# State v. T. L. B.

> Court of Appeals of Oregon · September 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10591417

## Case

- **Court:** Court of Appeals of Oregon
- **Decided:** September 25, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10591417

## How later opinions describe it (automated extraction)

- noting that a “probation revocation proceeding invokes the crim- inal sanctions pending against the defendant” to justify extending the exclusionary rule to juvenile probation revo- cation
- explaining that “a civil com- mitment proceeding can in no sense be equated to a criminal proceeding” because commitment “is not exercised in a puni- tive sense”
- recognizing that the Oregon Supreme Court has extended the exclusionary rule beyond criminal proceedings only to the “analogous setting” of juvenile probation revocations
- concluding that the federal exclusionary rule does not apply to juvenile dependency proceedings after “[w]eighing the substantial social cost of ignoring children’s safety against the minimal additional deterrence”

## Opinion text

No. 678 September 25, 2024 225

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

In the Matter of T. L. B.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
T. L. B.,
Appellant.
Douglas County Circuit Court
19CC06783; A176794

George William Ambrosini, Judge.
Submitted November 16, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jordan R. Silk, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Lagesen, Chief
Judge, and Kamins, Judge.
KAMINS, J.
Affirmed.
226 State v. T. L. B.
Cite as 335 Or App 225 (2024) 227

KAMINS, J.
Appellant challenges a judgment committing him
to the jurisdiction of the Psychiatric Security Review Board
(PSRB) for up to 24 months after finding that he is an
“extremely dangerous person” under ORS 426.701. Appellant
raises three assignments of error. First, he argues that the
trial court should have dismissed the commitment petition,
because ORS 426.701 and ORS 426.702 operate as a crimi-
nal prosecution and he was not afforded adequate state and
federal constitutional protections. Second, appellant argues
that the trial court erred by declining to rule on his motions
to suppress and controvert. Third, appellant argues that the
trial court erred by finding that he is an extremely danger-
ous person. We affirm.
For purposes of this appeal, the underlying facts
are largely not in dispute. Appellant experiences paranoid
ideations due to his delusional disorder. According to expert
testimony adduced at petitioner’s civil commitment hearing,
the “hallmark symptom” of that mental disorder is “a very
firmly held fixed idea that remains even in overwhelming
evidence to the contrary.” As a result of his delusions, appel-
lant believed that a local restaurant, and anyone who may
have frequented it, including appellant’s landlord and the
landlord’s housemate, were part of a broad conspiracy involv-
ing a prostitution and drug ring. And because of those delu-
sions, he killed his landlord and the landlord’s housemate.
After an evaluation, appellant was found unfit
for trial due to his mental disorder because he lacked the
capacity to understand the nature of the charges against
him. He believed that Oregon State Hospital personnel
and members of the trial court, including his legal team,
the trial judge, and the prosecutor, were all preventing him
from exposing the supposed criminal activity at that restau-
rant. Appellant’s mental disorder was resistant to medica-
tion, and despite multiple attempts, medical providers were
unable to restore his competency to stand trial.
The state then initiated a petition for civil commit-
ment pursuant to ORS 426.701—an “extremely dangerous
person” proceeding—which authorizes a court to commit
228 State v. T. L. B.

an individual to the jurisdiction of the PSRB.1 During the
14-day civil commitment hearing, appellant filed motions to
suppress and controvert, arguing that the extremely dan-
gerous person proceeding functioned as a criminal prose-
cution. Reasoning that the exclusionary rule does not apply
in a civil proceeding, the trial court did not “move forward”
with the motions.
Ultimately, the trial court determined that appel-
lant was extremely dangerous, because his mental disorder
was resistant to treatment, and his mental disorder caused
him “to present a serious danger of safety of other persons
by reason of an extreme risk that he will inflict grave or
potentially lethal physical injury on other persons in the
foreseeable future.” Thus, appellant was committed to the
jurisdiction of the PSRB.
In appellant’s first assignment, he contends that the
trial court erred in denying his motion to dismiss the civil
commitment petition because ORS 426.701 to ORS 426.702,
the statutes governing the extremely dangerous person pro-
ceeding, are unconstitutional. Appellant argues that, unlike
a civil commitment proceeding governed by ORS 426.005
to ORS 426.315, the extremely dangerous person proceed-
ing functions as a criminal prosecution without the neces-
sary federal and state constitutional protections.2 Whether
1
ORS 426.701(1)(a) provides that a person is “extremely dangerous” if an
individual:
“(A) Is at least 18 years of age;
“(B) Is exhibiting symptoms or behaviors of a qualifying mental disorder
substantially similar to those that preceded the act described in subsection
(3)(a)(C) of this section; and
“(C) Because of a qualifying mental disorder:
“(i) Presents a serious danger to the safety of other persons by reason of
an extreme risk that the person will inflict grave or potentially lethal physi-
cal injury on other persons; and
“(ii) Unless committed, will continue to represent an extreme risk to the
safety of other persons in the foreseeable future.”
2
Appellant also argues that the periodic recommitment procedure violates
due process; however, that argument is unpreserved. As appellant does not ask
for plain error review, we do not consider that argument on appeal. See State
v. McIntire, 328 Or App 328, 335, 537 P3d 608 (2023), rev den, 372 Or 26 (2024)
(explaining that ordinarily we “will not proceed to the question of plain error
unless an appellant has explicitly asked us to do so”) (internal quotation marks
omitted).
Cite as 335 Or App 225 (2024) 229

a statute is constitutional presents a question of law, State v.
Howard, 325 Or App 696, 701, 529 P3d 247, rev den, 371 Or
333 (2023), and for the reasons discussed below, we conclude
that ORS 426.701 to ORS 426.702 does not function as a
criminal proceeding.
Because appellant’s argument is based on a com-
parison of the civil commitment proceedings governed by
ORS 426.006 to ORS 426.415—which appellant appears to
acknowledge are constitutional—to the extremely dangerous
person proceedings, we briefly discuss both. Civil commit-
ment proceedings, governed by ORS 426.005 to ORS 426.415,
are designed to provide care for mentally ill persons as well
as to provide for the safety of the community. OAR 309-033-
0220. Under that civil commitment scheme, two persons, the
local health officer or a “magistrate or judge of a court of
a federally recognized Indian tribe located” in Oregon, may
initiate a civil commitment. ORS 426.070 (1)(a) to (c). A com-
mitment under that proceeding is for “an indefinite period
of time up to 180 days,” if the individual has not made the
requisite progress to be released. ORS 426.301(3)(c).
In contrast, ORS 426.701 and ORS 426.702, which
govern the extremely dangerous person proceeding, were
adopted to ensure that individuals who pose a risk of vio-
lence because of a mental illness that is resistant to treat-
ment would not be released to the community until the
symptoms of that mental illness had been ameliorated. See
OAR 859-200-0005 (explaining purpose of extremely dan-
gerous civil commitment program); Audio Recording Senate
Committee on Judiciary, SB 421, Apr 18, 2013, at 147:53
(statement of Sen Floyd Prozanski), https://olis.oregonlegis-
lature.gov/liz/2013R1/Measures/Overview/SB421 (accessed
Sept 11, 2024) (explaining purpose of statutes). Under those
statutes, a district attorney petitions the court to initiate an
“extremely dangerous person proceeding.” ORS 426.701(2)(a).
That proceeding is predicated on the fact that the individual
suffers from a qualifying mental disorder that is resistant to
treatment, and because of that mental disorder, the individ-
ual committed one of six criminal acts enumerated in ORS
426.701(3)(a)(C)(i) to (vi), which include, as relevant here,
causing the death of another person. See ORS 426.701(1)(a)(c)
230 State v. T. L. B.

to ORS 426.701(2)(a) (describing the extremely dangerous
person proceedings).
An initial commitment of an extremely dangerous
person is for a maximum of 24 months; if the individual
has not made the requisite progress to be released, then the
commitment is continued for an additional 24 months. ORS
426.702(3)(a). The PSRB must hold a hearing within six
months of that initial commitment to make placement deci-
sions and determine whether the person is eligible for condi-
tional release or discharge. ORS 426.701(6)(a). And, “[a]t any
time during the commitment to a state hospital, the super-
intendent of the state hospital may request to determine the
status of the person’s commitment under the jurisdiction of
the board.” ORS 426.701(7)(a). If “the board determines * * *
that the person no longer suffers from a qualifying men-
tal disorder that is resistant to treatment or is no longer
extremely dangerous, the board shall discharge the person.”
ORS 426.701(6)(d).
With those two civil commitment schemes in mind,
we address whether, as appellant asserts, ORS 426.701 to
ORS 426.702 operate as an unconstitutional criminal pro-
ceeding. Generally, commitment proceedings based on men-
tal incapacity are permissible “without turning * * * into
criminal cases, so long as the detention is for a non-punitive
purpose and ends with that purpose.” Brown v. Multnomah
County Dist. Ct., 280 Or 95, 103, 570 P2d 52 (1977). “It is
the punitive use of detention, not the detention as such, that
defines the criminal offense.” Id. Appellant contends that,
unlike a civil commitment proceeding under ORS 426.005
to ORS 426.415, an extremely dangerous person proceed-
ing serves a punitive purpose because the commitment peri-
ods are longer, require that a dangerous person present an
“extreme risk,” and are initiated by the district attorney.
ORS 426.701(1) - (2)(a). We disagree and conclude, for the
reasons discussed below, that the extremely dangerous per-
son proceeding does not function as a criminal proceeding.
The question turns on whether the extremely dan-
gerous person procedure set forth in ORS 426.701 authorizes
detainment for a “punitive purpose,” or rather, “employs
compulsory confinement in looking after persons suffering
Cite as 335 Or App 225 (2024) 231

from mental incapacity.” Brown, 280 Or at 103. As discussed
above, the purpose of the extremely dangerous person pro-
ceeding is to provide mental health treatment and the con-
finement ends when that purpose—to ensure that an indi-
vidual’s mental health symptoms have been ameliorated
such that they do not pose a danger to themselves or the
general public—ends. Although the extremely dangerous
person proceeding employs longer commitment periods than
the civil commitment proceeding governed by ORS 426.005
to ORS 426.415, appellant has identified no source for the
conclusion that the length of commitment is for a punitive
purpose; rather, it appears that those presumptively longer
periods enable an individual with a mental illness that is
resistant to treatment to receive the necessary medical care.
Audio Recording, Senate Committee on Judiciary, SB 421,
Apr 18, 2013, at 1:47:53 (comments of Sen Floyd Prozanski),
https://olis.oregonlegislature.gov/liz/2013R1/Measures/
Overview/SB421, (accessed Sept 11, 2024) (noting that
extremely dangerous person proceeding is the “appropriate
way * * * [to] ensure that people will have the best oppor-
tunity to receive the treatment they might need, and also
not be a danger to themselves or others”). That non-puni-
tive rationale mirrors the ORS 426.005 to ORS 426.415 civil
commitment procedure. And ORS 426.701 requires that an
individual be discharged when the commitment criteria no
longer exist, confirming the nonpunitive purpose. See ORS
426.701(6)(c) (explaining that a commitment will end when
the individual “can be controlled in the community with
proper care, medication, supervision, and treatment”); see
also ORS 426.701(6)(d) (explaining that if “the board deter-
mines * * * that the person no longer suffers from a qualify-
ing mental disorder that is resistant to treatment or is no
longer extremely dangerous, the board shall discharge the
person”).
Although appellant acknowledges that the civil com-
mitment proceedings under ORS 426.005 to ORS 426.415 are
“predicated on the person’s dangerousness,” he argues that
the “extreme risk” requirement of ORS 426.701(1)(a)(C)(i) and
(ii) “suggests an incapacitating purpose” that is unmoored
from “the prospect of treatment.” However, the extreme risk
requirement requires that an individual pose an extreme
232 State v. T. L. B.

risk of serious danger to the physical safety of others because
of their treatment-resistant mental disorder. ORS 426.701
(1)(C)(i), (ii). And as explained above, an individual must be
released from commitment when the symptoms of the mental
disorder are alleviated, expressly tethering successful treat-
ment to release. Similarly, appellant argues that the fact that
a district attorney initiates the proceeding indicates a puni-
tive purpose. However, district attorneys represent the state
in civil commitment proceedings under ORS 426.100 to ORS
426.415 and initiate or prosecute many civil matters that do
not implicate criminal sanctions. See e.g., ORS 35.560(1) (not-
ing that a district attorney “shall [c]ommence and prosecute”
condemnation actions in their judicial district). Like ORS
426.005 to ORS 416.415’s civil commitment proceedings, we
conclude that the extremely dangerous person proceeding is
not punitive in nature, and, therefore, is not a criminal pro-
ceeding that requires the full panoply of constitutional pro-
tections afforded to a criminal defendant. For the same rea-
son, we conclude that ORS 426.701 does not violate the United
States Constitution. Addington v. Texas, 441 US 418, 428, 99
S Ct 1804, 60 L Ed 2d 323 (1979) (explaining that “a civil com-
mitment proceeding can in no sense be equated to a criminal
proceeding” because commitment “is not exercised in a puni-
tive sense”).
In his second assignment of error, appellant con-
tends that the trial court erred by declining to hear his
motions to suppress and controvert. The state responds that
that argument is unpreserved, because, beyond asserting
that the proceedings are criminal in nature, appellant made
no argument below that the exclusionary rules apply to civil
commitment proceedings. However, appellant’s argument
on appeal is exactly that—that the exclusionary rule is
applicable because the proceeding is analogous to a crim-
inal proceeding—an argument the trial court addressed
and rejected.3 Citing the same cases and raising the same

3
The trial court explained:
“[T]his is not a situation where the Court would be holding a Motion to
Suppress in this civil commitment hearing. This is not a criminal prosecu-
tion. * * * [T]he alleged mentally ill person is [not] facing incarceration and
that type of sanction. It’s commitment, among other things that’s sought, it
includes treatment at the State Hospital.”
Cite as 335 Or App 225 (2024) 233

arguments, appellant renews the argument on appeal. The
state’s preservation argument is not well-taken.
Whether the remedy of suppression of Article 1, sec-
tion 9’s, protection against unreasonable search and seizure
applies in a civil commitment proceeding is a question of
law.4 T. M. M. v. Lake Oswego School Dist., 198 Or App 572,
579, 108 P3d 1211 (2005).
The remedy of suppression of evidence obtained
from an unlawful search or seizure is available in criminal
proceedings. ORS 133.673. Like other safeguards afforded
to criminal defendants, the remedy of the suppression of evi-
dence seized in violation of Article I, section 9, may extend
to situations analogous to a criminal proceeding such that
a “petitioner’s liberty interest is sufficiently analogous to
the liberty interest at stake in traditional criminal prose-
cutions.” State ex rel Juv. Dept. v. Rogers, 314 Or 114, 120,
836 P2d 127 (1992) (extending exclusionary rule to juvenile
probation revocation proceedings). As explained above, the
hallmark distinction of a criminal proceeding justifying
application of those procedural safeguards is whether the
proceeding is punitive in nature. See, e.g., id. (citing State
v. Donovan, 305 Or 332, 335, 751 P2d 1109 (1988) (noting
that a “probation revocation proceeding invokes the crim-
inal sanctions pending against the defendant” to justify
extending the exclusionary rule to juvenile probation revo-
cation); see also State ex rel Dept. of Human Services v. W. L.
P., 345 Or 657, 665, 202 P3d 167 (2009) (recognizing that the
Oregon Supreme Court has extended the exclusionary rule
beyond criminal proceedings only to the “analogous setting”
of juvenile probation revocations). And, as we concluded
above, the extremely dangerous person proceeding is not
sufficiently analogous to a criminal prosecution to import
the safeguards afforded to criminal defendants, including
the right to suppress evidence.

4
Article I, section 9, of the Oregon Constitution provides:
“No law shall violate the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable search, or seizure; and no
warrant shall issue but upon probable cause, supported by oath, or affirma-
tion, and particularly describing the place to be searched, and the person or
thing to be seized.”
234 State v. T. L. B.

Next, appellant argues that the federal exclusion-
ary rule, “a judicially created remedy designed to safeguard
Fourth Amendment rights,” should apply to the extremely
dangerous person proceeding. United States v. Calandra, 414
US 338, 348, 94 S Ct 613, 38 L Ed 2d 561 (1974). Appellant
contends that that rule applies, because “the benefits of
exclusion outweigh the costs,” an argument to which the
state does not respond.
When determining the applicability of the federal
exclusionary rule beyond criminal proceedings, courts
must “weigh the likely social benefits of excluding unlaw-
fully seized evidence”—specifically, the deterrent effect on
unlawful police conduct—”against the likely costs.” W. L. P.,
345 Or at 667 (internal quotation marks omitted). And the
Oregon Supreme Court has not extended the rule beyond
criminal and quasi-criminal proceedings. Id. at 668; see
also State Forester v. Umpqua River Nav., 258 Or 10, 14,
15-16, 478 P2d 631 (1970) (declining to extend federal exclu-
sionary rule to civil case brought by government because
it only applies in criminal and quasi-criminal cases where
the “object, like a criminal proceeding, is to penalize for the
commission of an offense against the law” (internal quota-
tion marks omitted)).
The federal exclusionary rule does not extend to
Oregon’s extremely dangerous person proceedings. As the
Oregon Supreme Court has already determined, extending
the federal exclusionary rule to law enforcement seizures in
non-criminal proceedings offers little additional deterrent.
W. L. P., 345 Or at 668 (“[T]he search here was conducted by
local law enforcement officials investigating potential crimi-
nal activity. If it was improperly seized, the evidence will be
excluded in any criminal proceedings” and thus extending
the exclusionary rule “would provide little, if any, additional
deterrence.”). That minimal deterrence is outweighed by
the benefit of preserving the safety and well-being of the
individual and the general public. See id. at 669 (concluding
that the federal exclusionary rule does not apply to juvenile
dependency proceedings after “[w]eighing the substantial
social cost of ignoring children’s safety against the minimal
additional deterrence”). In sum, we conclude that neither the
Cite as 335 Or App 225 (2024) 235

state nor federal exclusionary rules apply to the extremely
dangerous person proceeding.
In his final assignment of error, appellant con-
tends that the trial court erred in concluding that he is an
extremely dangerous person. Appellant concedes that the
evidence showed that he “presented a heightened risk of
future violence because of his mental disorder.” However, he
argues that ORS 426.701 does not define “extreme risk” and
that the state’s witness, a psychologist who specializes in
risk assessment, “acknowledged that risk instrumentation is
not a particularly robust science.” Thus, according to appel-
lant, the evidence does not show that his risk of violence was
“extreme”; he only had a “heightened risk of future violence”
and “nothing beyond that.” The state responds that the
evidence demonstrates that “future harm is highly likely,”
which is an “extreme risk.” We agree with the state that the
evidence in this case meets the statutory requirement.
In determining whether the record was sufficient
to find by clear and convincing evidence that appellant
qualified as an extremely dangerous person, we “view the
evidence, as supplemented and buttressed by permissible
derivative inferences, in the light most favorable to the trial
court’s disposition and assess whether, when so viewed, the
record was legally sufficient to permit that outcome.” State
v. T. W. W., 289 Or App 724, 726, 410 P3d 1032 (2018) (inter-
nal quotation marks omitted). To the extent that appellant’s
argument presents a question of statutory interpretation,
we review such inquiries for legal error. State v. Bernhardt,
277 Or App 868, 872, 376 P3d 316, rev den, 277 Or 868 (2016).
ORS 426.701(1)(a)(C) provides, in part, that a per-
son is extremely dangerous if the person:
“(i) Presents a serious danger to the safety of other
persons by reason of an extreme risk that the person will
inflict grave or potentially lethal physical injury on other
persons; and
“(ii) Unless committed, will continue to represent an
extreme risk to the safety of other persons in the foreseeable
future.”
(Emphases added.)
236 State v. T. L. B.

“Extreme risk” is not defined in ORS chapter 426.
In those instances, “we generally assume that the legisla-
ture intended to use the term in a manner consistent with
its plain, natural, and ordinary meaning, and we often
consult dictionaries for guidance in determining what the
legislature would have understood a term to mean.” Kinzua
Resources v. DEQ, 366 Or 674, 681, 468 P3d 410 (2020)
(internal quotation marks omitted). We also “consider the
context of the statutory provision at issue, which includes
other provisions of the same statute or other related stat-
utes.” Bert Brundige, LLC v. Dept. of Rev., 368 Or 1, 4, 485
P3d 269 (2021) (internal quotation marks omitted).
“Extreme” generally means “existing in a very
high degree.” Webster’s Third New Int’l Dictionary 807
(unabridged ed 2002). Applying that definition—a definition
with which appellant does not quibble—requires a court to
determine that, because of an individual’s mental disorder,
they present a very high degree of risk of inflicting “grave or
potentially lethal physical injury” and continue to represent
a very high degree of risk “to the safety of other persons in
the foreseeable future.” ORS 426.701(1)(a)(C)(i), (ii).
The statutory context supports that construction.
ORS 426.005 to ORS 426.415, the related civil commitment
scheme discussed above, provides that a “person with mental
illness” includes a “person who, because of mental disorder,
is * * * [d]angerous to self or others.” ORS 426.005(1)(f)(A).
To justify committing someone based on the risk of violence,
a trial court must find “that actual future violence is highly
likely.” State v. C. L., 313 Or App 539, 542, 495 P3d 748
(2021); see, e.g., State v. C. J., 322 Or App 760, 764, 522 P3d
540 (2022) (explaining that appellant “locat[ing] and phys-
ically go[ing] to the journalist’s home, armed with a maul
and pepper spray * * * in the context of appellant’s increas-
ing symptoms of depression and PTSD, and her reluctance
to take prescribed” medications was “clear evidence that
appellant was highly like to engage in future violence”).
Thus, within that context, an “extreme risk” deter-
mination does not require the scientific certainty argued by
appellant; rather, it requires a finding that, because of appel-
lant’s mental health disorder, the risk of future physical
Cite as 335 Or App 225 (2024) 237

harm exists in a very high degree. As noted above, appellant
does not dispute that the “evidence showed that appellant
presented a heightened risk of future violence because of his
mental disorder.” Appellant shot and killed two individuals
because of his mental disorder, using the “quietest home-
made” silencer the state’s expert had observed. Additionally,
appellant lacks insight into his illness which remains resis-
tant to treatment. That evidence was sufficient to permit
the determination that the risk of future harm exists in a
very high degree.
In sum, the evidentiary record was legally sufficient
to establish that, because of appellant’s mental disorder, he
continues to present an “extreme risk” that he “will inflict
grave or potentially lethal physical injury to other persons”
and “will continue to represent an extreme risk to the safety
of other persons in the foreseeable future.” ORS 426.701
(1)(a)(C)(i), (ii).
Affirmed.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10591417. Public record. Not legal advice.