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State v. Klingler

Court of Appeals of Oregon

March 22, 2017

STATE OF OREGON, Plaintiff-Appellant,
STEVEN JAMES KLINGLER, Defendant-Respondent.

          Submitted December 19, 2016

         Douglas County Circuit Court 14CR3019FE; Ann Marie Simmons, Judge.

          Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Jamie K. Contreras, Assistant Attorney General, fled the brief for appellant.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and John Evans, Deputy Public Defender, Offce of Public Defense Services, fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

          SHORR, J.

         The state appeals from a pretrial order granting in part and denying in part defendant's motion to suppress. We have jurisdiction to review the order under ORS 138.060(1)(c). After his home, a recreational vehicle (RV), was searched pursuant to a search warrant, defendant was charged by indictment with one count of delivery of methamphetamine within 1, 000 feet of a school, ORS 475.892, one count of unlawful delivery of methamphetamine, ORS 475.890, one count of unlawful possession of methamphetamine, ORS 475.894, one count of driving while suspended, ORS 811.182, and one count of unlawful possession of between one and four ounces of marijuana, ORS 475.864(3)(b) (2013), amended by Or Laws 2015, ch 1, § 79; Or Laws 2015, ch 614, §123; Or Laws 2016, ch 24, § 46. Defendant moved to suppress the evidence discovered as a result of the search. The trial court granted defendant's motion in part, concluding that the affidavit supporting the warrant did not state facts sufficient for a reasonable and detached magistrate to find probable cause to search defendant's RV. The state appeals, claiming that the trial court's decision was erroneous because, when read in its entirety, the affidavit did establish probable cause to search defendant's RV. We agree with the state and, accordingly, reverse and remand the part of the order suppressing evidence found in defendant's RV and otherwise affirm.

         We take the facts from the uncontroverted portions of the affidavit submitted in support of the warrant. State v. Goodman. 328 Or 318, 325, 975 P.2d 458 (1999). The relevant facts are undisputed. Detective Hansen, a member of the Douglas Interagency Narcotics Team, began investigating defendant for delivery of methamphetamine. In an attempt to discover where defendant resided, Hansen spoke with Sergeant Tilley of the Douglas County Sheriff's Office, whom Hansen knew was familiar with defendant. Tilley told Hansen that defendant had been living in Sutherlin in one of the two RVs that defendant owned. However, Tilley also told Hansen that defendant had recently moved, and, though one of his RVs remained in Sutherlin, Tilley did not know where the other RV was located. Following additional investigation, Hansen discovered that defendant was residing in his second RV on property within 1, 000 feet of a school in Oakland.

         On December 2, 2014, Hansen conducted surveillance of defendant's residence in Oakland. While watching defendant's home, Hansen saw defendant leave in a blue Toyota truck. At that time, Hansen knew, based on previous research, that defendant's license was suspended. Hansen followed defendant for a while, but eventually lost him. After coordinating with a number of other law enforcement agents, Hansen arranged for another officer to stop defendant for driving while suspended. Defendant was stopped and arrested on that charge.

         Hansen eventually joined that traffic stop. Hansen spoke with defendant and asked if he would consent to a search of his truck. Defendant refused to consent, so Hansen called for a drug detection dog. While waiting for the drug detection dog to arrive, defendant spoke with another officer at the scene and indicated that he had around two ounces of marijuana in his vehicle and that he did not have a medical marijuana card. Hansen then spoke with defendant again, and defendant confirmed that he was living at the address where Hansen had previously observed him in Oakland. Officers then searched defendant's truck and found approximately 2.3 ounces of marijuana.

         After finding the marijuana, Hansen spoke with defendant for a third time. He asked defendant if there was any marijuana or drug paraphernalia in his RV. Defendant said that there was no paraphernalia in his RV, but indicated that the RV did contain "a little bit of marijuana." During that conversation, neither Hansen nor defendant specified which of defendant's RVs they were discussing.

         Defendant was taken to jail, and, based upon the information that they had received from defendant, two law enforcement officers-Detective Bird and Sergeant Case- drove to defendant's residence in Oakland. There, the officers contacted Braack, defendant's landlord who also lived on the property in Oakland where defendant's RV was located. After confirming that defendant lived in the RV on the property, Braack told the officers that she had "a lot" of marijuana in her bedroom closet that she was "trimming" for defendant so that he could sell it to his "patients." Braack then let Bird and Case into her home and showed Case the marijuana in her closet.

         Based on the above information, Hansen applied for a search warrant for the Braack residence, defendant's RV in Oakland, and a Pontiac Grand Prix that belonged to defendant that was also located on Braack's property in Oakland. Based upon Hansen's application, a magistrate issued a warrant. Pursuant to that warrant, officers searched defendant's RV and found, among other things, a quarter pound of marijuana, a large amount of methamphetamine, meth-amphetamine paraphernalia, and a large quantity of cash.

         Defendant was eventually charged by a five-count indictment with various offenses related to his possession of methamphetamine and marijuana. Defendant moved to suppress "all evidence seized from his person and/or vehicle, *** and his home, an RV." After excising portions of Hansen's affidavit, the trial court held that the affidavit failed to establish the probable cause necessary to justify the search of defendant's RV. Looking at each fact in the affidavit individually, the court concluded that none of the facts, including defendant's possession of over two ounces of marijuana, his statement that he had more marijuana in his RV, his landlord's statements indicating that she was processing a lot of marijuana for defendant, and the large amount of marijuana his landlord had in her bedroom closet, established a sufficient link between defendant's illegal activities and his RV in Oakland such that a ...

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