Argued and Submitted January 25, 2013
Washington County Circuit Court C092834CR. Donald R. Letourneau, Judge.
David Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Tyler Goecks filed the supplemental brief Pro se.
Janet A. Klapstein, Senior Assistant Attorney General, argued the case for respondent. John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Douglas F. Zier, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[265 Or.App. 159] ARMSTRONG, P. J.
Defendant, who was convicted of unlawful possession, manufacture, and delivery of marijuana, argues that the trial court erred in denying his motion to suppress evidence found in his residence after a search that the police had conducted pursuant to a search warrant. In the trial court, defendant moved to controvert the affidavit made in support of the warrant and to suppress evidence obtained as a result of the warranted search. ORS 133.693. The trial court granted the motion to controvert but concluded that, as controverted, the affidavit nonetheless established probable cause for issuance of the warrant. The court therefore denied defendant's suppression motion. Defendant appeals, and, as explained below, we agree with defendant that, in light of the controverted information in the affidavit, there was not probable cause to issue a warrant to search defendant's residence. Accordingly, we reverse and remand.
The facts of this case are unusual, and thus, at the outset, we clarify the legal framework for controversion of affidavits in support of warrants. In a nutshell, this case concerns a situation in which the affiant, an officer for the Tigard Police Department, set forth in his affidavit information provided to him by a named informant that ultimately proved to be, for the most part, fabricated by the named informant in cooperation with one of the officer's confidential informants. As the parties correctly recognize, however, a motion to controvert allows a defendant to challenge the " good faith, accuracy and truthfulness of the affiant," ORS 133.693(2), but " not that of the informant." State v. Coffey,
309 Or. 342, 349, 788 P.2d 424 (1990) (emphases in original). Thus, the focus here is on what the officer put in the affidavit, and not on the fact that much of the information in the affidavit ultimately proved to be false. To reiterate--the issue, as set forth in more detail below, concerns the " accuracy" of the affiant in relating in his affidavit his knowledge of the relevant circumstances, not the " accuracy" of the information provided to him by the informant.
[265 Or.App. 160] With respect to our standard of review,
" [t]he sufficiency of the search warrant affidavit presents a legal question for each reviewing court, beginning with the trial court. That is, as in the trial court, the question before the Court of Appeals [is] whether the issuing magistrate could have concluded that the affidavit (excluding the excised parts) established probable cause to search defendants' home. As to that question, the Court of Appeals [is] 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.6
" * * * [W]ith respect to the facts that the trial court relied upon to support its decision to excise certain facts from the affidavit, the Court of Appeals, as the reviewing court, is bound by the trial court's findings of fact, if there is evidence in the record to support them. State v. Johnson, 335 Or. 511, 523, 73 P.3d 282 (2003); Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). That, however, does not affect the standard of review that the trial court, or the Court of Appeals, was required to apply in reviewing the remainder of the affidavit for probable cause. Rather, those courts were required to evaluate the sufficiency of the affidavit based on the remaining accurate allegations in the affidavit after excision. See, e.g., State v. Harp, 299 Or. 1, 9, 697 P.2d 548 (1985) (describing process)."
State v. Castilleja, 345 Or. 255, 265-66, 192 P.3d 1283, on recons, 345 Or. 473, 198 P.3d 937 (2008).
In this case, as noted, the trial court did find that the affidavit contained inaccuracies and omissions. Evidence in the record, as described in detail below, supports the trial court's conclusion in that regard. With the above framework in mind, we turn to the pertinent facts. We first recount the information as recited in the affidavit in support of the warrant, then the facts adduced at the hearing in support of the motion to controvert, in a manner consistent with the trial court's explicit and implicit findings.
[265 Or.App. 161] In mid-December 2009, Officer Rollins of the Tigard Police Department applied for and received a warrant to search defendant's residence. In his affidavit in support of the warrant, Rollins recited his training and experience in drug interdiction, as well as the following details concerning his belief that evidence of marijuana crimes would be located in defendant's residence:
" 1. On 11/27/09, I read an email, sent to me by * * * Tigard Police Officer [Hahn]. Officer Hahn told me, through this email, that a package of information, including a USB mass storage device, had been delivered to the Tigard Police Department with the instruction of delivering it to me. Officer Hahn requested that I look through the information at my earliest convenience.
" 2. Through later information, I discovered this package of information was delivered to me based on a prior investigation I had conducted regarding the subject of the information.
" 3. On 11/27/09, I took possession of the materials sent to me at the Tigard Police station. Among the materials was a USB mass storage device that contained numerous pictures of a marijuana grow operation. (See Attachment A) In the pictures, I could observe many mature and immature marijuana plants growing. I was able to determine, through site [sic] alone, that the plants were indeed marijuana, using my experience and the training I have received.
" 4. A letter in the package of materials stated that a female named Sereana, (Sereana Opal Van Meter, [identified by birthdate and other information]) was
providing me with information related to a marijuana grow operation that was being conducted in Tigard, Oregon by a white male named Tyler Charles Goecks [identified by birthdate and other information]. I identified Sereana by her Oregon driver's license, which she presented to me at our first personal meeting. I observed that the picture on the Oregon driver's license matched Sereana's appearance. I performed a criminal history check on Sereana using WEBLEDS, I did not discover any criminal history for Sereana.
" 5. I also discovered that I had spoken with and met several of Sereana's friends and acquaintances in the previous months. Sereana was directed to me through these [265 Or.App. 162] friends and acquaintances, having been informed that I had been involved in prior investigations regarding Tyler.
" 6. Based on prior cases and investigations, Tyler was known to me and I was familiar with his person, identity, residence and vehicles. I am aware that Tyler currently resides at 11045 S.W. 106th Ave, Tigard, OR 97223, Washington County, Oregon. I know that Tyler is approximately 6'5" tall, weighs approximately 225 pounds, and has brown hair and blue eyes.
" 7. The letter, written/typed by Sereana, stated that she befriended Tyler at the request of her friend. Sereana stated that while in the midst of the relationship with Tyler, she personally observed and photographed a marijuana grow operation he was conducting from the garage of his residence. Sereana stated that she smoked Tyler's grown marijuana with him on occasions, as well as consumed alcoholic beverages with him. The letter provided me with a telephone number to contact Sereana at, if I discovered additional information would be needed.
" 8. I attempted to contact Sereana at the provided telephone number on 11/27/09, but received only a voicemail box. I left Sereana a message and asked her to return my call.
" 9. On 11/27/09, at 2048 hours, I received a text message * * *. The text message stated that Sereana would return my call the following day.
" 10. On 11/28/09, at about 1600 hours, I received a call from a female identifying herself as Sereana. During this telephone call, Sereana reiterated the contents of the letter she had written to me earlier. Sereana acknowledged writing the letter and stated she had been the person who had taken the photographs of the growing marijuana plants in Tyler's garage.
" 11. I asked Sereana if she would be willing to talk with me in person about the facts surrounding the marijuana grow operation she had observed. Sereana told me she needed to think about whether or not she wanted to meet with me and provide a statement. Sereana said she ...