State v. Webber

383 P.3d 951, 281 Or. App. 342, 2016 Ore. App. LEXIS 1147
CourtCourt of Appeals of Oregon
DecidedSeptember 28, 2016
DocketCR1101820; A154625
StatusPublished
Cited by19 cases

This text of 383 P.3d 951 (State v. Webber) 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. Webber, 383 P.3d 951, 281 Or. App. 342, 2016 Ore. App. LEXIS 1147 (Or. Ct. App. 2016).

Opinion

DEHOOG, J.

Defendant appeals a judgment of conviction for unlawful delivery of cocaine, ORS 475.880. He assigns error to the trial court’s denial of his motion to suppress evidence found during a warrant search of his home. Defendant argues that the affidavit submitted in support of the search warrant failed to establish probable cause for that search, because it did not show a sufficient connection between defendant’s suspected criminal conduct and defendant’s home. The state argues that the collective circumstances set forth in the affidavit — including defendant’s involvement in ongoing drug sales, the lack of evidence of those sales on his person or in his vehicle, and the investigating officer’s training and experience — established probable cause to believe that evidence of drug activity would be located in defendant’s home. We conclude that the affidavit did not support a finding of probable cause to search defendant’s home, and, accordingly, we reverse and remand.

Because defendant argues that the challenged search warrant was not supported by probable cause, we take the relevant facts from the supporting affidavit submitted by Deputy Ritter of the Clackamas County Sheriffs Office. In part, Ritter’s affidavit explained that, in August 2011, a confidential informant (C.I.) had given him the name of a drug dealer, Benavente, who had sold the C.I. drugs in the past. At Ritter’s request, the C.I. agreed to participate in controlled buys from Benavente. During the ensuing controlled buys, the investigating officers became aware of defendant’s involvement in Benavente’s drug activity. The officers observed Benavente meeting with defendant both before and after the first controlled buy, which took place less than three weeks before Ritter requested the warrant to search defendant’s home. That contact included a hand-to-hand exchange through the window of defendant’s vehicle at the conclusion of the buy. Following that transaction, the C.I. gave the officers “a plastic baggie containing a white powder substance” — later identified by Ritter as cocaine— which the C.I. had purchased from Benavente.1

[344]*344Defendant was present at another controlled buy the day before Ritter’s warrant request. That day, officers observed a man, Dahl, pick Benavente up from his home in a Subaru wagon and drive him to a gas station. At the gas station, the officers saw defendant begin to follow the Subaru in his own vehicle, a Dodge Durango. Defendant followed the Subaru to a grocery store parking lot, where defendant parked “in the farthest south part of the parking lot” while the Subaru “parked west.” According to Ritter, defendant watched the Subaru “intently” and, at some point, moved his own vehicle to gain a better view of the Subaru.

Two officers detained Benavente and Dahl shortly after their arrival. Upon searching the Subaru, the officers found “three baggies” of cocaine weighing 29.7, 15.3, and 9.4 grams.2 According to Dahl, defendant had given them the cocaine at the gas station. Benavente later appeared to confirm that defendant was the source of the cocaine, when he told the officers that they “saw [defendant] give [him] the shit.” During the same interview, Benavente described defendant as “small time” and not his regular supplier.

While those officers detained Dahl and Benavente, several other officers contacted defendant at his vehicle. Defendant denied any knowledge of a drug sale and claimed to have been shopping.3 The officers asked to search defendant’s Durango, and defendant consented. During that search, a drug detection dog alerted to the passenger-side floorboard of the Durango, but the officers did not find any evidence of criminal activity in that vehicle. Defendant offered the explanation that Benavente, who was known to him as a drug dealer, had recently been seated in the passenger seat.

The officers also interviewed Benavente’s girlfriend as part of their investigation. She confirmed that Benavente sometimes obtained drugs from defendant, but she did [345]*345not know what amounts were involved or how often that happened.4

Ritter conducted a records check and discovered that defendant had been the subject of an investigation into unlawful delivery of cocaine and ecstasy in 2003. Ritter also read several text messages that Benavente had exchanged with defendant. One referred to “a whole pizza,” which Ritter understood to be code for an ounce of cocaine, while other messages discussed lunch or dinner meetings, which Ritter believed were veiled references to drug transactions.

Based on the foregoing investigation, Ritter concluded that defendant was involved in drug sales. In addition to stating that conclusion, Ritter’s affidavit contained a lengthy, generic description of circumstances that, in his training and experience, are commonly associated with drug trafficking.5 For example, Ritter explained that “sellers of controlled substances normally possess scales, packaging, paraphernalia, money and/or controlled substances.” He further explained that traffickers “commonly process and package the drug for sale” and have equipment to do so, which they conceal “in various locations, including [their] residence [s], outbuildings, storage lockers, buried containers, vehicles, carry bags and purses, and on [their] person [s]”; that they “frequently consume illegal drugs and will keep a supply of these substances at their premises, in their vehicles, and on or about their person[s]”; and that they “commonly keep and maintain records pertaining to their illegal activities.” Ritter noted that the officers had not found any of those items in defendant’s vehicle during their search.

Ritter’s investigation, together with his training and experience, led him to conclude that there was probable cause to believe that defendant possessed evidence of drug activity at his home, and, accordingly, Ritter requested [346]*346a warrant to search that location. A magistrate issued the requested warrant, and the ensuing search led to the discovery of evidence of drug distribution.

Based partly on that evidence, the state charged defendant with unlawful delivery of cocaine, ORS 475.880, and unlawful possession of cocaine, ORS 475.884. Defendant moved to suppress the evidence obtained as a result of the search of his home, arguing that there had not been probable cause for the search. Defendant contended that, even if Ritter’s affidavit established probable cause to believe he was engaged in illegal drug activity, the affidavit did not establish any connection — or “nexus” — between his suspected drug activity and his home. The state responded that defendant himself provided a connection between his criminal activity and his home. That connection, the state argued, together with Ritter’s training and experience and the absence of drug evidence in defendant’s vehicle (which, the state suggested, increased the likelihood that drug evidence would be in defendant’s home), provided a sufficient nexus.

The trial court concluded that the affidavit supported the issuing magistrate’s probable cause determination and denied defendant’s motion.

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Cite This Page — Counsel Stack

Bluebook (online)
383 P.3d 951, 281 Or. App. 342, 2016 Ore. App. LEXIS 1147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-webber-orctapp-2016.