Argued and Submitted March 10, 2015
130130151. Multnomah County Circuit Court. Stephen K. Bushong, Judge.
Erica Herb, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
James M. Aaron, Assisant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeff J. Payne, Assisant Attorney General.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[270 Or.App. 722] GARRETT, J.
After a stipulated facts trial, defendant was convicted of one count of felon in possession of a firearm, ORS 166.270(1), and one count of unlawful possession of cocaine, ORS 475.884. The issue on appeal is whether the trial court erred in denying defendant's motion to suppress evidence. Defendant argues that the warrant that police obtained to search his vehicle was not supported by probable cause, because police lacked a sufficient basis to believe that the vehicle would contain any evidence of a crime. For the reasons that follow, we agree with defendant and reverse.
On appeal, we consider only those facts that can be drawn from within the four corners of the affidavit in support of the search warrant. State v. Sagner, 12 Or.App. 459, 469, 506 P.2d 510 (1973) (holding that " matters which were in the officers' knowledge but were not put before the magistrate" can play no role in our probable cause determination). In this case, Detective Goodwin of the Portland Police Bureau prepared the search warrant application. According to Goodwin's affidavit, on the afternoon of April 21, 2011, she and other officers responded to a shooting at the intersection of N. Williams Avenue and N. Fremont Street. Goodwin saw bullet casings and spent bullets on the sidewalk and in the street. She also saw a bullet hole in the windshield of a TriMet bus parked northbound on N. Williams. Three 9mm shell casings were recovered at the scene. South of the 9mm casings, police also found .40 caliber shell casings. Those casings
were " found in close proximity to the sidewalk with a group of blood spots."
Goodwin interviewed an eyewitness who reported that he had seen a " cream colored older Toyota style vehicle" drive north on N. Williams. A passenger in that vehicle leaned out of the back seat and fired a gun toward the south, in the direction of a group of black males standing on the sidewalk. The eyewitness saw one person in the group step into the street and return fire at the vehicle. The eyewitness described that shooter as a " dark complected black male, approximately 5'7" to 5'9" , approximately twenty one years of age, with a 'round face' and light facial hair, and he was firing a 'good sized' dark colored, semi-automatic handgun."
[270 Or.App. 723] A TriMet bus driver told Goodwin that he had been driving north on N. Williams. When he approached the Fremont intersection, he heard gunfire and a bullet hit the windshield of the bus. The driver brought the bus to a stop and saw a group of black males standing on the sidewalk north of the intersection.
Goodwin's affidavit described several interviews that Portland police officers conducted later in the day with two men, defendant and Riley, at Emanuel Hospital. Riley had checked himself into the hospital with a gunshot injury to his wrist. Riley told Detective Grandwahl that unidentified persons in a passing car had shot at him while he was standing with his cousin and his brother on the sidewalk on N. Williams. Riley said that no member of his group had had a gun, and that defendant had driven Riley to the hospital. Officer Hubert told Goodwin that he knew Riley to be a member of the " Unthank Park Hustlers ...