State v. Nelson

                                       226

      Argued and submitted November 26, 2019, reversed and remanded
                            October 14, 2020


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                      KORI LEIGH NELSON,
                         aka Kori L. Nelson,
                        Defendant-Appellant.
                     Marion County Circuit Court
                        17CR06369; A167421
                                   

    Defendant appeals, challenging her conviction for unlawful possession of
methamphetamine. She challenges the trial court’s acceptance of a nonunanimous guilty verdict as violating the Sixth Amendment to the United States
Constitution. She also challenges the trial court’s denial of her pretrial motion to
suppress evidence that law enforcement seized from the bedroom that she shared
with her boyfriend, a methamphetamine dealer, while executing a search warrant. Defendant does not contest that the affidavit in support of the warrant
created probable cause to search a shipping container located in the backyard
of the property, but she contends that it did not create probable cause to search
the house, particularly the bedroom. Held: The judgment is reversed, because
convicting defendant of unlawful possession of methamphetamine based on a
nonunanimous jury verdict violated the Sixth Amendment as recently interpreted by the United States Supreme Court. As for defendant’s motion to suppress, the trial court erred in denying the motion, because the affidavit did not
create probable cause to believe that evidence of drug-dealing activity would be
found in the house. Nothing in the affidavit allowed an inference that defendant’s
boyfriend was keeping drugs or related evidence in any location other than the
shipping container.
    Reversed and remanded.



    Tracy A. Prall, Judge.
   Brett J. Allin, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Susan G. Howe, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
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   Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Sercombe, Senior Judge.
  AOYAGI, J.
  Reversed and remanded.
228                                           State v. Nelson

        AOYAGI, J.
         Defendant appeals her conviction for unlawful
possession of methamphetamine, ORS 475.894. In seven
assignments of error, she challenges the trial court’s denial
of her motion to suppress, denial of her motion for judgment
of acquittal, acceptance of a nonunanimous guilty verdict
in violation of the Sixth Amendment to the United States
Constitution, and imposition of several probation conditions.
For the reasons that follow, we reverse defendant’s conviction on Sixth Amendment grounds, which obviates the need
to address her probation conditions. We also conclude that
the trial court erred in denying defendant’s motion to suppress. We affirm without discussion the denial of defendant’s
motion for judgment of acquittal.
                           FACTS
         For purposes of the motion to suppress, the parties
agree that the only relevant facts are those stated in the
affidavit in support of the search warrant. We therefore
summarize the pertinent facts from the affidavit, as well as
describe what occurred procedurally after execution of the
warrant.
        Defendant, her longtime boyfriend Blalack, and
Blalack’s parents live at an address in Jefferson (the
Jefferson property). The property contains a single-story
house with an attached garage, multiple outbuildings, and a
large metal “Conex-style” shipping container situated in the
backyard.
        In late September, a confidential informant told law
enforcement officers that he or she buys methamphetamine
from MB, who regularly buys methamphetamine from
Blalack; that Blalack also sells methamphetamine to DW;
and that Blalack lives in a trailer behind his elderly parents’
house in Jefferson.
        In October, a person arrested in a “drug bust” told
law enforcement officers that he or she had recently purchased more than a quarter pound of methamphetamine
from Blalack at a location consistent with the Jefferson
property. The person provided the following information.
The transaction occurred in a metal Conex-style shipping
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container in the backyard of the residence, and the person
saw about two pounds of methamphetamine in the shipping
container. On previous occasions, the person had purchased
only a personal-use amount of methamphetamine from
Blalack. Blalack uses the shipping container as a “workshop.” The drugs are kept in a locked box inside the shipping
container, which also contains cash. Defendant is Blalack’s
girlfriend, and Blalack, defendant, and Blalack’s parents all
live at the residence.
         On November 3, a deputy named Miller and
another officer surveilled the Jefferson property. In connection with that surveillance, a woman named Konrad was
followed and arrested after leaving the property. Konrad
admitted to having purchased 1/16 ounce of methamphetamine from Blalack. Konrad considers herself to be friends
with both Blalack and defendant, who lives with Blalack.
Konrad stated that she had purchased methamphetamine
from Blalack about five times. On this occasion, she did not
call or text ahead, which is not unusual, as she avoids calling or texting Blalack and defendant “because she does not
want to get them in trouble.” Konrad told the officers that
Blalack has a bedroom in the house but that they “did the
deal” in the large metal Conex-style shipping container in
the backyard. According to Konrad, Blalack keeps his methamphetamine in a toolbox on a shelf toward the back of the
shipping container. Blalack sometimes weighed out methamphetamine in front of her, but, on this occasion, he just
took a baggie out of his pocket and gave it to her. Konrad
stated that defendant is not involved in the methamphetamine dealing and “usually stays in the house during the
transaction” but “comes outside” to smoke with them once
the deal is complete.
         On November 4, Miller learned from another officer
that a confidential informant had done three controlled buys
of methamphetamine from Konrad in August. That informant told the officer that Konrad got her methamphetamine
from Blalack.
        With the foregoing information, Miller applied
for a warrant to search the Jefferson property, including
the property, residence, curtilage, outbuildings, and other
230                                                         State v. Nelson

structures used for storage; any persons located at the property; and any vehicles parked at or in front of the property
that could be connected to an occupant of the property.
Miller requested to search for, among other things, controlled substances, processing and distribution equipment,
written records and documents, items of identification,
latent prints, illegal proceeds, computer tapes and disks,
travel records, financial statements, ownership and registration documents, safe deposit and storage unit records and
keys, firearms, and any cellular phones belonging to Blalack
or defendant. In addition to the facts specific to this case,
Miller provided an extensive recitation of his knowledge
from training and experience, including that people who
possess and distribute controlled substances will likely keep
controlled substances in their vehicles, in their residences,
on their property, or in buildings under their control; routinely conceal controlled substances, packaging material,
equipment, and business records in their homes, in outbuildings, on their persons, and in vehicles; maintain a stock of
controlled substances to sell; often sell more than one type
of controlled substance; are likely to keep cash on hand; and
use cellular phones to be readily accessible to customers and
suppliers.

         A magistrate issued the requested warrant to search
the Jefferson property for evidence of delivery and possession of methamphetamine and frequenting a place where
controlled substances are used.1 The warrant was executed
the same day. Among other areas, the officers searched the
house. They apparently did not find any evidence of drug
dealing in the house, but they did find evidence of personal
use in defendant and Blalack’s bedroom. Specifically, they
found three glass pipes (one of which was broken) and an
empty plastic baggie under the bed, and a broken glass pipe
next to a nightstand, all of which later tested positive for
methamphetamine residue.

    1
      Both parties focus on the warrant’s authorization to search for evidence
of drug distribution (drug dealing), and neither party specifically discusses its
authorization to search for evidence of drug possession or frequenting a place
where controlled substances are used. Accordingly, we do the same. We note,
however, that Miller’s affidavit did not contain any additional evidence relevant
to possession or frequenting.
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         Defendant was charged with one count of unlawful
possession of methamphetamine. Before trial, she moved to
suppress the evidence from the bedroom on the basis that
the warrant’s authorization to search the house was not
supported by probable cause, but the trial court denied the
motion. Defendant proceeded to a jury trial, during which
she requested a unanimous-verdict instruction; however,
consistent with controlling law at the time, the trial court
instructed the jury that it could return a nonunanimous verdict. The jury found defendant guilty by an 11-1 vote, and,
based on that verdict, the trial court entered a judgment of
conviction.
               NONUNANIMOUS JURY VERDICT
         Defendant contends that the trial court erred by
instructing the jury that it could return a nonunanimous
verdict and by accepting a nonunanimous verdict on the
only count of the indictment. The state concedes that the
trial court erred. Convicting a person of a serious offense
based on a nonunanimous jury verdict violates the Sixth
Amendment. Ramos v. Louisiana, 

, 

, 

 (2020). We therefore reverse defendant’s conviction on Sixth Amendment grounds.
                       MOTION TO SUPPRESS
         We next address defendant’s motion to suppress,
as relevant to a new trial. Defendant argues that the trial
court erred in denying her motion to suppress the evidence
seized from the bedroom, because the search warrant was
issued without probable cause to search the house. See Or
Const, Art I, § 9 (“[N]o warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person
or thing to be seized.”).2 The state defends the trial court’s
ruling, asserting that the affidavit supporting the warrant
contained sufficient facts from which a neutral magistrate
could conclude that evidence of drug dealing would probably
be found inside the house.

    2
      Defendant relies on both Article I, section 9, of the Oregon Constitution and
the Fourth Amendment to the United States Constitution. Because our analysis
under the former is dispositive, we do not reach the latter.
232                                            State v. Nelson

         An application for a search warrant “shall be supported by one or more affidavits particularly setting forth
the facts and circumstances tending to show that the
objects of the search are in places … to be searched.” ORS
133.545(6). An affidavit’s sufficiency to support the issuance
of a warrant is a question of law. State v. Klingler, 

, 

 (2017). The determination “involves
two questions: (1) whether there is reason to believe that
the facts stated are true, and (2) whether the facts and circumstances disclosed by the affidavit, if true, are sufficient
to establish probable cause to justify the search requested.”
State v. Goodman, 

, 

 (1999)
(internal quotation marks omitted). Here, only the second
question is at issue.

          In conducting our review, we rely on the facts set
forth in the affidavit, together with any reasonable inferences that those facts support. State v. Webber, 

, 

 (2016). “A probable cause determination is based on the totality of the circumstances.” State v.
Fronterhouse/Conant, 

, 

(2010). “To be sufficient, an affidavit in support of a warrant
must permit a conclusion by a neutral and detached magistrate that the items specified in the warrant will probably
be found in a specified place to be searched.” State v. Wilson,

, 

 (2001). The standard
of probability “requires more than a mere possibility, but
less than a certainty.” 

 (citation omitted). In other
words, “the standard of probability requires the conclusion
that it is more likely than not that the objects of the search
will be found at the specified location.” State v. Williams,

, 

 (2015) (internal quotation
marks omitted).

         We view the affidavit “in a commonsense, nontechnical and realistic fashion,” with doubtful cases to be resolved
in favor of the magistrate’s determination of probable cause.
Klingler, 

; see also State v. Henderson, 

, 

 (2006) (“While adhering to the probable cause requirement, we resolve doubtful or marginal
cases in favor of the preference for warrants.”).
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         There is no question that Miller’s affidavit permitted a magistrate to conclude that evidence of Blalack’s
drug dealing would probably be found in the shipping container in the backyard of the Jefferson property. The question is whether it also permitted a magistrate to conclude
that evidence of Blalack’s drug dealing would probably be
found in the house on the Jefferson property. “[P]robable
cause exists only if the affidavit sets forth facts that create
a nexus between the place to be searched and the objects to
be found.” Webber, 

. Here, the affidavit had
to establish probable cause to believe both (1) that there was
a connection between the owner or occupant of the home and
the suspected drug activity, and (2) that evidence of that
drug activity would be found in the house. 

 (describing
the “test” articulated by the Supreme Court in Goodman,

, to determinate whether an affidavit established probable cause to search a defendant’s home for evidence of drug activity).

        We readily conclude that Miller’s affidavit established probable cause to believe that one of the owners or
occupants of the house—Blalack—was connected with
drug-dealing activity. We agree with defendant, however,
that the affidavit did not establish probable cause to believe
that evidence of Blalack’s drug-dealing activity would be
found in the house.

         We have expressly rejected a blanket rule that, “if
there is probable cause to suspect that a person has committed a crime, an officer need only cite his or her training
and experience to establish probable cause to believe that
evidence of the crime will be found at the person’s home.”
Webber, 

; see also, e.g., State v. Miller, 

, 

 (2013) (concluding that affidavit did not establish probable cause to search the defendant’s home for evidence of drug dealing, where, on three
recent occasions, the defendant had driven directly from
his residence to meet someone to sell a small amount of
methamphetamine from his vehicle); Wilson, 

 (concluding that affidavit did not establish probable
cause to search the defendant’s home for evidence of drug
dealing, after he sold drugs to someone at a location other
234                                                        State v. Nelson

than his home, because there was insufficient evidence to
create a nexus between his drug dealing and his home, notwithstanding the affiant’s recitation of his “training and
experience with people who traffic in drugs” and attestation “that such individuals usually have hidden ‘on their
property, person, or in their vehicles’ evidence of their drug
dealing”).
         Rather, whether probable cause exists to search a
specific place for evidence of drug dealing depends on the
facts of the particular case, as described in the warrant
affidavit. Webber, 

 (recognizing that a
“nuanced, case-by-case assessment” is required); see also
Wilson, 

 (“[T]he weight to be given to [training and experience] representations depends on the totality
of the facts contained in the affidavit[.]”). Here, in keeping
with the case law, the state does not argue that Miller’s generalized attestations based on training and experience were
enough to establish the necessary nexus between Blalack’s
suspected drug dealing and the house on the Jefferson
property.3
         As for the affidavit more generally, Miller’s affidavit establishes the precise location where Blalack stores his
drugs and cash and conducts drug transactions: the shipping container located in the backyard of the Jefferson property. Nothing in Miller’s affidavit allows an inference that
Blalack is keeping drugs or related evidence in any location
other than the shipping container. Cf. Miller, 

 (holding that facts in affidavit were insufficient to support a warrant to search the defendant’s house for evidence
of drug dealing, where the defendant was selling drugs from
his vehicle, and the affiant’s general averments about drug
dealers were insufficient to establish that, “where a person
is using a vehicle to engage in drug transactions, evidence
of possession, manufacturing, or distribution is likely to be
located at his residence” (emphasis in original)).
         The state makes essentially two arguments in favor
of a contrary conclusion, neither of which we find persuasive.
    3
      We refer to the state’s arguments in its answering brief on appeal. In the
trial court, the prosecutor relied more heavily on Miller’s training and experience, but the trial court appears to have largely discounted those arguments.
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First, the state points to facts in Miller’s affidavit that arguably allow an inference that some of Blalack’s customers
called or texted him on his cell phone to arrange to come
over to purchase drugs. From there, the state argues that
a “commonsense reading of the affidavit suggests that
Blalack kept the phone on his person, which was, more often
than not, inside the residence he shared with defendant.”
Even assuming that Blalack used his cell phone to conduct drug-dealing activity, we flatly reject the notion that,
whenever probable cause exists to believe that a person is
engaged in drug dealing and uses a cell phone in connection
with that activity, it follows that probable cause exists to
search that person’s home for any evidence of drug dealing,
because it is common for people to keep their cell phones on
their persons, including when they are at home. A suspected
drug dealer’s use of a cell phone is not enough, in and of
itself, to obtain a warrant to search his or her home for any
and all evidence of drug dealing.

         The state’s other argument is that it is reasonable
to infer from the facts in the affidavit that Blalack sold
methamphetamine “primarily” from the shipping container
and conducted “larger sales” from the shipping container
but that it is “more likely than not that he also conducted
smaller transactions like Konrad’s inside his residence.”
The difficulty with that argument is that it finds no support
in Miller’s affidavit.

         Notwithstanding Miller’s ambiguous use of the
term “residence”—sometimes using it to refer to the entire
Jefferson property—it is readily apparent from a commonsense reading of Miller’s affidavit as a whole that the
only drug sales known to law enforcement occurred in the
shipping container. Both informants who had purchased
drugs directly from Blalack described the transactions as
occurring in the shipping container. The unidentified informant expressly stated that the most recent transaction had
occurred in the shipping container, and he or she said nothing
to suggest that the prior smaller transactions had occurred
in a different location. As for Konrad, she expressly stated
that the small transaction on November 3 had occurred in
the shipping container, and the only reasonable inference
236                                            State v. Nelson

from her other statements—including that Blalack kept the
methamphetamine on a shelf in the shipping container, that
he had weighed it in front of her in the past, and that defendant stayed in the house and would only “come out” to smoke
with them once the transaction was complete—is that all of
her transactions with Blalack occurred in the shipping container. There are simply no facts in the affidavit that would
allow an inference that Blalack conducted any drug-dealing
activity in the house.

         Finally, although the state defends it only indirectly,
we briefly address the trial court’s own reasoning for its ruling. The trial court appears to have read Miller’s affidavit
as allowing an inference that Blalack would meet customers
at the house and then walk with them to the shipping container, as well as an inference that, on November 3, Blalack
came out of the house with a baggie of methamphetamine
in his pocket and then walked to the shipping container
with Blalack to conduct the transaction. Even assuming
arguendo that such facts would establish probable cause to
search the house, we are unable to reconcile the trial court’s
reading of the affidavit—a reading that was urged by the
prosecutor—with the actual content of Miller’s affidavit,
which is controlling. See State v. Chamu-Hernandez, 

, 

 (2009) (“Our review is based on
the facts before the issuing court. Thus, we grant no deference to the trial court’s findings or conclusions, but we allow
all inferences that the issuing court may have fairly drawn
from the facts in the affidavit when that affidavit is read
in a common-sense, nontechnical, and realistic fashion.”
(Emphases in original; internal citation omitted.)). Viewing
the affidavit as a whole and in a commonsense manner, we
conclude that those inferences cannot be fairly drawn from
the facts stated in the affidavit.

         In sum, based on Miller’s affidavit, the only evidence
was that Blalack was dealing methamphetamine out of the
shipping container in the backyard of the Jefferson property, including storing his drugs and cash there. Nothing
in the affidavit established a probability that there would
be evidence of Blalack’s drug-dealing activity in the house
that he shared with his parents and defendant or, more
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specifically, the bedroom that he shared with defendant.4
This is not a doubtful or marginal case. See Henderson, 

 (“While adhering to the probable cause requirement, we resolve doubtful or marginal cases in favor of the
preference for warrants.”). Because the affidavit was insufficient to support authorizing a search of the house, the trial
court erred in denying defendant’s motion to suppress the
evidence seized from her bedroom.
           Reversed and remanded.




    4
      Of course, on different facts, it might be reasonable to infer that a person’s
drug-dealing activity extended to the entire property. See, e.g., State v. Marsing,

, 

 (2011) (holding that facts in affidavit were
sufficient to establish that an informant had purchased drugs from the defendant at his house at a particular address); State v. Chase, 

,

 (2008) (stating that, “[g]enerally, a building’s proximity to the home
of a person who is suspected of possession of controlled substances establishes
the requisite nexus” but that, “when a building is owned or occupied by persons
other than those suspected of criminal activity, something more than mere proximity is required,” and holding that probable cause existed to support a warrant
where, among other things, at least one drug sale had occurred inside the defendant’s house, even though most of the sales were conducted from a trailer on the
property).