Submitted ecember 28, 2012
Washington County Circuit Court. C100480CR, C100906CR. Gayle Ann Nachtigal, Judge.
Peter Gartlan, Chief Defender, and Mary M. Reese, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Janet A. Klapstein, Senior Assistant Attorney General, filed the brief for respondent.
Before Nakamoto, Presiding Judge, and DeVore, Judge, and Schuman, Senior Judge.
[263 Or.App. 516] DEVORE, J.
Defendant appeals judgments of conviction for first-degree burglary, ORS 164.225, and first-degree theft, ORS 164.057, assigning as error the denial of his motion to suppress evidence of stolen goods. He argues that the judge who issued the search
warrants was not " neutral and detached," as required by the Oregon and federal constitutions, because the judge had been an attorney who had represented defendant in a similar criminal matter. The state contends that the issue is moot, and that, in any event, the warrants are valid. We affirm.
We review the trial court's ruling on defendant's motion to suppress for errors of law, and we are bound by the trial court's factual findings that are supported by sufficient evidence in the record. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). In two earlier cases, defendant had been arraigned on burglary charges. At the time, Eric Butterfield was engaged as a deputy public defender and served as defendant's counsel in those cases between the time of defendant's arraignment in November 2004 and a pretrial conference on January 6, 2005. Butterfield met with defendant three times--in the jail, at a pretrial conference, and at a sentencing hearing. Defendant says that he told his attorney about his drug habit and " how [he] did the burglaries." Defendant remembers that he also mentioned uncharged burglaries. Although Butterfield advised defendant to hold off resolving the cases, defendant did not take the advice. Defendant pleaded guilty. Defendant had no further contact with Butterfield, excepting one brief encounter.
On his first day in office, March 2010, a newly sworn Judge Butterfield was approached by Detective Scott Cater with an affidavit seeking a search warrant for defendant's apartment and storage areas. The affidavit recounted the circumstances of a residential burglary in September 2009, not far from and not unlike one of defendant's 2004 burglaries. A window had been pried open, everything had been [263 Or.App. 517] ransacked, and about $19,000 in belongings had been taken. The belongings had included a couple's wedding gifts, gift cards, a new shower head, a clean-dishes indicator magnet for a dishwasher, and some things with little second-hand value. The detective had found that someone had used the stolen gift cards to purchase window blinds, among other things. The affidavit reported that a witness told the deputy that defendant's apartment had a new shower head, a clean-dishes dishwasher magnet, and new window blinds.
Judge Butterfield recognized defendant's name, but, after five years, did not recall any specifics about defendant, any prior conversations, or the facts of the prior cases. The judge reviewed the Oregon Code of Judicial Conduct and consulted someone he regarded as an expert on judicial ethics. He later attested, " Since I had no biases or prejudices towards any party to the search warrant and I did not have any knowledge about the facts described in the affidavit, I concluded * * * that it was appropriate for me to review the warrant." He concluded that the affidavit gave probable cause to search, and he approved the warrant. When police conducted the search, they found belongings taken from the victims' home. Defendant was present. The officers noticed other things that they believed had been stolen elsewhere. Those things matched serial numbers and descriptions of goods from other burglaries, prompting police to seek additional search warrants. Judge Butterfield authorized those warrants as well.
Defendant was indicted on multiple counts of first-degree burglary and first-degree theft. The charges were filed in two cases and consolidated for trial. Defendant moved to suppress evidence from the searches. After denial of the motion, the state dismissed several counts; defendant waived a jury; and the parties tried the remaining counts based upon stipulated facts. The court found defendant guilty of five counts of first-degree burglary and one count of first-degree theft. Defendant now appeals the court's denial of his motion to supress.
The state contends that we should not consider the merits of defendant's appeal, because the state believes that the stipulated facts render the appeal " moot." It is true that [263 Or.App. 518] this proceeding does not involve ...