. The time from submitting a medical records request with a release signed by a duly appointed PR to obtaining the records would be two to six weeks.

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  • My son's spouse died of a wrongful death in the county jail. He needs to sue but can't afford a lawyer.

    He also needs to find out if there was a will. what assets his spouse had, etc. His family is trying to sue the county but is excluding my son. They want him to sign papers so they can have access to the medical records but I told him not to yet. ...

    Benjamin’s Answer

    An early step in determining whether there is strong claim against a jail for wrongful death is to obtain a copy of the medical records. To do this, a probate case needs to be opened in state court and someone needs to be designated as the personal representative (PR) of the estate of the person who died. Then the PR can obtain the medical records or authorize release of the records to an attorney. Without authorization of the PR, it is impossible for anyone to get the records because all medical records are protected by confidentiality laws.

    The spouse of the person who died is the first in line to take the role of PR. Your son could legally fill this role while in prison. But it might make sense for someone else to do it. The next people in line for this role are the parents of the person who died. One of them can only be appointed if your son consents or if the probate judge decides that he is not qualified to serve. The document that they are asking him to sign is probably a consent for someone else to serve as PR.

    If an attorney determines that there is evidence to support a wrongful death claim, your son would be a beneficiary of that claim regardless of whether he is serving as the PR. The PR has a duty to litigate the case for all of the beneficiaries listed in the wrongful death act: spouse, parents, and children. That claim would be a separate legal case from the probate case, and might be in a completely different court. Therefore, the fact that they want him to sign papers to allow someone else to be PR is not necessarily a sign that they are trying to exclude you son completely.

    I litigate wrongful death claims against county jails in Oregon. I also open probate estates in these circumstances. You or your son can contact me if you want to discuss the case.

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  • Attorneys tell me my case is to much for them or they don't call back.?. I am in deepshit and also a target.

    Eye have been flooded ,burned out then removed from residence.My civil rights have been violated police misconduct Columbia county sheriffs office.I was forced by Columbia county sheriffs office against my will to remove a long view fiber gate. I...

    Benjamin’s Answer

    You said that attorneys have told you that your case is too much for them or they don't call back. When you are seeking an attorney for a violation of your right by police, you often need to organize your story and present it to them. It's not like finding an attorney for an auto accident case. Those cases are much simpler. As an attorney who specializes in suing the police, I can say from experience that often there is not enough evidence to win these cases. If the case goes to trial, you will face a jury of people who start out wanting to think the police are honest and good, and want to give them a break if they make a mistake once in a while. The evidence has to be so strong that you can change the entire world-view of many of the jurors.

    Therefore, when you try to find an attorney to represent you, it helps if you can explain each of the following in one sentence or less.
    1) One or two specific things that someone did wrong.
    2) How you can prove that they did this wrong thing with evidence other than your own testimony.
    3) The biggest way that it harmed you.

    Some attorneys who sue the police are very courageous and care deeply about keeping us all safe from those few bad apples that abuse the power and trust that we place in police officers. But those bad officers are good at hiding what they do. We have to chose our battles carefully. And that means you have to show us why your case is the one that can be won.

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  • Can you explain when under arrest do you have the right to have certain item. i.e. your keys, cell phone,purse taken with u?

    don't u have the right to be booked into jail with your most important items in life like say your keys to your vehicle and home? Your personal cellphone...wallet/purse

    Benjamin’s Answer

    It is possible that you are asking if the police are required to bring your personal property with you to the jail, where it is put into storage as part of the booking process. If that is what you are asking, the answer is yes. The police cannot cause you to lose your personal property by leaving it behind when they arrest you.
    However, if the items you described were not in your possession when you were arrested, the police do not have a duty to go looking for them, even if you tell the police where the items are located nearby.
    Once the police deliver you to the booking area at the jail, the property should be placed in safe storage.

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