State v. Elstad

I join in the opinion of the court, which I believe is compelled by State v. Wolfe, 61 Or App 409, 657 P2d 227 (1983) and State v. Mendacino, 288 Or 231, 603 P2d 1376 (1979). I write separately to add two observations.

1. I regret the introduction of the metaphor of an escaping feline (“the cat is out of the bag”) into our legal lexicon. I recognize that it is a piece of literary cleverness from relatively ancient judicial roots (United States v. Bayer, 331 US 532, 540, 67 S Ct 1394, 91 L Ed 1654 (1947)), but mere age does not make it worthy. The fact is that we have used the metaphor as a…