High court reinstates conviction

Published 5:00 am Saturday, June 1, 2013

WASHINGTON — The Oregon Supreme Court reinstated a drug conviction Friday in a case that originated in Deschutes County and had previously been reversed on appeal.

The legal issue was whether police improperly “seized,” or took control of, the defendant, Natasha Lamae Fair, as they were responding to a domestic-disturbance call. In a unanimous decision, the court ruled that the officer had not wrongly detained Fair, and that evidence of drug use he subsequently found was admissible.

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According to court records, Deschutes County Sheriff’s Lt. Erik Utter and Deputy Marcus Mendoza responded to Fair’s house after a garbled 911 call in which the operator heard a woman say “get off me” and “stop it.” The officers ordered Fair and her husband onto the porch and separated them as they took Fair’s husband into custody. Utter told Fair to stay where she was, with the officers positioned between her and her husband, who yelled at Fair not to tell Utter anything.

While talking with Fair, Utter saw swelling over her right eye, which she said happened accidentally while moving furniture. Utter, now a captain and commander of the department’s patrol division, asked Fair for identification. When she said she didn’t have any, he used his handheld radio to ask the dispatcher to check her name and maiden name for outstanding warrants.

When the dispatcher said that she had no warrants or driving record but someone with her maiden name had “some form of contact” with law enforcement, Utter asked her if she had ever been arrested. Fair said she had, for drug possession.

As Utter continued to ask about the fight with her husband, he saw an orange plastic syringe cap fall out of her pants, according to court records. Fair admitted she used intravenous drugs, and gave him permission to search her. Utter found a broken glass pipe containing drug residue, and Fair was arrested.

Fair’s lawyer appealed her conviction, maintaining she had been improperly seized by the officers, and that Utter did not have a valid reason for detaining and questioning Fair.

In January 2010, the Oregon Court of Appeals overturned Fair’s conviction, ruling that, in this case, the officer had gone beyond a innocuous encounter with a member of the public and engaged “in conduct significantly beyond that accepted in ordinary social intercourse.”

“Although it is true that, in this case, defendant was not ordered to come out with her hands up, she nonetheless was ordered — not requested — to come out of her house and was told to remain outside with the officer while an investigation occurred,” the appellate opinion states. “It follows that, because defendant had been unlawfully seized before Utter observed the syringe cap and the additional evidence that followed that observation, the trial court erred in denying defendant’s motion to suppress evidence.”

The state appealed that ruling to the state Supreme Court, maintaining that conversations between officers and potential witnesses or victims of crimes are much less threatening than those with potential suspects.

The Supreme Court heard arguments about the case in January 2011, and the case was resubmitted in January 2013. The justices released their opinion Friday, overruling the Court of Appeals and reinstating Fair’s conviction.

In Friday’s opinion, Justice Virginia Linder agreed with the Court of Appeals’ finding that Utter had seized Fair by ordering her to stay where she was on the porch during questioning. The Supreme Court concluded that his actions were constitutional and appropriate.

“In ordering defendant to stay on the porch, the officers acted reasonably in temporarily detaining her for purposes of questioning her as a witness to and victim of a recent or ongoing assault,” the opinion states. “The officers had an objectively reasonable basis to obtain and verify defendant’s identity and an objectively reasonable belief that defendant could provide information material to the assault.”

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