State v. Castilleja

168 P.3d 1177, 215 Or. App. 235, 2007 Ore. App. LEXIS 1337
CourtCourt of Appeals of Oregon
DecidedSeptember 26, 2007
DocketCR030092, CR030093 A127255 (Control), A127256
StatusPublished
Cited by5 cases

This text of 168 P.3d 1177 (State v. Castilleja) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Castilleja, 168 P.3d 1177, 215 Or. App. 235, 2007 Ore. App. LEXIS 1337 (Or. Ct. App. 2007).

Opinions

[238]*238ROSENBLUM, J.

In these consolidated actions, the state appeals from a pretrial order granting defendants’ motion to suppress evidence of marijuana discovered in their home when the police executed a search warrant there. Defendants moved to suppress the evidence, claiming that some of the information in the police affidavit in support of the warrant application had been obtained unlawfully during a warrantless search of their home. The state contended that, even without the offending information, the affidavit was sufficient to furnish probable cause to believe that, more likely than not, defendants, who held medical marijuana cards, possessed more than the maximum amount of usable marijuana allowed them under the Oregon Medical Marijuana Act (OMMA). The trial court excised the unlawfully obtained information and concluded that, without that information, the affidavit did not furnish probable cause to issue a warrant. It therefore granted defendants’ motion to suppress. The state appeals. It does not challenge the trial court’s decision to excise from the affidavit the information obtained during the initial, warrantless search. It argues only that, even without the excised information, the affidavit was sufficient to issue the search warrant. We review the trial court’s determination that the affidavit did not furnish probable cause for errors of law, but we are bound by the trial court’s factual findings that are supported by evidence in the record. We affirm.

Before we recite the facts of this case, a brief overview of the pertinent provisions of the OMMA is helpful. The 2001 version of the OMMA was in effect at the time of the search at issue in this case. ORS 475.306(1) (2001), amended by Oregon Laws 2005, chapter 822, section 2, provided that a person who possessed a “registry identification card” — commonly referred to as a “medical marijuana card” — could lawfully possess three mature marijuana plants, four immature plants, and one ounce of “usable marijuana” per mature plant. The OMMA defines “usable marijuana” as “the dried leaves and flowers of the plant Cannabis family Moraceae, and any mixture or preparation thereof, that are appropriate for medical use as allowed in ORS 475.300 to 475.346. ’Usable marijuana’ does not include the seeds, stalks and [239]*239roots of the plant.” Former ORS 475.302(10) (2001), renumbered as ORS 475.302(11) (2005).

On October 18, 2002, Trooper Stone of the Oregon State Police obtained a warrant to search the home of defendants Michael and Amber Castilleja, who are husband and wife and who both held medical marijuana cards at the time. The sufficiency of the affidavit supporting the request for the warrant forms the basis of this appeal, so the facts that we recite here are drawn from the affidavit. The first part of the affidavit sets forth in a general fashion Stone’s training and experience. Stone stated that, in his 12 years as a police officer, he had received extensive training in the investigation of controlled substances and had participated in obtaining or executing search warrants for at least 15 marijuana-growing operations. Among other things, he stated that his “observations of marijuana include both the sight and smell of it growing and dried and marijuana in its various stages of processing.” Nothing in his statement of training and experience indicates how much usable marijuana could be obtained as a result of processing a marijuana plant or how long it takes to process a plant into dried, usable marijuana.

Stone stated in the affidavit that he was called to defendants’ home shortly after midnight on October 7, 2002. The police were summoned there after Michael was shot by intruders who were apparently attempting to steal defendants’ marijuana plants. Both defendants had gone to the hospital when Stone arrived at the scene. Officers who were already there told Stone that there were six mature marijuana plants growing in a greenhouse as well as other plants growing behind the house. Stone noted in the affidavit that the number of plants growing was within the number allowed by the OMMA. He attached a copy of the OMMA to the affidavit as an exhibit and stated, “I know that the Oregon Medical Marijuana law allows for a card holder to have three mature marijuana plants and four immature marijuana plants and that a card holder may possess up to one processed ounce of marijuana per mature plant at the growfing] site.” He also stated that he called the Oregon Health Division (OHD) and verified that both defendants had valid medical marijuana cards.

[240]*240The affidavit also states that Stone spoke with Amber’s mother, Loewen, at defendants’ home on the night of the shooting. Loewen told the officers that Amber had called her after Michael was shot and had asked her to take defendants’ children to her home. Stone described what Loewen told him as follows:

“[Loewen] was very upset and told me she knows Amber and Michael have medical marijuana permits but added that she knew they were way over their lawful allowable amounts. [Loewen] then said it was her understanding that Michael Castilleja’s medical marijuana permit was expired or revoked but she did not know for sure. [Loewen] told me she believed there was a lot more than medical marijuana going on at the Castilleja residence. When I asked what she meant, [Loewen] said that Michael Castilleja has not worked in a couple of years and her daughter works for minimum wage, yet they have lots of stuff. [Loewen] told me there were boxes of brand new stereo equipment stacked in Michael and Amber’s closet. [Loewen] told me she knows what has been going on because she had once been a drug dealer and was familiar with controlled substances and the signs that go along with drug dealing, as well as the effects that drug dealing has on children. [Loewen] told me she stopped dealing drugs when her children were very young after her daughter was nearly shot during a search warrant service at her home.
“[Loewen] said she knows that Amber and Michael were not supposed to have more than three ounces of marijuana apiece in addition to the growing marijuana. [Loewen] told me there was two pounds of marijuana in her daughter’s bedroom in the closet as well as marijuana all over the house, indicating there was marijuana on the floor and marijuana drying in the back of the residence. [Loewen] told me the two pounds of marijuana in Amber and Michael’s bedroom closet was in two large plastic bags.”

The affidavit also states that, on October 14, 2002, Stone learned that a man named Morrison had been arrested in McMinnville in defendants’ car with nine ounces of “processed marijuana.” Stone called OHD again and was informed that Morrison was Michael’s designated primary caregiver.1

[241]*241Stone also stated in the affidavit that, on October 17, 2002, he spoke with Detectives Rosario and Ludwig.

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Related

State v. CHAMU-HERNANDEZ
212 P.3d 514 (Court of Appeals of Oregon, 2009)
State v. Castilleja
198 P.3d 937 (Oregon Supreme Court, 2008)
Barrett v. Belleque
176 P.3d 1272 (Oregon Supreme Court, 2008)
State v. Castilleja
168 P.3d 1177 (Court of Appeals of Oregon, 2007)

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Bluebook (online)
168 P.3d 1177, 215 Or. App. 235, 2007 Ore. App. LEXIS 1337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-castilleja-orctapp-2007.