Court overturns 17-year sentence for Oregon man

A 17-year prison sentence for an Oregon man arrested while trying to get back into his mother's house because he did not have a key has been overturned by a federal appeals court. The 9th U.S. Circuit Court of Appeals ruled that police must get a warrant or make a reasonable attempt to determine actual trespassing before an arrest.

Rian Struckman was convicted of being a felon in possession of a firearm after police confronted him in his mother's back yard and found an unloaded gun in a backpack.

The appeals court ruled Tuesday that Portland police had no probable cause to arrest or search Struckman because he lived at the house and was not trespassing or committing any other crime. Officers were called to the house in December 2004 by a neighbor who saw a man climb over the fence.

Three officers responded, and two drew their guns before ordering Struckman down on the ground, handcuffing and searching him.

The court, in an opinion by Judge Marsha Berzon, said the officers testified Struckman repeatedly stated he lived at the house and asked police to use his cell phone to call his mother to confirm it.

He admitted he was on probation but claimed the backpack belonged to his sister before officers determined he did live at the house while checking on his criminal history.

The court said there are only two general exceptions to the Fourth Amendment protection against warrantless searches _ exigent circumstances or an emergency _ and neither one applied in this case.

The opinion said that even though the neighbor was suspicious, police found no signs of forced entry or any tools consistent with a possible burglary, and there was no basis for a trespassing charge because Struckman lived there.

As a result, the court said officers had no probable cause to arrest Struckman or conduct the search.

Berzon said police could have asked him a few simple questions to learn the actual explanation that a family member who lived at the house did not have his key. "Indeed, many of us can recount tales about getting locked out of his or her own house," Berzon wrote.

Original report here



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