469
183 v. Marmon
State 303 8,
April Or2020
App
Argued and submitted August 1, 2019, reversed and remanded April 8, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
AARON SCOTT MARMON,
Defendant-Appellant.
Linn County Circuit Court
16CR71413; A166665
463 P3d 555
Defendant appeals a judgment of conviction for both unlawful delivery and
unlawful possession of heroin, assigning error to the trial court’s denial of his
motion to suppress evidence obtained during a search of his residence. The
search occurred after police obtained a warrant based on information provided
by a confidential informant (CI). Held: The affidavit supporting the search warrant failed to establish the reliability of the CI and, without the evidence the CI
provided, the warrant lacked probable cause. Accordingly, the trial court erred
when it denied defendant’s suppression motion.
Reversed and remanded.
Daniel R. Murphy, Judge.
Morgen E. Daniels, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
David B. Thompson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before DeHoog, Presiding Judge, and Mooney, Judge, and
Kamins, Judge.*
KAMINS, J.
Reversed and remanded.
______________
* Kamins, J., vice Hadlock, J. pro tempore.
470 State v. Marmon
KAMINS, J.
Defendant appeals a judgment of conviction for
delivery of heroin, ORS 475.850, and possession of methamphetamine, ORS 475.894. He contends that the trial court
improperly denied his motion to suppress evidence obtained
from a warrant search of his home. We conclude that the
affidavit supporting the warrant failed to establish the reliability of a confidential informant and that, without the evidence the informant provided, the warrant lacked probable
cause. Accordingly, we reverse and remand.
The facts of this case center on defendant’s house
(the Water Avenue house). In August of 2016, a confidential
informant (CI)—a convicted felon knowledgeable about drug
use and transactions—provided information to police about
the Water Avenue house. The CI reported that two individuals who he had heard were selling heroin, Tiller and Sugden,
lived at the Water Avenue house. The CI also claimed to
have been to the house and seen burnt foil and other “heroin
use materials” inside.
In August and September 2016, two neighbors
also reported concerns to police over potential drug trafficking activity at the house, including “high volume short
stay” traffic and a woman seen using drugs in a parked
car. Following those reports, on September 6, an officer visited the Water Avenue house and spoke with defendant in
the doorway. Defendant stated that two of his roommates
had recently moved out and that he lived there alone with
his seven-year-old son. He denied any drug activity, but he
acknowledged knowing Tiller.
During the month of October, a detective periodically checked on the Water Avenue house and observed
that Tiller and a woman “consistent with” the description
of Sugden were “frequenting” the house. Both Tiller and
Sugden had criminal records of drug-related activity, including outstanding warrants.
Officers observed three other suspicious events at
the Water Avenue house. The first occurred on October 12,
more than a month after the officers had spoken with defendant. A detective observed a man, who he recognized as
Cite as 303 Or App 469 (2020) 471
Anderson, leaving the Water Avenue house. Anderson had
recently been cited for heroin possession.
The second event occurred the following day. A
detective observed a car belonging to Johnston—who had
been convicted of heroin delivery—in defendant’s driveway.
When Johnston left, the detective pulled him over for a traffic infraction and discovered a large amount of money and
a scale used to weigh heroin. Both the money and the scale
contained traces of heroin. A search of Johnston’s phone
revealed numerous messages consistent with drug sales,
including one from defendant. The same day that Johnston
visited the Water Avenue house, defendant had texted him,
“I got what I owe you plus a little more.”
The final notable event, on November 1, involved
another convicted drug offender—Barclay—traveling to
the Water Avenue house on a bicycle. Barclay went into the
entry area of the house, spent four minutes there, and then
left. When he was subsequently stopped by a police officer, Barclay initially denied visiting the house at all. The
officer discovered several items commonly associated with
methamphetamine on his person, including two straws and
a baggie. Those items tested positive for trace amounts of
methamphetamine.
Based on that series of events, along with defendant’s criminal history, which involved a “cycle” of drug-related arrests, police sought and obtained a warrant to
search the Water Avenue house on November 4, 2016. The
search uncovered items associated with drug transactions,
including a scale, spoon, and baggie with trace amounts of
heroin; a baggie containing a small amount of methamphetamine; and a notebook containing what appeared to be drug
records. A search of defendant’s phone also revealed text
messages related to drug transactions.
Defendant asked the trial court to suppress the evidence found at the Water Avenue house, arguing that the
warrant did not establish probable cause sufficient to justify
a search. After reviewing the detective’s affidavit recounting the observations detailed above, the trial court determined that the affidavit failed to establish the reliability of
472 State v. Marmon
the CI. Nevertheless, the court concluded that, even after
excising the CI’s information, the affidavit contained sufficient evidence to establish probable cause, and the court
admitted the evidence obtained from the search. Following
a bench trial, the court found defendant guilty of methamphetamine possession and heroin delivery. On appeal, defendant assigns error to the trial court’s denial of his motion
to suppress, and the state cross-assigns error to the trial
court’s decision to excise the information obtained from the
CI.
We review the question of whether a warrant affidavit establishes probable cause for legal error. State v. Webber,
281 Or App 342, 346,
383 P3d 951 (2016). Because search
warrants are presumptively valid, it is a defendant’s burden to establish that a warrant is defective, and we resolve
“doubtful cases” in favor of upholding the warrant. State v.
Van Osdol,
290 Or App 902, 907-08,
417 P3d 488 (2018). In
making that determination, we rely on the facts set forth in
the affidavit, together with any reasonable inferences that
those facts support. State v. Chamu–Hernandez,
229 Or App
334, 341,
212 P3d 514, rev den,
347 Or 43 (2009).
In light of the parties’ arguments, in reviewing the
sufficiency of this warrant, we must make two determinations: whether the information obtained from the CI was
reliable and, depending on the answer to the first question,
whether the affidavit as a whole (either with or without the
information from the CI) establishes probable cause that evidence of a crime will be discovered. Turning to the reliability
of the CI’s information first, the affidavit must demonstrate
one of two things: that the informant is “credible” or that
the information provided is “reliable.” State v. Bostwick, 226
Or App 57, 64,
202 P3d 259, rev den,
346 Or 589 (2009); see
also State v. Andersen,
361 Or 187, 200,
390 P3d 992 (2017)
(“When the affiant lacks personal knowledge of the facts
that give rise to probable cause and relies instead on information from other persons, the affidavit must demonstrate
the reasons why the affiant finds the informant credible or
reliable.”).
Both sides agree, as do we, that the affidavit is
silent on the CI’s credibility, other than establishing that he
Cite as 303 Or App 469 (2020) 473
is familiar with drug use and drug culture. Indeed, nothing
in the affidavit even speaks to facts that would establish
his credibility, such as the CI’s history of providing accurate
information. See, e.g., State v. Shutvet,
105 Or App 97, 100,
803 P2d 287 (1990), rev den,
311 Or 427 (1991) (finding an
informant credible “on the basis of previous information he
had given to the police”).
Because the affidavit is silent on the credibility of
the CI himself, both the state and defendant focus their
arguments on the reliability of the CI’s information.1 See
State v. Alvarez, 308 Or 143, 147,
776 P2d 1283 (1989) (“When
we focus upon the reliability of an informant’s information,
however, we consider something distinct from the credibility, character, or reputation for truthfulness of the informant. The reliability of an informant’s information refers
to circumstances assuring that the particular information
is indeed trustworthy on a specific occasion.”). The CI provided three pieces of relevant information: that he had personally observed heroin-related items in the Water Avenue
house, that he knew Tiller and Sugden lived at the house,
and that he had heard that Tiller and Sugden were selling
heroin. Again, the affidavit’s description of the CI’s information is not of much help. The affidavit is silent on details
that might internally corroborate the information, such as,
for example, the CI’s description of the Water Avenue house
sufficient to demonstrate that he had been inside, details
about where and how the CI learned that Tiller and Sugden
resided there, or even a physical description of the key players. See Bostwick,
226 Or App at 65 (“[T]he level of detail of
the information supplied by an unnamed informant assists
in establishing its reliability.”).
The state asks us to ignore the lack of detail
because independent facts are sufficiently consistent with
the CI’s statements to corroborate them. However, in order
1
Both parties focus their arguments on the second prong of the two-part
Aguilar-Spinelli test, and we similarly focus our analysis. See State v. Evoniuk,
80 Or App 405,
722 P2d 1277 (1986) (“Under Oregon law, if an affidavit contains
hearsay information provided by unnamed informants, it must satisfy the two-part Aguilar-Spinelli test by setting forth (1) the basis of the informant’s knowledge and (2) facts showing the informant’s veracity.”); see also Spinelli v. United
States,
393 US 410,
89 S Ct 584,
21 L Ed 2d 637 (1969); Aguilar v. Texas,
378 US
108,
84 S Ct 1509,
12 L Ed 2d 723 (1964).
474 State v. Marmon
for outside facts to act as the sole corroboration for the CI’s
information, those facts themselves must be sufficiently
detailed in the affidavit. The corroborating information here
appears to be that the outside of the Water Avenue house is
consistent with the CI’s description, that two neighbors also
reported drug trafficking concerns with the house, and that
Tiller and, perhaps, Sugden were seen at the house. But that
information does not contain the type of detail that could
corroborate an unnamed informant’s report. Nothing about
that additional information demonstrates that the CI is
likely telling the truth—by corroborating details that would
typically not be known to a person who lacked knowledge
of the subject, for example. A consistent description of an
openly visible house exterior does not substantially corroborate the CI’s statements, nor does the fact that neighbors
called in concerns over drug trafficking in a neighborhood
where drug trafficking is fairly common.2
The most detailed observation is that the CI accurately reported that defendant associated with Tiller and
perhaps Sugden. Indeed, a detective observed Tiller and
a woman “consistent with” Sugden frequenting the Water
Avenue house, and defendant himself mentioned to police
that he knew Tiller. However, that corroborates only that
the CI correctly identified a person who associates with
defendant. Given that defendant chose to “mention” the
same thing to police, it does not appear that defendant was
attempting to keep that information private. Indeed, the CI
could have observed Tiller leaving the house and invented
the rest, which would have been equally consistent with the
information provided. If, as here, the CI’s information is just
as consistent with fabrication as with veracity, then the affidavit does not demonstrate reliability. Accordingly, we reject
the state’s cross-assignment of error and examine the affidavit without the CI’s information.
With the CI’s information excised, we conclude that
the affidavit lacks sufficient evidence to establish probable
cause. The facts of the affidavit must establish that it is more
2
Several of the “spot surveillances” of the Water Avenue house described in
the warrant affidavit occurred while officers were investigating another house
in the neighborhood, a neighborhood the affidavit characterized as a “high drug
crime area, heavily populated by users and dealers of controlled substances.”
Cite as 303 Or App 469 (2020) 475
likely than not: “(1) that a crime has been, or is currently
being, committed, and that (2) evidence of that crime (3) will
be found in the place to be searched.” State v. Cannon,
299
Or App 616, 626-27,
450 P3d 567 (2019). The state focuses
its argument on whether the affidavit establishes probable cause for the misdemeanor crime of frequenting a place
where controlled substances are used, in violation of ORS
167.222.3 As we recently observed, for a warrant to establish
probable cause of that crime, it must establish that
“a person with the legal authority over the location must
knowingly permit, through affirmative or tacit authorization or consent, the use, possession, or sale of the controlled
substances at the location where a principal or substantial
purpose is the commercial sale or use of illegal drugs.”
Van Osdol,
290 Or App at 915.
Although the information in the affidavit is certainly
suggestive of drug activity at the Water Avenue house, probable cause of the elements of the stated crime for a search
warrant requires substantially more than that. At their
core, the facts here establish that two neighbors reported
concerns about the house in August and September, and
four people with drug records, some of whom were carrying
drug paraphernalia, were stopped or observed at the house
over a three-month period. Those events fail to establish
that drugs or evidence of drug transactions were likely to be
discovered at the Water Avenue house on November 4.
Moreover, much of the information in the affidavit was stale by November 4. 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
392 (1992). We evaluate the staleness of the evidence in an
affidavit because “probable cause must exist at the time the
order is issued.” State v. Mituniewicz,
186 Or App 95, 104,
62
P3d 417, rev den,
335 Or 578 (2003). The only recent event in
3
ORS 167.222(1) provides that “[a] person commits the offense of frequenting a place where controlled substances are used if the person keeps, maintains,
frequents, or remains at a place, while knowingly permitting persons to use controlled substances in such place or to keep or sell them” illegally.
476 State v. Marmon
this affidavit occurred three days prior when a man spent
four minutes at defendant’s house and was then found with
drug paraphernalia—but neither drugs nor money (the classic results of a drug transaction). The most suspicious event,
and the only one directly involving defendant, occurred
three weeks prior, on October 13. On that day, defendant
had sent a text message to a suspected drug dealer stating
that he had money for him, and the suspected drug dealer
was stopped later that day after leaving the Water Avenue
house with a large quantity of money in his possession.
However, information related to readily consumable drugs
like heroin or marijuana is particularly prone to staleness.
Van Osdol, 290 Or App at 909-10 (heroin evidence stale four
days later); State v. Kittredge/Anderson,
36 Or App 603,
606-07,
585 P2d 423 (1978) (marijuana evidence stale four
days later). The affidavit offers no reason to believe that evidence from an October 13 transaction would be at the house
on November 4. As a result, a reasonable magistrate could
not conclude that drugs probably remained on site three
weeks after a suspected transaction.4
Because the facts in the warrant affidavit fail to
establish probable cause that evidence of a crime would
be located at the Water Avenue house on November 4, the
search warrant was not valid, and the evidence obtained
there should have been suppressed. Accordingly, we reverse
and remand for further proceedings.
Reversed and remanded.
4
The state suggests only that evidence of Tiller and Sugden’s ongoing drug
enterprise defeats defendant’s assertions of staleness, but the affidavit’s scant
information about that “enterprise” is derived only from the CI.
