State v. Webber
State v. Webber
Opinion of the Court
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.
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.
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.
The officers also interviewed Benavente’s girlfriend as part of their investigation. She confirmed that Benavente sometimes obtained drugs from defendant, but she did
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.
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
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. In the court’s view, it was reasonable to infer from defendant’s involvement in more than one drug sale that a supply of drugs and related evidence would be found at his home. Defendant proceeded to trial, where a jury convicted him of both charges.
On appeal, the parties largely renew the arguments that they made to the trial court. Defendant, relying on State v. Goodman, 328 Or 318, 975 P2d 458 (1999), and several of our subsequent decisions, contends that the affidavit failed to establish probable cause to believe that evidence of drug activity would be found in his home. According to defendant, the affidavit could not establish probable cause to search his home without connecting Ritter’s criminal investigation to that particular location through specific facts and, in defendant’s view, the mere fact that he lived in the home was not enough.
We begin our discussion with the applicable standard of review and related burden of proof. Search warrants are presumptively valid; thus, in challenging a search warrant, it is a defendant’s burden to establish that the warrant was defective. Id. at 341. The assertion that an affidavit in support of a search warrant fails to establish probable cause presents a question of law, and we review the issuance of a warrant for legal error. State v. Castilleja, 345 Or 255, 264, 192 P3d 1283, adh'd to on recons, 345 Or 473, 198 P3d 937 (2008). Specifically, we consider whether a neutral and detached magistrate could reasonably have concluded that the supporting affidavit established probable cause. Id. We rely on the facts set forth in the affidavit,
Thus, the issue on appeal is whether a neutral and detached magistrate could reasonably have concluded that
The Supreme Court’s decision in Goodman provides the framework for that dispute. In Goodman, a detective saw the defendant surreptitiously access a hidden marijuana garden, and sought a warrant to search the defendant’s home located eight-and-a-half miles away. 328 Or at 320-21. In an affidavit in support of that request, the detective explained that, based on his training and experience, he knew that marijuana growers commonly dry and prepare marijuana for sale in enclosed structures; that they generally grow the mature plants from seedlings that they raise indoors; and that marijuana cultivation requires various tools and materials that were not found at the grow site itself. Id. at 321-22. In addressing whether the affidavit established probable cause to search the defendant’s home, the Supreme Court articulated its test for determining whether an affidavit establishes a sufficient nexus between suspected drug activity and a location that an officer seeks to search for evidence of that activity. Id. at 325. Under that test, the affidavit must establish probable cause to believe both (1) that there is a connection between the owner or occupant of the home (or other location) and the suspected drug activity; and (2) that evidence of that drug activity will be found in the location that the officer seeks to search. Id.
Applying that test, the Goodman court readily concluded that the affidavit provided probable cause to believe
Applying Goodman and its progeny, we conclude that Ritter’s affidavit failed to establish probable cause to believe that evidence of illegal drug activity would be found in defendant’s home. As in Goodman, we readily conclude that there was probable cause to believe that defendant was connected with the drug activity described in the affidavit, a conclusion he does not dispute on appeal. But, moving to the second part of Goodman’s analysis, we conclude — as defendant urges — that the absence of objective facts connecting that illegal activity to defendant’s home foreclosed the conclusion that the affidavit provided a sufficient nexus to that location. Accordingly, as we explain below, the trial court erred in denying defendant’s motion to suppress.
“It is * * * well settled * * * that an assertion of training and experience is not enough by itself to create probable cause. In order for an attestation regarding training and experience to support probable cause, it must connect a defendant’s particular conduct or circumstances with the specific evidence that police seek, and it must be supported by objective facts derived from other sources.”
(Quoting Goodman, 328 Or at 328 (internal quotation marks and citations omitted).)
The state, in turn, finds language equally supportive of its position in our decision in Chamu-Hernandez, where we concluded:
“[R]eliance on [an officer’s training and experience] is a permissible way to establish a nexus between a suspected crime and a particular location to be searched.”
229 Or App at 344 (citing Goodman, 328 Or at 328).
To some, that seemingly straightforward statement from Chamu-Hernandez may suggest that, if there is probable cause to suspect that a person has committed a crime, an officer need only cite his or her training and experience to establish probable cause to believe that evidence of the crime will be found at the person’s home. However, upon closer examination, the applicable case law, including Chamu-Hernandez, provides for a more nuanced, case-by-case assessment, with “the weight to be given to such representations depend [ing] on the totality of the facts contained in the affidavit,” Wilson, 178 Or App at 171.
Notably, even though the Goodman court said that “facts derived from training and experience may contribute th[e] necessary factual nexus in a determination of probable cause,” the court did not suggest that, in all instances, an officer’s mechanical invocation of “training and experience” is sufficient to obtain a warrant to search a given location. Id. at 327; see also Daniels, 234 Or App at 541 (“The phrase ‘training and experience’ *** is not a magical incantation with the power to imbue speculation, stereotype, or pseudoscience with an impenetrable armor of veracity.”). As the court cautioned in Goodman:
“We do not here suggest that an officer’s expertise, unconnected to objective facts derived from other sources, will satisfy constitutional requirements. *** Here, the officer’s expertise *** provide [d] a criminal law nexus to a series of other, separately verified facts which — absent the officer’s explanation — could be understood to be innocent. Expertise is a permissible way to establish such a nexus, and this case is an illustration of circumstances in which expertise may be used in that way.”
Thus, in Goodman, the affidavit was rich enough in “objective facts derived from other sources” that the
Following Goodman, we have consistently evaluated an affiant’s training and experience in light of its ability to “shore up” an affidavit’s objective content. See Wilson, 178 Or App at 171 (concluding that the objective facts in that case were “too weak to be shored up” by the affiant’s expertise). In Wilson, for example, under circumstances similar to this case, drug enforcement officers had arranged for an informant to make a controlled drug buy from the defendant. Id. at 165. In an affidavit requesting a warrant to search the defendant’s home, a deputy described a controlled buy involving the defendant and also described the defendant’s house, but did not tie the two together. Id. at 165-66. Instead, the affidavit stated that, in the deputy’s training and experience, individuals who traffic drugs “usually have hidden on their property, person, or in their vehicles evidence of their drug dealing.” Id. at 166 (internal quotation marks omitted). On the state’s appeal from an order granting the defendant’s motion to suppress, we agreed with the defendant that the warrant was not supported by probable cause, because the affidavit failed to establish a nexus between the place to be searched and the items to be found. Id. at 165, 170.
In that case, we adopted the trial court’s reasoning that the affidavit did not “connect th[e] reputed drugs to
Similarly, in State v. Miller, 254 Or App 514, 295 P3d 158 (2013), we considered the facts set forth in a search warrant affidavit in their totality before concluding that the affidavit did not establish probable cause to search that defendant’s home. There, a detective sought a warrant to search that location for evidence of methamphetamine possession, manufacturing, and delivery. Id. at 517. In relevant part, the detective’s supporting affidavit stated that the defendant had three drug-related convictions on his record; officers had witnessed the defendant selling a small amount of methamphetamine out of his car to an informant three times at undisclosed locations; officers had watched the defendant come from, and go to, his residence before and after one of those transactions; and the detective knew, based on his training and experience, that drug traffickers often kept “controlled substances, scales, packaging material, cutting agents and currency from drug sales,” as well as other evidence of drug-related activity. Id. at 517-19. We held that, because the drug activity did not occur at the defendant’s residence and “[n]one of [the officer’s] generic
In this case, as in Wilson and Miller, we conclude that the objective facts set forth in Ritter’s affidavit — as well as the connection between those facts and Ritter’s training and experience — were simply too weak for the affidavit, in its totality, to establish probable cause to search defendant’s home. First, Ritter’s affidavit did not disclose any direct connection between the observed drug crimes and that residence. For example, Ritter’s affidavit did not indicate that defendant was coming from or going to his home at the time of either controlled buy, nor did it provide anything else to make it likely that defendant used his residence as a base of operations. Cf. Chamu-Hernandez, 229 Or App at 342-43 (although affidavit did not specify where suspect’s drug deliveries took place, pattern of returning to Washington County residence in course of making those deliveries supported the inference that suspect possessed drugs at that residence). In fact, the only objective facts specific to defendant’s home in Ritter’s affidavit were its address and the fact that defendant lived there.
Second, this is not a case in which the objective content of the affidavit made it probable that other evidence of defendant’s suspected drug activities would exist, whether in his house or any other place. Again considering Goodman, it was significant in that case that the fertilizer and tools required for marijuana cultivation were not present at the
Here, in contrast, the inference that additional evidence of defendant’s drug-related conduct was likely to exist was almost wholly dependent upon Ritter’s generic understanding that “sellers of controlled substances normally possess” a number of different items, none of which were in defendant’s immediate possession when the police encountered him. But, unlike cultivating marijuana for sale, which requires more than just the mature plants observed in Goodman, or the production of methamphetamine, which necessarily involves a production site, it is far less evident that the delivery of cocaine requires anything other than the controlled substance itself. Thus, we attach relatively little significance to the objective fact that defendant, a suspected drug dealer, did not have evidence of that activity on his person or in his vehicle. While, consistent with our approach in Wilson, we afford “some weight” to Ritter’s expertise regarding the usual practices of drug traffickers, we conclude that it is not sufficiently tied to the objective facts in this case to support a nonspeculative inference that defendant would possess drug-related evidence at his home.
Third, and relatedly, Ritter’s affidavit did not suggest that defendant was engaged in the sort of ongoing, high-volume drug operation that has, in previous cases, supported the inference that additional evidence of drug activity will be found in other, specific, locations. For example, in Villagran, the Supreme Court reasoned that the “scale
Although, in this case, Ritter’s affidavit linked defendant to two cocaine sales rather than one, it did not describe anything resembling the “ongoing drug sales” in Chamu-Hernandez, or operations at the “scale and sophistication” of the marijuana grow at issue in Villagran. Ritter’s information was that defendant was not a regular supplier for Benavente and that he was, at most, “small time.” Moreover, while the affidavit listed the weights of the baggies of cocaine seized after the second controlled buy involving defendant, Ritter did not explain what, if any, significance those weights carried, such as whether they implied substantial drug operations or low-level sales. Rather than support Ritter’s conclusion that more evidence would likely be found at defendant’s home, those objective facts only supported the conclusion that defendant was a “drug dealer.” Accordingly, we cannot agree with the trial court’s conclusion that it was reasonable to infer from defendant’s involvement in more than one drug sale that a supply of drugs and related evidence would likely be found anywhere, much less at his home.
In additional authorities, the state suggests that our recent decision in State v. Heyne / Yunke, 270 Or App
We concluded that the affidavit’s contents sufficiently connected the marijuana found in the defendant’s car to his home. Id. at 605. In reaching that conclusion, we reasoned that, based on the quantity of marijuana found in the defendant’s car, together with the officer’s informed understanding that 11 ounces was a “dealer quantity,” the affidavit established probable cause to believe that the defendant illegally sold drugs. Id. And, because the defendant’s home was where “he had been authorized * * * to grow and keep marijuana,” we concluded that there was probable cause to believe that he was now engaged in illegal drug activity at that location. Id. at 605-06.
It is true, as the state points out, that we made the broad statement in Heyne that “the affidavit linked [the defendant] to the marijuana in the car and linked [the defendant] to his home, which, in light of the statement in the [officer’s] affidavit that people who sell controlled substances conceal them in vehicles and buildings that they control, provided a basis to believe that evidence of marijuana
In sum, while the objective content of Ritter’s affidavit established probable cause to believe that defendant was engaged in illegal drug activity, it contained little, if any, objective information suggesting that evidence of that activity would be found in defendant’s home. While we are cognizant of the preference for warrants and our concomitant duty to resolve doubtful or marginal cases in favor of that preference, see Chamu-Hernandez, 229 Or App at 341-42, this is not such a case. In this case, the objective facts set forth in the affidavit did not themselves render it likely that additional drug-related evidence would exist somewhere, that it would be found in a particular type of location, and that defendant’s home would be such a place. And, while we have previously said that a magistrate may rely on an officer’s training and experience to establish the required nexus between suspected criminal activity and a particular place to be searched, that expertise is not a complete substitute for objective facts derived from other sources. Thus, we have consistently required an affiant’s training and experience to be sufficiently connected to the objective facts so as not to serve as the sole basis on which to find probable cause to search a given location. Here, that connection was almost completely lacking.
Ritter’s affidavit described the objective facts regarding defendant’s involvement in drug activity; separately, it described Ritter’s training and experience regarding drug traffickers in general. Ritter did not purport to rely on his training and experience to explain the significance of his objective observations. In fact, Ritter’s affidavit did not meaningfully tie his expertise to the objective facts in
Reversed and remanded.
The affidavit did not state how much cocaine was in the baggie.
Although the affidavit stated how much the seized baggies of cocaine weighed, it did not explain the significance, if any, of those weights. Notably, the affidavit did not indicate whether the officers considered those amounts to be dealer quantities or merely quantities associated with individual use.
Defendant later said that he had been following Benavente and Dahl in and out of various parking lots because he had intended to meet them for lunch.
We note that, like Benavente’s description of defendant as “small time,” there was nothing in this individual’s statement that would necessarily have informed Ritter or the magistrate that Benavente had obtained drugs from defendant on any occasion other than the two that Ritter recounted.
According to his affidavit, Ritter had been a law enforcement officer for more than 13 years; had attended numerous trainings, including many specific to drug transactions; and had participated in more than 20 investigations involving the possession and delivery of cocaine.
The trial court merged the possession count into the delivery count at sentencing.
In this case, because defendant does not, on appeal, challenge the truth of the facts in the affidavit, we accept those facts as true in determining whether they were sufficient to establish probable cause. See Goodman, 328 Or at 325 (when defendant does not move to controvert statements in affidavit, appellate “inquiry is limited to whether the uncontroverted facts in the affidavit estab-lishfed] probable cause to search”).
We are cognizant that our role on appeal is limited to determining whether, based on the facts set forth in the affidavit and the inferences those facts support, a magistrate could reasonably have concluded that the affidavit established probable cause. Castillejo,, 345 Or at 263-64. That inquiry presents a legal
Goodman provided the following examples of an officer’s training and experience contributing the requisite nexus: an officer’s knowledge that a particular type of packing is frequently used in the sale of cocaine; an officer’s knowledge that paperfolds of a particular shape are typically used as containers for drugs; and an officer’s testimony that white powder visible in a transparent vial is almost always a controlled substance. See 328 Or at 328 (citing State v. Coffey, 309 Or 342, 347, 788 P2d 424 (1990); State v. Herbert, 302 Or 237, 242, 729 P2d 547 (1986); and State v. Westlund, 302 Or 225, 231, 729 P2d 541 (1986)).
See State v. Evans, 119 Or App 44, 46-47, 849 P2d 539 (1993) (“The officer’s recitations of his professional experience provided the only link between the residence and the [drug operation]. * * * Standing alone, the officer’s intuition or professed knowledge of the common practices of [traffickers] is not an additional fact supporting probable cause that this particular residence contained any particular evidence.” (Emphasis in original.)).
Reference
- Full Case Name
- STATE OF OREGON, Plaintiff-Respondent v. TRAVIS JASON WEBBER
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- 19 cases
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- Published