State v. Henderson

113 P.3d 944, 200 Or. App. 225, 2005 Ore. App. LEXIS 729
CourtCourt of Appeals of Oregon
DecidedJune 15, 2005
Docket20-02-01536B; A119000
StatusPublished
Cited by6 cases

This text of 113 P.3d 944 (State v. Henderson) 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. Henderson, 113 P.3d 944, 200 Or. App. 225, 2005 Ore. App. LEXIS 729 (Or. Ct. App. 2005).

Opinion

*227 HASELTON, P.J.

Defendant, who was convicted of possession of a controlled substance, ORS 475.992, and two counts of endangering the welfare of a minor, ORS 163.575, appeals, assigning error to the denial of her motion to suppress evidence. She asserts, principally, that (1) the warrant authorizing the search of her home was not supported by probable cause; and (2) in all events, the officers’ violation of ORS 133.575(3), 1 by failing to read the warrant to defendant before beginning their search, requires suppression. We agree with defendant’s first argument. Consequently, we reverse and remand.

The material facts for purpose of our review under the applicable standard, see Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968), are undisputed. On November 7, 2001, Detective Carpenter of the Roseburg Police Department applied to the Lane County Circuit Court for a warrant to search, inter alia, defendant’s residence in Springfield for a “5 diamonds band platinum band” and a “diamond solitaire gold ring,” both of which were, allegedly, “[ejvidence of the crimes of [b]urglary and [t]heft.” 2 In his supporting affidavit, Carpenter recounted that he and other Roseburg officers had been investigating a burglary and theft of two purses from a building in Roseburg. 3 In early November 2001, the officers interviewed several witnesses who identified a woman, McCorquodale, as having been in the area acting suspiciously at the time of the crime. One of the witnesses related that McCorquodale had attempted to sell some jewelry to another woman, Domenico. When the officers spoke with Domenico, she told them that she had bought a gold ring with a solitaire diamond from McCorquodale for $25 but later, after McCorquodale had told her “the ring is stolen,” had *228 returned the ring to McCorquodale. According to Domenico, McCorquodale had been trying to sell other rings, including a platinum ring with five diamonds. 4

Carpenter’s affidavit further recounted that, based on the foregoing information, he had arrested McCorquodale on November 7, 2001. After being advised of her Miranda rights, McCorquodale then related the following information to Carpenter:

“McCorquodale said that she gave two of the rings to [defendant], McCorquodale told me that [defendant] lived in Springfield and she [McCorquodale] paid off a debt of some Methamphetamine that was purchased. McCorquodale said that she gave [defendant] the platinum ring that contained diamonds along with the diamond solitaire ring within the last three weeks.”

There is no indication in Carpenter’s affidavit that McCorquodale told him where the alleged transfer of the rings occurred.

McCorquodale also told Carpenter that she “would assist in the recovery of the property” and drove with Carpenter to Springfield, where she pointed out defendant’s residence. Carpenter then confirmed, through vehicle registration and other records, that defendant and Jerome Shorey resided at that address.

Having recounted those facts, Carpenter, in his affidavit, then described his “background knowledge and experience,” particularly in investigating burglaries and thefts. The following “knowledge and experience” averments by Carpenter are central to our assessment of probable cause, as described below:

“I know from my training and experience in serving search warrants that oftentimes persons will convert stolen property to their own use and keep the property at their residence and in their vehicles.
“I know from my training and experience that sometimes persons will bury stolen property in the soil near *229 their residence in an effort to conceal it. I know from my training and experience that sometimes persons will keep stolen property in a travel trailer or outbuilding, on their property, for storage or concealment purposes.
“That I know from my training and experience that oftentimes persons will keep smaller stolen items on their person.
“Oftentimes persons will keep receipts, records, or paperwork showing the sale, trade, or loan of the stolen property on their person, in their vehicle, and at their residence.
* * * *
“In the search warrants that I have executed or assisted in the service of I have often found stolen property, evidence of burglaries, thefts, criminal mischief and forgeries on previously unidentified visitors or residents and/or in their vehicles. Based on this information it is my belief that if there are any previously unidentified residents or visitors present during the execution of the search warrant it is probable that there will be evidence pertinent to the investigation for which the search warrant is issued on their persons or in their vehicles. I have been at search warrants or told of instances during the execution of a search warrant where upon the awareness of the arrival of police those persons involved with controlled substances, burglaries, thefts[,] criminal mischief and forgeries hide the controlled substances on or about elderly persons or children.”

Based on Carpenter’s affidavit, on November 7, the circuit court issued a warrant authorizing the search of defendant’s residence, outbuildings, travel trailers, vehicles, and curti-lage properties for a diamond solitaire gold ring and a platinum band with five diamonds, as well as the seizure of those items.

Carpenter, at least four other Roseburg officers, and two Springfield officers executed the warrant later that same day. When the officers arrived, defendant was at home, in the living room, with her two small children and her younger brother. Upon entering the residence, Carpenter informed defendant that the police were searching for stolen property. Carpenter remained with defendant and the children in the living room while the other officers “scattered” throughout *230 the house to “secure[ ] the premises.” Not long thereafter, while Carpenter was still with defendant in the living room, defendant overheard one of the officers say that he or she had found some “pipes” — one of which (as described more fully below) was of the sort used for smoking methamphetamine.

According to defendant, at the time she overheard that the police had discovered the pipes, Carpenter had not yet read her the warrant — or, at least, the portion of the warrant identifying the two rings as the items sought — and had not provided her with a copy of the warrant despite her request that he do so.

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Related

State v. Lee
568 P.3d 139 (Oregon Supreme Court, 2025)
State v. Henderson
142 P.3d 58 (Oregon Supreme Court, 2006)
State v. Shorey
124 P.3d 1290 (Court of Appeals of Oregon, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
113 P.3d 944, 200 Or. App. 225, 2005 Ore. App. LEXIS 729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-henderson-orctapp-2005.