Opinion · Court of Appeals of Oregon

State v. Taylor

43 Or. App. 589

Type: Opinion
Court: Court of Appeals of Oregon
Jurisdiction: Oregon
Date: 1979-12-10
Topic: general

ROBERTS, J., dissenting. I do not agree with the majority that the motion for a continuance was properly denied and therefore respectfully dissent. The following occurred at trial: "MR. HUNT: Your Honor, in light of that [granting of state’s motion], the defense would now move for a continuance so we can refile a motion. "THE COURT: That would be denied.” As stated by the majority, the trial court’s ruling on a motion for a continuance will not be disturbed unless there is shown an abuse of discretion and prejudice to the accused.

Citator

UpLaw has not yet analyzed State v. Taylor. The absence of a flag is not a finding that it is good law.

ROBERTS, J.,

dissenting.

I do not agree with the majority that the motion for a continuance was properly denied and therefore respectfully dissent.

The following occurred at trial:

"MR. HUNT: Your Honor, in light of that [granting of state’s motion], the defense would now move for a continuance so we can refile a motion.

"THE COURT: That would be denied.”

As stated by the majority, the trial court’s ruling on a motion for a continuance will not be disturbed unless there is shown an abuse of discretion and prejudice to the accused. Defendant is required by statute to make his Fourth Amendment objection to the admissibility of evidence before trial, ORS 133.673(1). He may not raise the issue during trial, State v. Graber, 21 Or App 765, 771, 537 P2d 117 rev den (1975). Defendant was clearly prejudiced by being denied the opportunity to argue against the admissibility of evidence upon which the state relied to justify his arrest.

*593 Our decision as to whether the trial court abused its discretion should be based upon a balancing of defendant’s rights against the need for expediency in the court system. State v. Pflieger, 15 Or App 383, 515 P2d 1348 (1973), rev den (1974). Since there was no determination of what delay might result from allowing defendant to amend his complaint, we have no information to weigh against defendant’s right to have the state carry its burden of demonstrating the reasonableness of the warrantless search.1 I, therefore, conclude that we have no facts before us which support the denial of defendant’s motion for a continuance.

A warrantless search is per se unreasonable. State v. Miller, 269 Or 328, 334, 524 P2d 1399 (1974); Coolige v. New Hampshire, 403 US 443, 91 S Ct 2022, 29 L Ed 2d 564 (1971).