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State v. Osdol

Court of Appeals of Oregon

March 21, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
JOSEPH ROSS VAN OSDOL, Defendant-Appellant.

          Argued and submitted December 21, 2016

          Clatsop County Circuit Court 14CR02037; A159266 Philip L. Nelson, Judge.

          Neil F. Byl, Deputy Public Defender, argued the cause for appellant. With him on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          David B. Thompson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeVore, Presiding Judge, and Garrett, Judge, and Ja mes, Judge. [*]

          [290 Or. 903] Case Summary:

         Defendant appeals a judgment of conviction for unlawful manufacture of marijuana, unlawful possession of heroin, and unlawful possession of a short-barreled firearm. On appeal, defendant assigns error to the trial court's denial of his motion to suppress evidence obtained from the search of his residence. Defendant argues that the affidavit submitted in support of the search warrant failed to establish that the police had probable cause to believe that evidence of delivery of heroin, ORS 475.850, would be found in his residence. The state does not defend that the warrant did not establish probable cause that evidence of ORS 475.850 would be found in defendant's residence, but argues on appeal that the affidavit did establish probable cause that defendant's residence contained evidence of ORS 167.222, frequenting a place where controlled substances are used. Held: The trial court erred in denying defendant's suppression motion. The affidavit submitted in support of the warrant did not establish probable cause that evidence of either ORS 475.850 or ORS 167.222 would be found in defendant's residence. Not only was there no averment to facts showing ongoing drug activity sufficient to establish delivery, the affidavit failed to establish that defendant's residence was a location where a principal or substantial purpose is the commercial sale or use of illegal drugs, as required for ORS 167.222.

         Reversed and remanded.

          [290 Or. 904] JAMES, J.

         Defendant appeals a judgment of conviction for unlawful manufacture of marijuana, former ORS 475.856, repealed by Or Laws 2017, ch 21, § 126; unlawful possession of heroin, ORS 475.854; and unlawful possession of a short-barreled firearm, ORS 166.272, assigning error to the trial court's denial of his motion to suppress evidence obtained during the execution of a warrant to search his residence for evidence related to the crimes of delivery of heroin, ORS 475.850, and frequenting a place where controlled substances are used, ORS 167.222. Defendant argues that the affidavit submitted in support of the warrant failed to establish that the police had probable cause to believe that evidence of either of those crimes would be found in the residence. The state, in response, argues that the affidavit at least established probable cause that defendant was knowingly permitting persons to unlawfully keep or sell controlled substances at his residence-the offense defined in ORS 167.222-and that evidence of that offense would be found in his residence. We agree with defendant and therefore reverse and remand.

         In February 2014, Corporal Joshua Zundel of the Seaside Police Department applied for a warrant to search, among other places, a house on Alameda Street in Astoria, Oregon. In Zundel's affidavit in support of the warrant, he averred that 30 days prior to the warrant affidavit, a confidential reliable informant (CRI) had purchased an undisclosed amount of heroin from a dealer named McGee at the Alameda house, which is described as a "3-story red house" with a driveway on the west side of the building and the main entrance on the east side. The affidavit explains that the same CRI used in the McGee controlled buy also engaged in a controlled buy of heroin from another dealer, Konecny, 96 hours prior to the warrant affidavit, also at the Alameda house. Neither Konecny, nor McGee, nor the CRI were residents of the Alameda Street property.

         The affidavit asserts that the CRI had purchased heroin from McGee on at least 20 previous occasions, none of which were identified as being at the Alameda house. The affidavit also contains information regarding two other controlled buys conducted by the CRI under the supervision of [290 Or. 905] Zundel: one out of McGee's car at an undisclosed location in Clatsop County, and the other at a residence in Chinook, Washington, Pacific County.

         The affidavit states that, within the last 30 days, the CRI contacted McGee about the purchase of heroin, and they agreed to meet at the Alameda house, although it does not disclose who suggested the location. Detectives observed the CRI arrive at the house, and the CRI returned with a baggie containing heroin. There is no information about who, if anyone, let the CRI into the house. The amount of heroin and the purchase price are also not disclosed in the affidavit.

         With respect to the Konecny buy, the affidavit notes that the CRI had previously purchased heroin at least 15 times from Konecny, though none of those previous buys were identified as having occurred at the Alameda house. In describing the controlled buy with Konecny, the affidavit states that the CRI contacted Konecny and arranged for the purchase of heroin, but like with the McGee buy, does not disclose who suggested the location. Detectives observed the CRI arrive at the house and meet with Konecny, but the affidavit does not disclose who, if anyone, let the CRI and Konecny into the house. The CRI then returned and provided detectives with a baggie containing a substance that was determined to be heroin. Again, the affidavit does not disclose the amount of heroin that was purchased or the purchase price.

         Defendant, though not identified as the subject of the drug-trafficking investigation, is identified as a resident of the Alameda house where the two controlled buys occurred. And the affidavit states that the CRI reported to detectives that defendant was present at the Alameda house during those controlled buys. The affidavit states that during the Konecny buy, the CRI informed detectives that defendant and another individual, Johnson, were "at the residence when the drugs were being sold"; it further states that the detectives "know these subjects to be known drug users." With regard to the McGee buy, the affidavit states that the CRI informed detectives that defendant, Johnson, and another individual, Sheker, were "at the residence when [290 Or. 906] the drugs were being sold, " and that the detectives "know these subjects to be known drug users." The affidavit does not, however, indicate that either defendant or Johnson were present in the room when the buys occurred or knew that the CRI or either dealer were present in the house.

         Zundel's affidavit summarized that he believed that Konecny and McGee were in violation of ORS 475.850, delivery of heroin, and ORS 167.222, frequenting a place where controlled substances are used, and that they were involved in an ongoing basis in distributing heroin. He also averred that, based on his training and experience, evidence of crimes in violation of ORS 475.850, delivery of heroin, are often kept for long periods of time "in locations controlled or accessed by drug-traffickers where they have engaged with others in long-term, on-going drug-trafficking activities." Zundel averred that such evidence includes "heroin and other controlled substances commonly maintained within the address and telephone numbers of their associates in the trafficking organization, " "caches of drugs, large amounts of currency, financial instruments, precious metals, jewelry, stolen property and other items of value and/ or proceeds of drug transactions, " "firearms for use in protecting their drugs, " "books, records, notes, ledgers, airline tickets * * * and other papers that narcotics traffickers obtain and possess relative to the transportation, ordering, sale, and distribution of controlled substances, " and "digital scales, balancing scales, and any other weighing devices." Zundel's affidavit requested permission to search Konecny's residence, McGee's vehicle, and defendant's residence on Alameda.

         Based on Zundel's affidavit, a magistrate issued a warrant to search the Alameda house for evidence related to an ongoing drug distribution enterprise, including:

"backpacks, safes, lockboxes and their stored content, storing and packaging materials, scales, Heroin, and other controlled substances, stolen items, weapons, financial records, drug records, evidence of cash expenditures, pagers and cellular phones and their stored contents, information disclosing identifications, locations, and activities of co-conspirators, phone lists, travel documents, drug packaging materials, trace amounts of Heroin, stolen property [290 Or. 907] as well as other items which are also evidence, fruits, and tools of drug trafficking in violation of ORS 475.850 DCS-Heroin and ORS 167.222 Frequenting a Place where Controlled Substances are used."

         The ensuing search yielded the drug-related evidence that was the basis of the charges against defendant.

         Before the trial court, defendant moved to suppress the evidence obtained during the search of his residence, arguing that there was not probable cause to search his residence. The state defended the warrant, arguing solely that the affidavit established probable cause of a violation of ORS 475.850, delivery of heroin. No arguments before the trial court addressed the second crime alleged in the warrant, ORS 167.222, frequenting a place where controlled substances are used. Following the trial court's denial of the motion to suppress, defendant proceeded to trial and was found guilty of unlawful manufacture of marijuana, unlawful possession of heroin, and unlawful possession of a short-barreled firearm. Defendant was acquitted of unlawful possession of methamphetamine.

         On appeal, defendant assigns error to the denial of his motion to suppress, again arguing that Zundel's affidavit did not contain information sufficient to establish that it was more likely than not that the defendant's residence would contain evidence of ORS 475.850, delivery of heroin. However, on appeal, the state shifts tactics and offers no defense of the affidavit as establishing probable cause for ORS 475.850. Instead, the state focuses on the crime of frequenting a place where controlled substances are used, arguing that the ...


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