State v. King

312 P.3d 595, 259 Or. App. 55
Procedural entryThis page is a short order in State v. King. Read the opinion of the Court — 261 Or. App. 650
Court of Appeals of Oregon·Decided October 23, 2013·No. C101552CR; A148105; C101553CR; A148106; C101588CR; A148119·Published

Opinion

ARMSTRONG, P. J.

The state appeals a pretrial order in these consolidated criminal cases that suppressed evidence discovered during a search of a residence pursuant to a search warrant. After discovering marijuana growing in the residence, the state charged each of the defendants with unlawful possession, delivery, and manufacture of marijuana. Defendants moved to suppress evidence derived from the search, and the trial court granted defendants’ motions by order. The state appeals that order pursuant to ORS 138.060. For the reasons set forth below, we reverse and remand.

On review of a trial court’s order suppressing evidence from a search conducted pursuant to a search warrant, we must determine whether, based on the facts in the affidavit for the search warrant, “a neutral and detached magistrate could conclude (1) that there is reason to believe that the facts stated are true; and (2) that the facts and circumstances disclosed by the affidavit are sufficient to establish probable cause to justify the search requested.” State v. Castilleja, 345 Or 255, 265,192 P3d 1283 (2008). That standard applies both to the trial court’s and our review of the issuing magistrate’s decision to issue the search warrant. Id. Thus, we do not defer to the trial court’s findings, because we are

“in the same position as was the trial court to evaluate the sufficiency of the facts alleged in the affidavit, the reasonableness of any inferences involved in resolving the legal question presented by the probable cause determination, and, ultimately, the existence of probable cause to support the warrant. No appellate court deference to the trial court’s findings or conclusions [is] appropriate or warranted.”

Id. (footnote omitted).

On July 19, 2010, Officer Shields of the Westside Interagency Narcotics (WIN) team obtained a warrant to search a residence at 3310 SW 173rd Avenue in Beaverton, occupied by defendant Melanie Orr. Shields’s affidavit in support of the warrant recited the following facts. In February 2010, an anonymous caller called the Beaverton police department to report a possible marijuana-growing operation at [58]*58Orr’s residence. Shields contacted Portland General Electric (PGE) and determined that Orr had been the power subscriber at the residence since 2005 and that the power usage at the address had increased dramatically in June 2008 and had remained very high. Shields then contacted the Oregon Medical Marijuana Program (OMMP) and determined that Orr was a registered medical-marijuana user who was authorized to grow marijuana (up to 6 mature plants and 18 seedling plants) at that address.

In May 2010, Shields received calls from two informants who wished to keep their identities confidential. The first of the informants reported that there was sporadic vehicular and foot traffic by people who would visit the residence for fewer than 10 minutes. The informant said that the people would arrive at the residence carrying nothing and leave carrying gym or duffel bags. The informant indicated that that activity followed a cycle in which the short-duration visits would persist for roughly a week, decrease for three to four weeks, and then increase again. The informant also reported smelling an odor of marijuana at the residence.

The second informant reported seeing a young man from the neighborhood visit the residence several times and leave shortly thereafter. The informant also reported repeatedly seeing a pizza-delivery vehicle arrive at the residence and the driver, a young man, go in carrying nothing and later emerge carrying a duffel bag. Finally, the informant expressed the belief that marijuana was being sold from the residence.

In May and June of 2010, Shields received detailed records from PGE on power usage at the residence. Based on power records attached as an exhibit to his affidavit, Shields provided calculations indicating that the increased power consumption was consistent with the use of seven metal halide lights of the type used in indoor marijuana-growing operations, which would support the growth of somewhere between 28 and 140 mature marijuana plants.1 Also, Shields went to the residence and noted that its only ground-level [59]*59window was covered from the inside, which was consistent with a marijuana-growing operation being conducted inside.

On July 6, 2010, Shields and WIN officers established surveillance of the residence. Shields watched a young man come to the house, stay for approximately 10 minutes, then leave with his left hand in the pocket of his shorts. Several minutes later, another officer saw what he believed to be a hand-to-hand transaction near the residence between a person in a dark blue Chevrolet TrailBlazer and a person in a gold Honda Civic. The officer lost sight of both vehicles approximately one block from the residence, but Shields saw the gold Honda arrive at the residence about two minutes later. The TrailBlazer then drove by the residence and parked roughly a block away. A man got out of the Honda, went into the residence, and came out five minutes later. The man returned to the Honda and drove to the parked TrailBlazer. Shields and another officer watched what appeared to be a hand-to-hand transaction between the driver of the TrailBlazer and a person in the Honda.

Shields followed the TrailBlazer, saw its driver commit traffic infractions, and had another officer stop the vehicle for the infractions. During the traffic stop, the driver, Slover, admitted possessing approximately one half ounce of marijuana. She said that she had just purchased it from a man in a small tan Honda at a location that was consistent with the officers’ observation of the hand-to-hand transaction that had occurred several minutes earlier. Shields further averred:

“Based on my training and experience and the observation of the [other officers], the initial contact between the Trailblazer and Honda Civic was an exchange of money from Slover to the passenger in the Honda Civic. The Honda Civic proceeded to 3310 SW 173rd Avenue and the driver of the Honda Civic entered 3310 SW 173rd Avenue and purchased illegal narcotics from inside the residence. The driver of the Honda Civic exited 3310 SW 173rd Avenue and drove from that location and located the Trailblazer a block away from 3310 SW 173rd Avenue where there was a hand to hand exchange between the front passenger of the Honda Civic and Slover. Based on my training and experience, this would be consistent with an exchange of illegal narcotics from the occupants of the Honda Civic to Slover.”

[60]*60Shields also recited details of his training and experience in investigating drug-related crimes, described the types of evidence expected to be located at sites where drugs are manufactured or delivered, and opined that (1) frequent visits of a short duration at a location can be indicative of drug distribution, (2) indoor marijuana-growing operations typically are conducted on a year-round basis, and (3) people who grow more marijuana than is allowed under the OMMP often distribute their excess marijuana for consideration. As noted, a search warrant issued for a search of the residence at 3310 SW 173rd Avenue, and defendants moved to suppress the evidence discovered during the search of the residence.

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State v. King, 312 P.3d 595, 259 Or. App. 55 (Or. Ct. App. 2013).

312 P.3d 595 (State v. King) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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