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Escape from Custody in Oregon: Definition of “Constructive Restraint”


In a kinder, gentler world, the words “you’re under arrest” without any accompanying cuffs or restraints may mean you’re free to head off with impunity at a measured pace to the nearest coffee shop, or tree top, but in Oregon the words “you’re under arrest” means YOU’RE UNDER ARREST AND IN CUSTODY so stop calculating that escape route and forget about that Freedom Road Quickstep maneuver.

From the OJD Court of Appeal July 8, 2009, Media Release (or read the full case):

State of Oregon, Respondent, v. James B. Thomas, Appellant (A135855) decided July 8, 2009:

Landau, P. J.
Defendant appeals a judgment of conviction for, among other things, escape in the third degree. He assigns error to the trial court’s denial of his motion for a judgment of acquittal on that charge, arguing that there was insufficient evidence that he was in “custody” at the time he ran away from the presence of a police officer. Defendant asserts that the police officer’s verbal instruction that he was under arrest, without any physical contact, was insufficient to establish that he was in constructive custody. Held: Because constructive custody does not require physical contact, the fact that the police officer told defendant that he was under arrest is sufficient evidence from which a rational finder of fact could find that defendant escaped from “custody.” Affirmed
” (read Media Release or full case)

Excerpt from the full case:

‘…Defendant was charged with, among other things, escape in the third degree. At trial, after the state adduced evidence of the foregoing events, defendant moved for a judgment of acquittal on that charge on the ground that the state had failed to prove that he had escaped from “custody” within the meaning of the statute defining the offense. According to defendant, although Perry had told him that he was under arrest, the officer “never actually laid a hand” on him, which he contended is a necessary component of placing an individual in actual or constructive restraint. The trial court denied the motion, reasoning that, when Perry told defendant that he was under arrest, defendant was constructively restrained, which is sufficient to establish the required “custody.” ….’

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