Argued and Submitted November 6, 2013.
Linn County Circuit Court. 11010116, 11010117. Thomas McHill, Judge.
Jennifer S. Lloyd, Assistant Attorney General, argued the cause for appellant-cross-respondent. On the briefs were John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Douglas F. Zier, Assistant Attorney General.
Jonah Morningstar, Deputy Public Defender, argued the cause and filed the brief for respondent-cross-appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Brian L. Michaels argued the cause and filed the brief for respondent.
Before Armstrong, Presiding Judge, and Hadlock, Judge, and Nakamoto, Judge.
[270 Or.App. 603] ARMSTRONG, P. J.
The state appeals pretrial orders in two consolidated cases that suppressed evidence that the police had obtained in a search of defendants' home under a search warrant. The police discovered marijuana and marijuana-related items in the search, which led the state to charge defendants with a number of crimes. Defendants moved to suppress the evidence from the search. The trial court granted defendants' motions, and the state appeals the resulting orders. See ORS 138.060(1)(c) (authorizes state to appeal pretrial orders suppressing evidence). For the reasons stated below, we reverse and remand.
A magistrate issued a search warrant that authorized the police to search defendants' home for evidence of marijuana-related crimes. The warrant was supported by an affidavit from Sweet Home Police Officer Ogden. Ogden stated in his affidavit that he had received information from Officer McCubbins about a traffic stop involving defendant Yunke. The facts of the traffic stop, as related by McCubbins to Ogden, are as follows.
McCubbins was on patrol when he stopped Yunke for running a red light. McCubbins smelled the odor of marijuana emanating from Yunke's car, and he asked Yunke for his medical-marijuana card because he knew that Yunke had had one. Yunke handed McCubbins an expired medical-marijuana card and explained that the Oregon Department of Human Services had issued him a new card and had told him that he could use his expired card until he received his new one. Later in the stop, Yunke gave McCubbins permission to search his car, which led to the discovery of 11 ounces of marijuana, the bulk of which was stored in three grocery bags. One of those bags contained four Ziplock baggies that each contained approximately one ounce of marijuana. The police also found a pistol and a knife in the car. McCubbins seized the marijuana and asked Yunke to bring a copy of [270 Or.App. 604] his application to renew his medical-marijuana card to the police station later that day so that the police could confirm that he was allowed to possess the marijuana found in his car.
The affidavit went on to explain that the police had initiated a criminal investigation when, two days after the stop, Yunke had not submitted anything to the police to substantiate his claim that he had applied to renew his medical-marijuana card. The police contacted the Oregon Department of Human Services and learned that, although Yunke had had a medical-marijuana card that had allowed
him to possess and grow limited amounts of marijuana, his card had expired and he had not applied to renew it. The police also were told that Yunke's expired card had authorized him to ...