State v. Williams

349 P.3d 616, 270 Or. App. 721, 2015 Ore. App. LEXIS 525
Court of Appeals of Oregon·Decided May 6, 2015·No. 130130151; A154948·Published·Cited by 8 cases

Opinion

GARRETT, J.

After a stipulated facts trial, defendant was convicted of one count of felon in possession of a firearm, ORS 166.270(1), and one count of unlawful possession of cocaine, ORS 475.884. The issue on appeal is whether the trial court erred in denying defendant’s motion to suppress evidence. Defendant argues that the warrant that police obtained to search his vehicle was not supported by probable cause, because police lacked a sufficient basis to believe that the vehicle would contain any evidence of a crime. For the reasons that follow, we agree with defendant and reverse.

On appeal, we consider only those facts that can be drawn from within the four corners of the affidavit in support of the search warrant. State v. Sagner, 12 Or App 459, 469, 506 P2d 510 (1973) (holding that “matters which were in the officers’ knowledge but were not put before the magistrate” can play no role in our probable cause determination). In this case, Detective Goodwin of the Portland Police Bureau prepared the search warrant application. According to Goodwin’s affidavit, on the afternoon of April 21, 2011, she and other officers responded to a shooting at the intersection of N. Williams Avenue and N. Fremont Street. Goodwin saw bullet casings and spent bullets on the sidewalk and in the street. She also saw a bullet hole in the windshield of a TriMet bus parked northbound on N. Williams. Three 9mm shell casings were recovered at the scene. South of the 9mm casings, police also found .40 caliber shell casings. Those casings were “found in close proximity to the sidewalk with a group of blood spots.”

Goodwin interviewed an eyewitness who reported that he had seen a “cream colored older Toyota style vehicle” drive north on N. Williams. A passenger in that vehicle leaned out of the back seat and fired a gun toward the south, in the direction of a group of black males standing on the sidewalk. The eyewitness saw one person in the group step into the street and return fire at the vehicle. The eyewitness described that shooter as a “dark complected black male, approximately 5'7" to 5'9", approximately twenty one years of age, with a ‘round face’ and light facial hair, and he was firing a ‘good sized’ dark colored, semi-automatic handgun.”

[723] A TriMet bus driver told Goodwin that he had been driving north on N. Williams. When he approached the Fremont intersection, he heard gunfire and a bullet hit the windshield of the bus. The driver brought the bus to a stop and saw a group of black males standing on the sidewalk north of the intersection.

Goodwin’s affidavit described several interviews that Portland police officers conducted later in the day with two men, defendant and Riley, at Emanuel Hospital. Riley had checked himself into the hospital with a gunshot injury to his wrist. Riley told Detective Grandwahl that unidentified persons in a passing car had shot at him while he was standing with his cousin and his brother on the sidewalk on N. Williams.1 Riley said that no member of his group had had a gun, and that defendant had driven Riley to the hospital. Officer Hubert told Goodwin that he knew Riley to be a member of the “Unthank Park Hustlers Gang.” The affidavit, however, does not identify defendant as a member of the group on the sidewalk, or even as being present at the time of the shooting.

Officer Polas spoke with defendant at the hospital. According to Goodwin’s affidavit, defendant told Polas that defendant had driven Riley to the hospital in defendant’s car. Defendant described his car, a Buick, and told Polas where it was parked in the hospital garage. Officer Pelster located the car and, through the window, saw blood on the passenger door armrest.

Grandwahl asked defendant for consent to search the vehicle, and defendant refused; Grandwahl then told defendant that police would apply for a warrant. According to Grandwahl, defendant “suddenly became nervous, had difficulty speaking clearly, and visibly was shaking as he pulled his cell phone.” Defendant then asked Grandwahl whether he was free to leave.

Goodwin checked police records and learned that defendant was the registered owner of the Buick; she also learned that defendant’s date of birth was November 5, [724]*7241973, and that he was listed at 5T0" and 155 pounds. He had prior felony drug arrests in 2006 and 2002. Riley was listed as 5'9", 200 pounds, with a birth date of February 26, 1982.

In the remainder of her affidavit, Goodwin described her training and experience. Specifically, she averred:

“I know through training and experience that people involved in the unlawful use of firearms often use vehicles to conceal and/or transport their firearms and firearms components * * *. Very often, the vehicles used are not registered to the persons who actually own or control them.
“I know that many times possessors of firearms will hide firearms in or outside the interior of the car to prevent law enforcement from finding them.
«* * * * *
“ [P] ersons involved in shooting offenses who flee in vehicles in haste often times leave items of evidence to include, clothing, firearms, firearm accessories, cell phones, items of identification, documents, electronic devices that can be used to identify the possessors of firearms, and trace evidence inside the vehicles.”

Goodwin’s affidavit concluded that she believed there was probable cause to search defendant’s Buick for evidence related to the crimes of unlawful use of a weapon, second-degree assault, first-degree criminal mischief, and felon in possession of a firearm.

The search warrant was issued and executed. Police found a .22 caliber handgun in the Buick. Defendant admitted that the .22 belonged to him, and said he used the gun for target practice. Defendant was indicted, but not arrested until late 2012. At the time of his arrest, he had cocaine in his possession. Defendant was charged with one count of felon in possession of a firearm and one count of unlawful possession of cocaine. Before trial, defendant moved to suppress the evidence resulting from the execution of the search warrant, arguing that the warrant was not supported by probable cause. The trial court called this a “close case” but denied the motion. Following a stipulated facts trial, [725] defendant was convicted of both the felon-in-possession count and the drug count. On appeal, defendant challenges the denial of his motion to suppress and reprises his arguments to the trial court.

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State v. Williams, 349 P.3d 616, 270 Or. App. 721, 2015 Ore. App. LEXIS 525 (Or. Ct. App. 2015).

349 P.3d 616 (State v. Williams) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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