State v. Wheelon

903 P.2d 399, 137 Or. App. 63, 1995 Ore. App. LEXIS 1397
CourtCourt of Appeals of Oregon
DecidedSeptember 27, 1995
DocketCR 92-465(A) & (B); CA A81165
StatusPublished
Cited by15 cases

This text of 903 P.2d 399 (State v. Wheelon) 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. Wheelon, 903 P.2d 399, 137 Or. App. 63, 1995 Ore. App. LEXIS 1397 (Or. Ct. App. 1995).

Opinions

[65]*65LANDAU, J.

The state appeals an order suppressing evidence obtained pursuant to a search warrant. Defendants “cross-appeal,”1 challenging the sufficiency of the affidavit in support of the warrant, as well as the constitutionality of the manner in which the warrant was executed. We reverse on appeal and affirm on cross-appeal.

The principal issue in this case is the sufficiency of the affidavit of an Oregon State Police Officer, who, after describing his experience and training in narcotics investigations, recited the following information that he had received from two citizen informants:

“Citizen Informant 1, hereafter referred to as Cl 1, contacted me and advised that in the past Cl 1 has assisted in the growing of marijuana and knows what growing marijuana looks like in the different stages of growth. Cl 1 also advised me that Cl 1 knows what growing marijuana smells like and the pungent odor it emits. Cl 1 also stated that Cl 1 knows what marijuana looks like and smells like in the dried form. Cl 1 also advised that Cl 1 has smoked dried marijuana in the past and knows its effects and what it smells like in its burning form.
“Cl 1 told me that within the last five (5) days, Cl 1 entered the property occupied by [defendants] at [defendants’ address]. Cl 1 described the property as being approximately one quarter of a mile north of Yamhill County Road NW Olson. The buildings on the curtilage consist of a main wooden frame two-story dwelling, a green approximately 30' x 50' pole barn, and another smaller building. Cl 1 advised that while outside the green pole building, Cl 1 could hear a humming noise. Cl 1 said the humming was louder upon entering the green pole building via a sliding door. Cl 1 said Cl 1 observed on the floor of the pole building bags of potting soil and fertilizer. Cl 1 said that Cl 1 observed a ladder located to the right of the sliding door extending up to a trap door in the loft area of the green pole building. Cl 1 said that upon climbing the ladder and entering the loft through [the] [66]*66trap door Cl 1 smelled a strong odor of marijuana. Cl 1 said Cl 1 observed in the loft area a plywood walled-off area, about 10' x 15', with a single door entrance, and observed at least 25 marijuana plants which were approximately 5' tall. Cl 1 said Cl 1 saw electrical wiring running on the floor of the loft area and some foil reflecting material on the floor. Cl 1 also said Cl 1 saw a large running box-type fan in the walled-off area.
“Citizen Informant 2, hereafter referred to as Cl 2, contacted me and advised that in the past Cl 2 has seen growing marijuana in the past. Cl 2 also advised me that Cl 2 knows what growing, drying, and dried marijuana looks and smells like. Cl 2 also advised that Cl 2 has smoked dried marijuana in the past and knows its effects and what it smells like in its burning form.
“Cl 2 told me that within the last three (3) days, Cl 2 entered the property occupied by [defendants] at [defendants’ address]. Cl 2 described the property as being approximately one-eighth of a mile north of Yamhill County Road NW Olson. Cl 2 told me that the buildings on the curtilage consist of a main wooden frame two-story dwelling, a large green metal horse barn, two goat sheds, and a chicken coup. Cl 2 advised me that while outside the green building, Cl 2 heard what sounded like the hum of a large hornet’s nest. Cl 2 told me that, on investigating the source of the sound, Cl 2 entered the horse barn through a sliding door. Cl 2 said that Cl 2 could not identify the source of the noise on the ground floor, but it appeared to be louder and coming from above. Cl 2 said that Cl 2 observed a trap door in the ceiling above Cl 2’s head. Cl 2 said that Cl 2 gained entry through the trap door entering a loft area, where Cl 2 noted that the humming was louder and appeared to be coming from behind a plywood wall in the loft area. Cl 2 said Cl 2 noted a strong odor of marijuana in the loft area. Cl 2 said that Cl 2 looked into the area behind the plywood wall and observed at least 20 four to five foot tall marijuana plants hanging upside down from the ceiling of the horse barn. Cl 2 said that Cl 2 also noted that the marijuana plants were budded out with 2 to 3" buds, and that the humming noise was a large fan in operation in the walled-off room.”

The affiant also stated in the affidavit that he had gone to the entrance to defendants’ property. He described the location of the driveway that the two informants told him extended for approximately 1/8 to 1/4 mile to defendants’ [67]*67house. The affiant also described the mail box and a newspaper box located at the roadside near defendants’ driveway. He confirmed from the county tax assessor’s office the size of defendants’ property and that it contains three taxable buildings : a dwelling, a pole barn and an old house used for storage. The affiant determined from the county assessor’s office, Portland General Electric and the Department of Motor Vehicles that defendants reside on the property described by the informants.

Based on the affidavit, a magistrate issued a warrant to search defendants’ property and buildings. State police officers searched the premises and, with the assistance of several members of the Oregon National Guard (Guard), hauled away more than 100 marijuana plants and related paraphernalia. Defendants were charged with multiple counts of manufacture, delivery and possession of a controlled substance, ORS 475.992, and with two counts of child neglect. ORS 163.547.

Defendants moved to controvert, arguing that, among other things, the affidavit gives the false impression that the two citizen informants viewed defendants’ premises at different times, when they actually viewed the premises at the same time. Defendants also moved to suppress all evidence obtained from the search. According to defendants, (1) the affidavit is insufficient to establish probable cause; (2) the observations of the citizen informants were unconstitutional, because they were acting as agents of the state and trespassed on defendants’ property to view defendants’ premises; and (3) the search was unconstitutional, because it involved the use of members of the state militia.

The trial court questioned the officer and the informants in camera, and then made the following findings:

“7. The Court has taken testimony in camera of [affiant officer], and of the two unnamed informants. * * *
“8. The informants in this case did not enter the property at the behest or encouragement of the case agent, [affiant officer] and were, therefore, not acting as agents of law enforcement.
“9. * * * [T]he informants in the affidavit did observe the key incriminating matters related in the affidavit, but not separately, independently or apart from each other. The [68]*68informants saw the key incriminating evidence described by the affiant in the affidavit at the same times and while they were together on the property.
“10.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Newsted
381 P.3d 1025 (Coos County Circuit Court, Oregon, 2016)
State v. Tropeano
241 P.3d 1184 (Court of Appeals of Oregon, 2010)
State v. Forker
168 P.3d 279 (Court of Appeals of Oregon, 2007)
State v. Clayton
150 P.3d 1078 (Court of Appeals of Oregon, 2007)
Dew v. City of Scappoose
145 P.3d 198 (Court of Appeals of Oregon, 2006)
State v. Harper
105 P.3d 883 (Court of Appeals of Oregon, 2005)
State v. Trax
39 P.3d 887 (Court of Appeals of Oregon, 2002)
State v. Pelster/Boyer
21 P.3d 106 (Court of Appeals of Oregon, 2001)
State v. Aman
991 P.2d 1096 (Court of Appeals of Oregon, 1999)
State v. Poulson
945 P.2d 1084 (Court of Appeals of Oregon, 1997)
State v. Chatfield
939 P.2d 55 (Court of Appeals of Oregon, 1997)
Wallace v. State
933 P.2d 1157 (Court of Appeals of Alaska, 1997)
State v. Wheelon
903 P.2d 399 (Court of Appeals of Oregon, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
903 P.2d 399, 137 Or. App. 63, 1995 Ore. App. LEXIS 1397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wheelon-orctapp-1995.