Argued and submitted on October 31, 2012.
Washington County Circuit Court C101552CR, C101553CR, C101588CR Timothy P. Alexander, Senior Judge.
Rolf C. Moan, Senior Assistant Attorney General, argued the cause for appellant. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.
Robin A. Jones, Senior Deputy Public Defender, argued the cause for respondents. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Before Armstrong, Presiding Judge, and Duncan, Judge, and Brewer, Judge pro tempore.
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 P.3d 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 Orr'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 ten 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. Also, Shields went to the residence and noted that its ...