U.S. v. $39,663.00 in U.S. Currency, Civil No. 94-1381-FR.

• Citation: 958 F.Supp. 501
• Decision Date: 09 April 1997
• Docket Number: Civil No. 94-1381-FR.
• Parties: UNITED STATES of America, Plaintiff, v. $39,663.00 IN UNITED STATES CURRENCY, et al., in rem, Defendant. Kari Allison Hoelscher, Claimant.
• Court: Oregon Supreme Court

958 F.Supp. 501

UNITED STATES of America, Plaintiff, v. $39,663.00 IN UNITED STATES CURRENCY, et al., in rem, Defendant.

Kari Allison Hoelscher, Claimant.

Civil No. 94-1381-FR.

United States District Court. D. Oregon.

April 9, 1997.

Kristine Olson, United States Attorney, Kenneth C. Bauman, Assistant United States Attorney, Portland, OR, for Plaintiff.

Jenny Cooke, Portland, OR, for Claimant.

FRYE, Judge:

The matter before the court is the claimant's motion for summary judgment (# 38).

The background of this case is set forth in an opinion filed by the Honorable Robert C. Belloni, United States District Judge, on May 22, 1995, in which he denied the motion of the claimant, Kari Allison Hoelscher, to suppress all evidence seized in the search of her vehicle (# 29).

Kari Hoelscher now moves this court for summary judgment on the grounds that the Court of Appeals for the State of Oregon reversed her state criminal conviction based upon a related opinion in State v. Hadley, 146 Or.App. 166, 932 P.2d 1194 (1997), interpreting and applying O.R.S. 810.410(3)(b) to a traffic stop. Hoelscher contends that the reversal of her state court conviction by the Court of Appeals for the State of Oregon entitles her to summary judgment in this federal civil forfeiture action.

The United States contends that federal law applies with regard to the search and seizures that occurred on May 23 1994, and that under federal law the search and seizures were lawful. The United States further contends that discovery has not been completed, and summary judgment is not appropriate on that ground alone.

RULING OF THE COURT

On May 22, 1995, Judge Belloni concluded that "the stop of Hoelscher's van was not pretextual, that Hoelscher was not unlawfully detained after the conclusion of the traffic stop, and that Hoelscher's consent to search was given voluntarily. Accordingly, there is no reason to exclude the evidence seized in the search of Hoelscher's van." Opinion, pp. 10-11. This ruling is the law of this case.

Issues relating to the stop of Hoelscher's van and the investigation and the search that was conducted of that van with the consent of Hoelscher are evaluated in federal court only by the application of federal law. See United States v. Velarde, 25 F.3d 848, 849 (9th Cir.1994); United States v. Chavez-Vernaza, 844 F.2d 1368, 1374 (9th Cir.1987). The application of O.R.S. 810.410(3)(b) by the Court of Appeals for the State of Oregon in the state criminal...