§ 4.8 Substantive Requirements

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 4.8 SUBSTANTIVE REQUIREMENTS

§ 4.8-1 Affidavit Must Establish Probable Cause

A warrant must be supported by probable cause. Or Const, Art I, § 9; ORS 133.555(2); State v. Carter, 316 Or 6, 9, 848 P2d 599 (1993). In the context of search warrants, probable cause has been interpreted to mean that "the facts upon which the warrant is premised must lead a reasonable person to believe that seizable things will probably be found in the location to be searched." State v. Anspach, 298 Or 375, 380-81, 692 P2d 602 (1984). Probably means "more likely than not." State v. Maxfield, 133 Or App 371, 374, 891 P2d 1342, adh'd to as modified on recons, 134 Or App 542, 896 P2d 581 (1995). In testing an affidavit, a court is to construe it "in a commonsense, nontechnical and realistic fashion looking at the facts recited and the reasonable inferences that can be drawn from those [facts]." State v. Wilson, 178 Or App 163, 167, 35 P3d 1111 (2001) (citations omitted).

NOTE

For Fourth Amendment purposes, probable cause means "a fair probability that contraband or evidence of a crime will be found." Illinois v. Gates, 462 US 213, 238, 103 S Ct 2317, 76 L Ed 2d 527 (1983). In other words, probable cause "requires only a fair probability or substantial chance of criminal activity, not an actual showing that such activity occurred." Murdock v. Stout, 54 F3d 1437, 1441 (9th Cir 1995).

An affidavit must not be based on unfounded assumptions or bare assertions. See State v. Carter, 132 Or App 461, 467-69, 889 P2d 354, rev den, 321 Or 268 (1995) (electric power consumption figures alone will not support a search warrant for a marijuana-growing operation in a residence that uses wood heat); State v. Kreutzer, 138 Or App 306, 311-14, 909 P2d 175 (1995) (the bare assertion that an informant saw marijuana is insufficient in the absence of information establishing the informant's ability to identify marijuana).

An observation of plants in a window whose color and stem shape were "consistent with" marijuana was held inadequate to support a search warrant, because the affiant-officer, an expert in identifying marijuana, did not state that he "could or did identify" the plants as marijuana. Carter, 316 Or at 12-13. The court explained the standard: "A fact that merely supports an inference that some other fact is possible—as one among the range of many other and different possibilities—does not support an inference that any specific one of the possible facts is itself probable." Carter, 316 Or at 13.

Nevertheless, an affidavit is not insufficient merely because the information contained in it gives rise to more than one reasonable inference, as long as the issuing magistrate reasonably could conclude "that seizable things will more likely than not be found in the location to be searched." State v. Pelster, 172 Or App 596, 609, 21 P3d 106, rev den, 332 Or 632 (2001). See also State v. Duarte, 237 Or App 13, 19, 238 P3d 411, rev den, 349 Or 370 (2010) (the possibility of "innocent explanations" for high power and water consumption and structural modifications to a house did not require the magistrate to accept those possible inferences). A police officer's training and experience may be used "to provide a criminal law nexus to a series of other, separately verified facts which—absent the officer's explanation—could be understood to be innocent." State v. Goodman, 328 Or 318, 328, 975 P2d 458 (1999). However, "an officer's expertise, unconnected to objective facts derived from other sources, will [not] satisfy constitutional requirements." Goodman, 328 Or at 328.

§ 4.8-1(a) Nexus between Objects Sought and Places to Be Searched

An affidavit must establish a sufficient "nexus between the objects sought and the place to be searched." State v. Gloster, 145 Or App 555, 558, 932 P2d 68 (1997) (quoting State v. Tidyman, 54 Or App 640, 643-44, 635 P2d 1355 (1981), rev den, 292 Or 722 (1982)). For example,

[i]n cases involving warrants to search buildings for evidence of outdoor marijuana growing operations, the affidavit must contain facts and objective observations sufficient to permit a reasonable judge to conclude that there is probable cause to believe (1) that the residents or owners of the building have some relationship to the growing operation; and (2) that marijuana, tools, or evidence of processing and sale of marijuana probably are in the building for which the warrant is sought.

State v. Goodman, 328 Or 318, 325, 975 P2d 458 (1999). See State v. Milosevich, 131 Or App 51, 53-55, 883 P2d 898, rev den, 320 Or 492 (1994) (a nexus was established between Forest Service land used to grow marijuana and the defendant's house); State v. Strailey, 131 Or App 44, 46-50, 883 P2d 901 (1994), rev den, 320 Or 508 (1995) (a nexus existed between evidence observed on forestland and the defendant's house). But see State v. Miller, 254 Or App 514, 527-28, 295 P3d 158 (2013) (no nexus to residence because the affidavit did not explain why the residence would contain evidence of drug deals conducted in a vehicle; the mere statement that drug dealers "store items" and records was insufficient).

The proximity of a building to the home of a person suspected of possessing controlled substances generally will establish the required nexus. Gloster, 145 Or App at 558. "When, however, the building or vehicle is owned or occupied by persons other than those suspected of criminal activity, more is required than proximity." State v. Thibodeaux, 173 Or App 353, 357, 22 P3d 248 (2001). See Gloster, 145 Or App at 559 (knowledge that methamphetamine users "often may store drugs in their sheds" does not support a search of a shed that the defendant rented to others (emphasis in original)).

A magistrate may give weight to an officer's knowledge that is based on training and experience if other facts in the affidavit provide a nexus to the place to be searched. For the magistrate to give weight to the officer's statement, there must be some nexus between the officer's experience and the other information in the affidavit. State v. Beagles, 143 Or App 129, 136, 923 P2d 1244, rev den, 324 Or 487 (1996).

EXAMPLE

In State v. Fronterhouse, 239 Or App 194, 243 P3d 1208 (2010), the issuing magistrate could rely on the officer's training and experience to explain his basis of knowledge that the plants he saw during aerial surveillance of the defendant's property were more likely than not marijuana plants, even without providing a description of the particular characteristics of marijuana plants.

Again, expertise is a permissible way to establish a criminal nexus between a series of "other, separately verified facts which—absent the officer's explanation—could be understood to be innocent." Goodman, 328 Or at 328.

§ 4.8-1(b) Staleness

The term staleness is a "shorthand description of the analysis about whether or not the evidence sought will be there after the length of time since the event described in the affidavit occurred." State v. Young, 108 Or App 196, 204, 816 P2d 612 (1991), rev den, 314 Or 391 (1992). Staleness of information in an affidavit is an important consideration because probable cause must exist at the time that the order is issued. State v. Howell, 93 Or App 551, 559, 763 P2d 179 (1988), rev den, 307 Or 405 (1989). Although the age of the information is relevant to the determination of probable cause, its probative value is considered in light of all the facts presented in the affidavit. State v. Arana, 165 Or App 454, 458, 998 P2d 688 (2000).

To assess staleness, the court generally considers "(1) the length of time; (2) the 'perishability' versus the durability of the item; (3) the mobility of the evidence; (4) the 'nonexplicit[l]y inculpatory character' of the evidence; and (5) the 'propensity of an individual suspect or general class of offenders to maintain and retain possession of such evidence.'" State v. Gustafson, 300 Or App 438, 447, 452 P3d 962 (2019), rev den, 366 Or 493, cert den, 141 S Ct 858 (2020) (citation omitted; alteration added). In Gustafson, the court concluded that the defendant's computers would still contain the same or similar digital images evidencing child sexual abuse, despite that approximately 10 years elapsed since employees viewed the images, given an assessment of the five factors and the persistent nature of the defendant's conduct. Gustafson, 300 Or App at 450. Compare State v. Henderson, 341 Or 219, 225, 142 P3d 58 (2006) (it was reasonable to infer that rings, which are valuable, nonperishable items suitable for personal use, may have been kept for three or more weeks); and State v. Duarte, 237 Or App 13, 238 P3d 411, rev den, 349 Or 370 (2010) (information that marijuana dealers ordinarily maintain a continuous supply of plants to ensure an ongoing source for sale, along with expensive nature of grow equipment, supported probable cause to believe that evidence would be found months after an informant's observations); with State v. Van Osdol, 290 Or App 902, 909-11, 417 P3d 488 (2018) (two drug transactions, the most recent within 96 hours, conducted by nonresidents in the defendant's presence did not make it more likely than not that evidence remained in the residence thereafter); and State v. Ulizzi, 246 Or App 430, 266 P3d 139 (2011), rev den, 351 Or 649 (2012) (without information about the maturity or growth cycle of...