Attorney Rachel Philips's Legal Cases

Criminal defense

State v Mohamed

Mar 22, 2022

OUTCOME: Conviction on Count 1 reversed and remanded; remanded for resentencing; otherwise affirmed

PER CURIAM Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII) (Count 1), and unlawful possession of a controlled substance (PCS) (Count 2),entered after ... a jury trial.1 He raises two assignments of error. We reject his second assignment without discussion and write to address his first, in which he asserts that the trial court erred in denying his motion to suppress evidence obtained as a result of warrantless breath and urine tests that, in his view, violated his rights under Article I, section 9, of the Oregon Constitution. In particular, defendant contends that the state did not develop a record demonstrating that his consent to those tests was voluntary, and that the state failed to show that another exception to the warrant requirement applies, rendering those tests unconstitutional warrantless searches. The state concedes that it did not create a record sufficient to establish that defendant’s consent to the breath and urine tests was voluntary, and also agrees that it did not rely on any other exception to the warrant requirement below. The state therefore concedes that the trial court erred in denying defendant’s motion to suppress evidence of the breath and urine tests and other evidence derived from that evidence, and that we should reverse and remand the conviction for DUII. We agree that, under the circumstances presented here, the trial court erred in denying defendant’s motion to suppress, accept the state’s concession, and reverse and remand the DUII conviction. 1 Defendant was acquitted of one count of giving false information to a police officer (Count 3).

Criminal defense

State v Soprych

Mar 16, 2022

OUTCOME: Reversed and remanded.

Defendant appealed a judgment of conviction of unlawful possession of methamphetamine. On appeal, defendant argued that the trial court erred in denying his motion for a mistrial. Specifically, defenda ... nt challenged prosecutorial statements made during voir dire. A prosecutor’s reference to or comment on a defendant’s invocation of a constitutional right, such as the right to counsel, the right to remain silent, or the right to a trial, may prejudice a defendant’s ability to have a fair trial if the jury is likely to draw a negative inference from the exercise of that right. State v. Smallwood, 277 Or 503, 505-06, 561 P2d 600, cert den, 434 US 849, 98 S Ct 160, 54 L Ed 2d 118 (1977). The court explained that the prosecutor’s hypothetical, posed to the jury during voir dire, was “a thinly veiled comment on defendant’s choice to exercise his right to a trial and was improper.” In fact, as the Court noted, “the prosecutor readily admitted that the implication she was seeking to draw was that defendant was exercising his right to a trial even though the prosecutor believed, and by extension the jury should as well, that the evidence of guilt was overwhelming.” The court emphasized that prosecutorial statements that distort the presumption of innocence can necessitate a mistrial. State v. Worth, 231 Or App 69, 76, 218 P3d 166 (2009). Thus, the Court concluded that, “given the context, the voir dire question and hypothetical undermined the presumption of innocence and deprived defendant of an opportunity for a fair trial in front of an impartial jury, as guaranteed under both the state and federal constitutions.”

Criminal defense

State v Pitcher

Jan 26, 2022

OUTCOME: Reversed and remanded.

The state concedes that the trial court erred insofar as it instructed the jury that defendant had a burden to prove self-defense. We accept the state's concession and conclude that the court erred whe ... n it instructed the jury that self-defense was an affirmative defense on which defendant had a burden of proof.

Criminal defense

State v Bock, 310 Or. App. 329 (2021)

Mar 31, 2021

OUTCOME: Reversed and remanded.

Defendant appealed eight separate convictions: three counts of attempted aggravated murder with a firearm, one count of attempted murder with a firearm, one count of assault in the second degree, and o ... ne count of felon in possession of a firearm. The two remaining convictions were not addressed by the court. Defendant assigned error to the trial court’s denial of the Defendant’s motion to suppress. On appeal, Defendant argued that the evidence, a photo of a gun, was obtained outside the confines of the warrant, and therefore, the State could not establish that he was in possession of the weapon. The State responded that as the plain view doctrine permitted the admission of the photo discovered outside of the scope of the electronic search warrant as the warrant did not have the “specificity” as required under Article I, Section 9. The plain view doctrine does not apply to digital searches because “electronic devices contain ‘unprecedented’ amounts of personal information, and, unlike physical searches, searches of electronic devices require examination of at least some information that is beyond the scope of the warrant.” State v. Mansor, 363 Or 185, 208, 220, 421 P3d 323 (2018). Accordingly, the Court found that the trial court erred in admitting the photo of the weapon.

Criminal defense

State v. Lambert

Jun 18, 2014

OUTCOME: Convictions on Counts 2 and 3 vacated and remanded for further proceedings.

A jury convicted defendant of two counts of burglary in the second degree (Counts 2 and 4), ORS 164.215, and two counts of criminal mischief in the first degree (Counts 3 and 5), ORS 164.365. On app ... eal, defendant assigns error to the denial of his motions to suppress evidence. Defendant argues that evidence resulting from the seizure of his vehicle should be suppressed because the vehicle was illegally seized when police, acting without a warrant, towed the vehicle to an impound lot. Defendant argues further that the warrant that police later relied on to search the vehicle was issued without probable cause because it was based on stale information. Defendant also assigns error to the denial of his motion for a judgment of acquittal on the burglary charges, contending that a canvas tent used for work activities was not a "building" within the meaning of ORS 164.215. Held: The trial court erred in ruling that the warrantless seizure of defendant's vehicle was lawful. The state did not carry its burden to prove that the "administrative seizure" exception to the warrant requirement applied; the state failed to show that police suspicions about criminal activity played no role in the decision to tow defendant's vehicle. The trial court did not determine, however, whether the challenged evidence would have been discovered regardless of the illegal seizure. That is an issue for the court to resolve on remand based on the existing record. The trial court correctly rejected defendant's argument that the affidavit submitted in support of the warrant application was stale. The issuing judge could reasonably have determined that the items listed in the affidavit were more likely than not to still be in the vehicle. Finally, the trial court correctly denied defendant's motion for a judgment of acquittal. The tents were buildings for the purposes of ORS 164.215 because they were "adapted" for use as places of business. Convictions on Counts 2 and 3 vacated and remanded for further proceedings; otherwise affirmed. (Trial attorney on this case, not appellate attorney.)

Criminal defense

State v Moresco

Jun 13, 2012

OUTCOME: Conviction vacated and case dismissed.

Defendant appeals a judgment of conviction for giving false information to a police officer, ORS 162.385(1)(b), arguing that the trial court erred in denying her motion for a judgment of acquittal ... because no rational trier of fact could have found that the officer to whom she lied about her identity had asked for her name for the purpose of arresting her on a warrant. Held: To demonstrate that a defendant violated ORS 162.385, the state must show (1) that the person knowingly uses or gives a false or fictitious name, address or date of birth to any peace officer and (2) that the officer asked for that information for the purpose of issuing or serving the person a citation or arresting the person on a warrant. Because the evidence in the record was insufficient to allow a rational trier of fact to find that the officer requested defendant's identification for the purpose of arresting her on a warrant, the trial court erred in denying her motion for judgment of acquittal. Reversed. (Trial attorney on this case, not appellate attorney.)

Criminal defense

State v. Parker

Apr 27, 2011

OUTCOME: Reversed and remanded, conviction vacated, case dismissed.

This case is on remand from the Oregon Supreme Court, which vacated the Court of Appeals' prior decision, State v. Parker, 225 Or App 610, 202 P3d 205 (Parker I), adh'd to as modified on recons, 227 ... Or App 413, 206 P3d 259 (2009) (Parker II), and remanded for reconsideration in light of State v. Ashbaugh, 349 Or 297, 244 P3d 360 (2010) (Ashbaugh II). State v. Parker, 349 Or 663, ___ P3d ___ (2011) (Parker III). In Parker I, the Court of Appeals vacated the trial court's denial of defendant's motion to suppress evidence found during the search of defendant's person and remanded the case to the trial court to determine whether "defendant subjectively believed that the officers had significantly restricted his freedom of movement." 225 Or App at 616. The Court of Appeals' holding in that regard was predicated on its decision in State v. Ashbaugh, 225 Or App 16, 200 P3d 149 (2008) (Ashbaugh I), which the Supreme Court reversed in Ashbaugh II. The issue on remand is whether, in light of Ashbaugh II, the encounter between defendant and the officers constituted a seizure under Article I, section 9, of the Oregon Constitution. Held: Here, the officer (1) asked defendant, a passenger in a stopped vehicle, if he had any warrants; (2) requested defendant's identification; (3) wrote down defendant's name and date of birth; and (4) then immediately returned to his vehicle and ran a check to determine whether defendant was the subject of any warrants. Under those circumstances, a reasonable person would conclude that he or she was the subject of an investigation and not free to leave. Reversed and remanded. (Trial attorney on this case, not appellate attorney.)

Criminal defense

State v. Koroteev

Oct 08, 2008

OUTCOME: Conviction vacated, case dismissed.

Defendant appeals a judgment of conviction for possession of a controlled substance, former ORS 475.992(1) (1995), renumbered as ORS 475.840 (2005), assigning error to the trial court's denial of his m ... otion to suppress. He argues that the arresting officer lacked probable cause to believe that he was engaged in committing the crime of attempted theft when he was observed under the hood of a car and that the trial court therefore erred in admitting evidence discovered as a result of an unlawful arrest. Held: The information available to the arresting officer at the time of defendant's arrest did not support an objectively reasonable belief that defendant was committing attempted theft. The officer merely received a police dispatch call describing a citizen report of a theft in progress from under the hood of a vehicle, and what he observed at the scene did not corroborate the criminality of defendant's conduct. Reversed and remanded.

Rachel Philips's Legal Cases (8)

State v Mohamed

State v Soprych

State v Pitcher

State v Bock, 310 Or. App. 329 (2021)

State v. Lambert

State v Moresco

State v. Parker

State v. Koroteev