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 criminal 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 dangerous 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, appellant 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 involving a prostitution and drug ring. And because of those delusions, 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 restaurant. Appellant’s mental disorder was resistant to medication, and despite multiple attempts, medical providers were 

unable to restore his competency to stand trial.

The state then initiated a petition for civil commitment 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 dangerous person proceeding functioned as a criminal prosecution. 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 appellant 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 426.702, 

the statutes governing the extremely dangerous person proceeding, are unconstitutional. Appellant argues that, unlike 

a civil commitment proceeding governed by ORS 426.005 

to 426.315, the extremely dangerous person proceeding 

functions as a criminal prosecution without the necessary 

federal and state constitutional protections.2 Whether a 

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 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.”

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

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 426.702 does not function as a criminal 

proceeding.

Because appellant’s argument is based on a comparison of the civil commitment proceedings governed by ORS 

426.006 to 426.415—which appellant appears to acknowledge are constitutional—to the extremely dangerous person 

proceedings, we briefly discuss both. Civil commitment proceedings, governed by ORS 426.005 to 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 commitment 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 violence because of a mental illness that is resistant to treatment 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 dangerous civil commitment program); Audio Recording Senate 

Committee on Judiciary, SB 421, Apr 18, 2013, at 147:53 

(statement of Sen Floyd Prozanski), https://olis.oregonlegislature.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 individual 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 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 decisions and determine whether the person is eligible for conditional release or discharge. ORS 426.701(6)(a). And, “[a]t any 

time during the commitment to a state hospital, the superintendent 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 mental 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 

426.702 operate as an unconstitutional criminal proceeding. 

Generally, commitment proceedings based on mental 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 

426.415, an extremely dangerous person proceeding serves 

a punitive purpose because the commitment periods 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 person proceeding does not function as a criminal proceeding.

The question turns on whether the extremely dangerous 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 proceeding is to provide mental health treatment and the confinement ends when that purpose—to ensure that an individual’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 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 opportunity to receive 

the treatment they might need, and also not be a danger to 

themselves or others”). That nonpunitive rationale mirrors 

the ORS 426.005 to 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 determines * * * that the person no longer suffers from a qualifying 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 

commitment proceedings under ORS 426.005 to 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 

risk of serious danger to the physical safety of others because 
232 State v. T. L. B.

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 treatment to release. Similarly, appellant argues that the fact that 

a district attorney initiates the proceeding indicates a punitive purpose. However, district attorneys represent the state in 

civil commitment proceedings under ORS 426.100 to 426.415 

and initiate or prosecute many civil matters that do not implicate criminal sanctions. See e.g., ORS 35.560(1) (noting that 

a district attorney “shall [c]ommence and prosecute” condemnation actions in their judicial district). Like ORS 426.005 

to 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 proceeding that 

requires the full panoply of constitutional protections afforded 

to a criminal defendant. For the same reason, 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 commitment proceeding 

can in no sense be equated to a criminal proceeding” because 

commitment “is not exercised in a punitive sense”).

In his second assignment of error, appellant contends 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 criminal proceeding—an argument the trial court addressed 

and rejected.3 Citing the same cases and raising the same 

arguments, appellant renews the argument on appeal. The 

state’s preservation argument is not well-taken.

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 prosecution. * ** [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

Whether the remedy of suppression of Article I, section 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 evidence 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 prosecutions.” 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 criminal 

sanctions pending against the defendant” to justify extending the exclusionary rule to juvenile probation revocation); 

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.

Next, appellant argues that the federal exclusionary rule, “a judicially created remedy designed to safeguard 

Fourth Amendment rights,” should apply to the extremely 

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 affirmation, and particularly describing the place to be searched, and the person or 

thing to be seized.”
234 State v. T. L. B.

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 unlawfully 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 exclusionary 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 quotation 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 

noncriminal 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 criminal 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 

state nor federal exclusionary rules apply to the extremely 

dangerous person proceeding.
Cite as 335 Or App 225 (2024) 235

In his final assignment of error, appellant contends 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 appellant, 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) (internal 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 person 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.)

“Extreme risk” is not defined in ORS chapter 426. In 

those instances, “we generally assume that the legislature 
236 State v. T. L. B.

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 statutes.” 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 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 physically go[ing] to the journalist’s home, armed with a maul 

and pepper spray * * * in the context of appellant’s increasing 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” determination does not require the scientific certainty argued by 

appellant; rather, it requires a finding that, because of appellant’s mental health disorder, the risk of future physical 

harm exists in a very high degree. As noted above, appellant 

does not dispute that the “evidence showed that appellant 
Cite as 335 Or App 225 (2024) 237

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 homemade” silencer the state’s expert had observed. Additionally, 

appellant lacks insight into his illness which remains resistant 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.