State v. Lee

                                        191

         Argued and submitted June 15, 2021, affirmed April 20, 2022


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   AARON CHRISTOPHER LEE,
                       Defendant-Appellant.
                    Linn County Circuit Court
                       18CR62116; A171927
                                   

     In this criminal appeal, defendant contests his conviction for felon in possession of a firearm. Defendant argues that the trial court erred by denying his
motion to suppress evidence obtained under a search warrant. At trial and on
appeal, defendant contends that the Oregon Constitution prohibits the use of
anticipatory search warrants. Held: Anticipatory search warrants require, like
regular search warrants, that at the time of issuance it is probable that evidence
will be found when the warrant is executed. Anticipatory warrants differ only in
that they contain some factual condition that must occur prior to execution of the
warrant. Neither the text nor the historical context of Article I, section 9, of the
Oregon Constitution prohibit the use of anticipatory search warrants. Provided
that anticipatory search warrants must adhere to all requirements applicable to
all search warrants, including particularity, specificity, and lack of staleness, the
use of anticipatory search warrants does not contravene case law. In this case,
the affidavit supporting the search warrant provided probable cause that the
triggering condition would occur and that evidence would probably be found upon
execution of the warrant.
    Affirmed.



    David E. Delsman, Judge.
   Erik Blumenthal, 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.
   Leigh A. Salmon, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Mooney, Presiding Judge, and Kamins, Judge, and
Pagán, Judge.*
______________
   * Kamins, J., vice DeVore, S. J.; Pagán, J., vice DeHoog, J. pro tempore.
192                            State v. Lee

  KAMINS, J.
  Affirmed.
  Mooney, P. J., dissenting.
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        KAMINS, J.
         In this criminal appeal, defendant contests the
trial court’s denial of his motion to suppress, which predicated his guilty plea to felon in possession of a firearm,
ORS 166.270(1). On appeal, defendant reiterates his argument that Article I, section 9, of the Oregon Constitution
prohibits the use of “anticipatory” search warrants—that is,
where probable cause is based on the fulfillment of certain
conditions to happen after the issuance, but before execution, of the warrant. Because we conclude that such warrants are not categorically impermissible under the Oregon
Constitution and that the evidence in the warrant affidavit
established probable cause to search the home, we affirm.
                    I. BACKGROUND
         In early December 2016, Albany Police Detective
Davis obtained information about suspected drug distribution from an informant, Controlled Buy Informant (CBI),
who sought leniency on a pending criminal matter. The
CBI identified an Albany man, Alleged Drug Dealer (ADD),
from a DMV photo and explained that he had purchased
heroin from ADD at ADD’s house twice a week for the past
four months. The CBI said that he had purchased heroin in
quarter-ounce increments for $325, and he agreed to do a
controlled buy from ADD.
        Another confidential informant who had previously
provided accurate information to the police regarding drug
distribution identified ADD as a “major heroin dealer” in the
area. Other informants had also referenced ADD by name
as a person from whom heroin could be purchased and had
provided an address consistent with the one provided by the
CBI as where he had purchased heroin from ADD.
         At that address, Davis located a truck registered to
ADD. From a business advertisement on the truck, Davis
obtained a phone number that had been discovered during
searches of three cellular telephones associated with people
who had been arrested for heroin offenses. Davis also found
that, as a victim, ADD had provided the same phone number to Albany police in connection with a report of menacing
in 2015.
194                                                         State v. Lee

         Using that information and his training and experience during 22 years in law enforcement, Davis obtained a
search warrant for the Albany house identified by the CBI.
The warrant included a condition—that the CBI would complete a purchase with police surveillance—to corroborate
the validity of the information from the multiple informants,
two of whom sought leniency in other matters. The warrant
provided several requirements to ensure that the condition
was met:
      “[The CBI] is searched and found not to possess any
   money other than narcotics investigative buy monies furnished by the Albany Police Department.
      “[The CBI] is continuously surveilled to go directly to
   [the subject residence] by law enforcement officers.
      “Surveillance on [the subject residence] is constant until
   [the CBI] emerges from [the subject residence] and is taken
   back into custody by law enforcement officers.
       “[The CBI] is searched by law enforcement officers and
   found in possession of field tested presumptive positive
   heroin, and found to no longer be in possession of narcotics investigative buy monies previously furnished by the
   Albany Police Department.”
         The CBI completed the controlled buy under the
specified requirements. Police executed the search warrant and found defendant at the house. Several other people
there identified defendant as a party to the drug deal. Police
searched defendant’s backpack and found methamphetamine and a firearm.1 Defendant acknowledged that he was
at the residence when the drug deal happened but claimed
that he was in the garage and had nothing to do with the
sale.
         Before trial, defendant moved to suppress the evidence seized from his backpack. He argued that “anticipatory warrants”—warrants containing a condition prior to
their ability to be executed—are prohibited by the provision
of Article I, section 9, that “no warrant shall issue but upon
probable cause.” In defendant’s view, that clause requires

   1
     The record does not indicate that defendant contested the search of his
backpack on any basis other than the validity of the search warrant.
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that probable cause exist at the time the warrant is issued,
not upon the occurrence of a set of conditions.
            II. ANTICIPATORY WARRANTS
         In Oregon, a search warrant is issued upon a showing before a “neutral and detached magistrate” that there
is reason to believe that the facts stated in the affidavit are
true and that those facts are sufficient to establish probable
cause to justify the search requested. State v. Castilleja, 

, 

, adh’d to on recons, 

,

 (2008). Probable cause exists when the facts in
the affidavit would “lead a reasonable person to believe that
seizable things will probably be found in the location to be
searched.” 

         Anticipatory warrants are similar in that they
require probable cause that evidence will be found at the
specified location at the time of the warrant’s execution, but
different in that they also contain a condition (such as the
arrival of a package) that must occur before the warrant
can be executed—meaning that “at some future time (but
not presently) certain evidence of crime will be located at
a specific place.” United States v. Grubbs, 

,

, 

 (2006) (internal quotation
marks omitted). Like ordinary warrants, anticipatory warrants “require the magistrate to determine (1) that it is now
probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant
is executed.” 

 (emphasis in original). Anticipatory
warrants in the context of drug cases are particularly common. See United States v. Perkins, 

 (6th Cir
2018) (“Anticipatory warrants triggered by controlled deliveries are nothing new.”).
         The United States Supreme Court unanimously
determined that anticipatory warrants are not categorically
unconstitutional under the Fourth Amendment’s provision
that “no Warrant shall issue, but upon probable cause.”
Grubbs, 

. Because all warrants focus on whether
evidence will be found when the search is conducted, the
Court reasoned that “all warrants are, in a sense anticipatory.” 

 It is therefore immaterial that the contraband
196                                                           State v. Lee

to be seized under the warrant was not at the location to
be searched when the warrant was issued, so long as there
was probable cause to believe that the contraband would be
there when the warrant was executed. 

. The Court
also noted an important limit on anticipatory warrants: not
only must the affidavit set forth facts that establish probability that the contraband will be found if the triggering
event occurs, but also establish probability that the triggering event will occur. 

. Both facets are essential.

         Most states have also determined that anticipatory
warrants are permissible, either by following the federal
standard or concluding so under their state’s constitution.
See generally Pennsylvania v. Glass, 562 Pa 187, 192 n 4, 

, 658 n 4 (2000) (recounting survey of federal and
state approaches to anticipatory warrants).2 Several state
courts have also noted (1) a state law preference for searches
made pursuant to a warrant, and (2) that a properly drafted
anticipatory search warrant advances that preference by
providing “independent pre-search review by a neutral magistrate, while at the same time providing police with the
ability to respond quickly to ongoing criminality.” Id. at 194,

; Alvidres v. Superior Court, 12 Cal App 3d
575, 581, 90 Cal Rptr 682, 686 (Cal Ct App 1970) (“We believe
that achievement of the goals which our high court had in
mind in adopting the exclusionary evidence rule is best
attained by permitting officers to seek warrants in advance
when they can clearly demonstrate that their right to search
will exist within a reasonable time in the future.”). With
that background in mind, we turn to Oregon’s constitution.
          III.    ARTICLE I, SECTION 9, ANALYSIS
         As framed by defendant, the question reduces to
whether anticipatory warrants as a concept are categorically
unconstitutional under Oregon’s constitution. To answer that
question

    2
      The Pennsylvania Supreme Court also observed that the majority of states
have approved anticipatory warrants and that the overwhelming tendency for
states that have rejected anticipatory warrants is on state statutory grounds.
Glass, 562 Pa at 194 n 4, 

 n 4.
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     “we examine the text [of the constitutional provision], in
     its historical context and in light of relevant case law, to
     determine the meaning of the provision at issue most likely
     understood by those who adopted it, with the ultimate
     objective of identifying relevant underlying principles that
     may inform our application of the constitutional text to
     modern circumstances.”
Couey v. Atkins, 

, 

 (2015)
(internal quotation marks omitted). In the specific case
of Article I, section 9, the absence of a meaningful historical record surrounding the adoption of that measure has
increased the weight that the text itself and the case law
interpreting that text must carry. See State v. Hemenway,

, 

, vac’d, 

, 

 (2013) (Landau, J., concurring).3
A.    Constitutional Text
        Article I, section 9, of the Oregon Constitution
provides:
     “No law shall violate the right of the people to be secure in
     their persons, houses, papers, and effects, against unreasonable search, or seizure; and no 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.”
        Defendant contends that the specific language “no
warrant shall issue but upon probable cause” puts a strict
temporal limit on courts—that is, that, unless and until
probable cause exists at the time based only on historical
occurrences, the court may not issue a warrant.
         The key terms that help define the temporal relationship in that phrase are “shall,” “issue,” and “upon.” To
provide insight as to what the drafters might have meant by
using certain words, we consider, among other things, contemporaneous dictionaries. See State v. Davis, 

, 

 (2011) (citing an 1828 general dictionary
and an 1839 legal dictionary in the analysis of Article I,
    3
      In addition to the concurring opinion in Hemenway, former Oregon Supreme
Court Justice Landau explored the history of the adoption of and early case law
interpreting Article I, section 9. See generally Jack L. Landau, The Search for the
Meaning of Oregon’s Search and Seizure Clause, 87 Or L Rev 819, 836-40 (2008).
198                                                          State v. Lee

section 12). Time appropriate definitions of the word “shall”
include “to be hereafter able to, to be hereafter determined
to, to be hereafter permitted to,” 4 or, “[i]n the present tense,
shall, before a verb in the infinitive, forms the future tense.”5
In context of Article I, section 9, both uses of the word “shall”
appear to carry the connotation of the future tense, meaning no warrant may be permitted to issue but upon probable
cause.
          “Issue,” as a verb, is defined by one source as meaning “[t]o go out, to pass out, to proceed; to send forth or emit;
to spring from, to flow from.” Charles Richardson, 1 A New
Dictionary of the English Language 1164 (Phila, EH Butler
& Co 1846); see also Noah Webster, 1 American Dictionary
of the English Language (unpaginated) (NYC, S Converse
1828) (defining “issue” as “[t]o send out; to put into circulation”). In the context of a search warrant, “issue” is synonymous with the act of sending forth something with the
authority of the institution so doing.
         “Upon,” as a preposition, means “[o]n, over, on the
surface, on the top, in a state of view, in immediate consequence of; with respect to, in consideration of; with reliance
on, on supposition of; by, near to; with exactness, according
to.” John Ash, 2 New and Complete Dictionary (unpaginated)
(London, Vernor & Hood 1795); see also Webster, 2 American
Dictionary (defining “upon” as a preposition meaning “[i]n
a state of resting or dependence; as, upon this condition, he
will contract with you upon these terms. Upon our repentance we hope to be forgiven.”). Thus, the word serves as a
preposition that introduces the conditions (probable cause,
description of places to be searched, etc.) required for the
action (issuing a warrant) to occur.
         In light of those historical definitions, “no warrant
shall issue but upon probable cause” likely means that a
court is only permitted (shall) to send out with authority of
the court (issue) a warrant to search based on the condition
of (upon) probable cause. That definition does not answer the
    4
      John Ash, 2 New and Complete Dictionary of the English Language (unpaginated) (London, Vernor & Hood 1795).
    5
      Noah Webster, 2 American Dictionary of the English Language (unpaginated) (NYC, S Converse 1828).
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question whether the facts supporting probable cause can
include a future event for which there is also probable cause.
        We note that the defendant in Grubbs presented
an almost identical textual argument that the Fourth
Amendment requires that “no Warrants shall issue, but
upon probable cause” and that, therefore, anticipatory warrants were unconstitutional. Grubbs, 

. The
Court rejected that argument without in-depth textual
analysis, instead pointing out that the very nature of a probable cause determination for a search warrant was forward
looking and based on the probability that the specified items
would be found when the search was executed. 

.6
B.    Historical Context
         Although it has been established that the origin
of Article I, section 9, can be traced directly to the Fourth
Amendment, State v. Mansor, 

, 

(2018), the adoption of the Oregon provision appears to have
occurred with little recorded discussion over the intended
meaning of the words selected. Jack L. Landau, The Search
for the Meaning of Oregon’s Search and Seizure Clause, 87 Or
L Rev 819, 836 (2008). The Fourth Amendment, as arising
from previous state constitutional documents, was likely a
“reaction[ ] to abusive ‘general warrants’ of the English colonial government, which gave government agents ‘unlimited authority to search and seize.’ ” Mansor, 

.
Given that anticipatory warrants must adhere to the same
particularity requirements, the history does not establish
that anticipatory warrants violate Article I, section 9.
C. Case Law Interpreting the Warrant Requirement of
   Article I, Section 9
         Because no prohibition against anticipatory warrants arises from the text or historical context of Article I,
section 9, we consider anticipatory warrants in light of the
     6
       Defendant argues that the analysis in Grubbs is inapplicable because
Article I, section 9, is more protective of “personal rights,” but he does not indicate how the text, context, or history of the language should be subject to a different analysis in the context of anticipatory warrants. Indeed, the “vast majority”
of states with rights-based constitutional models have upheld anticipatory warrants under those constitutions. Hawaii v. Curtis, 139 Haw 486, 497 n 13, 

, 727 n 13 (2017) (collecting cases).
200                                              State v. Lee

requirements stemming from the case law. In addition to
the requirement of probable cause, Oregon courts police the
reasonableness of warrants through the principles of particularity, specificity, and staleness.
      1.   Particularity and specificity
         To prevent intrusion into privacy interests other
than those supported by probable cause and approved by the
reviewing magistrate, search warrants must describe with
particularity and specificity the premises to be searched
and the items to be seized. See Mansor, 

 (to
avoid unreasonable intrusion into protected interests, warrant must be sufficiently specific to allow officers to ascertain items to be searched with reasonable certainty); State v.
Reid, 

, 

 (1994) (Oregon Constitution
requires that a warrant state, or describe with particularity, the location and designation of places to be searched,
and may not authorize broader search than supported by
affidavit); State v. Ingram, 

, 

(1992) (explaining that warrants must be specific enough to
remove police discretion in choosing which things to search).
Those limitations further two important principles. First,
those requirements circumscribe a search or seizure to only
those things for which a showing of probable cause has been
made. State v. Farrar, 

, 

, cert
den, 

 (1990) (requirement designed to “narrow the
scope of the search to those premises for which a magistrate
has found probable cause to authorize to search”). Second,
those requirements also work to shift the determination of
what to search from law enforcement to the judicial officer.
See State v. Blackburn/Barber, 

, 

(1973) (a warrant must identify with reasonable certainty
what to search). By narrowing the scope of what, where,
and when to search, those requirements protect against the
abuses of privacy interests posed by unlimited general warrants. Mansor, 

; Blackburn/Barber, 

.
      2. Staleness
         Of particular importance to our analysis of anticipatory warrants is the concept of staleness. “The purpose
of [this] analysis is to determine whether, given the time
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between the event described and the issuance of the warrant, there is a reasonable inference that the evidence will
be where the affidavit suggests.” State v. Ulizzi, 

, 

 (2011), rev den, 

 (2012).
Inherent in any probable cause determination is the reliance on historical occurrences being probative of future conditions. By their very nature and the incontrovertible flow
of time, a search warrant authorizes a future search, not a
search of the past. There is invariably a lag between the perception of an occurrence, representations about those perceptions by the police, issuance of the warrant, and finally,
execution of the search. For that reason, Oregon courts have
suppressed the results of searches when too much time has
elapsed between the factual occurrences and affidavit attestation. See State v. Scheidemann, 

, 

 (1968) (concluding that the time between the last sale of
heroin recited in the affidavit and the officer’s attestation to
the affidavit did not provide a strong basis for believing that
the heroin was still at the premises); State v. Marmon, 

, 

 (2020) (“[I]nformation related
to readily consumable drugs like heroin or marijuana is particularly prone to staleness.”). The very concept of staleness
recognizes the immutable tendency that as time progresses
further from the occurrences perceived, the less likely predictions based on those perceptions are to be true. To that
extent, the United States Supreme Court’s observation that
“all warrants are, in a sense, anticipatory” is particularly
apt. Grubbs, 

.
         The magistrate reviewing any warrant—anticipatory or otherwise—must anticipate, based on the observations and averments, whether it is more likely than not that
seizable things will be found where and when the search is
executed. That anticipation is based on a reasoned assessment of the reliability, specificity, recency, numerosity, and
logical force of the observations and averments. See Farrar,

 (discussing reliability and credibility factors of named informants); State v. Spicer, 

,

 (1969) (several purchases of marijuana over a
long period of time from the same location increased likelihood marijuana would be found in that location). As with
the staleness analysis, the remainder of those assessments
202                                               State v. Lee

all serve the determination of how likely the assertions
contained in the affidavit are to lead to evidence of a crime
located in the place to be searched. That is, an increase in
the level of any of those categories tends to increase the
probability that a search will yield the expected evidence.
Each of those assessments serves to reduce the role that
speculation plays in the determination of what, where, and
when to search. See State v. Kreis, 

, 

 (2019) (explaining in a different context that probable
cause is more than speculation); State v. Villagran, 

, 

 (1983) (discussing role that logical
conclusions, supported by facts and circumstances recited in
affidavit, play in probable cause determinations).
         By extension of that logic, anticipatory warrants,
when properly drafted, reduce the role of speculation by
increasing the probability that contraband or evidence
will be found, particularly in the common use of such warrants in controlled delivery or controlled buy situations.
United States v. Ricciardelli, 998 F2d 8, 11 (1st Cir 1993);
Wayne R. LaFave, 2 Search & Seizure § 3.7(c) (6th ed 2021)
(“[I]t may fairly be said that as a general proposition the
facts put forward to justify issuance of an anticipatory warrant are more likely to establish that probable cause will
exist at the time of the search than the typical warrant
based solely upon the known prior location of the items to be
seized at the place to be searched.”).
         The staleness analysis provides one additional
insight. Courts must consider information about several
forward-looking factors to determine whether the passage
of time between perception of the event, the affidavit, and
the proposed search renders a probable cause determination
unreasonable. Ulizzi, 

 (highlighting
factors of length of time, perishability or durability of item,
mobility of item, inculpatory character of item, and propensity of offender to retain possession of item). To be sure,
each of those factors is informed by history, but their logical
utility in supporting a warrant is related to the contingent
future events. The nature of each of those factors requires
an assessment of how the potential occurrences taking place
after the officer’s perception of events impacts the probability that the seizable thing will be found when the search
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is conducted. See, e.g., State v. Duarte/Knull-Dunagan, 

, 

, rev den, 

 (2010)
(explaining information in affidavit was not stale, despite
three-month gap, because marijuana grow equipment likely
used for more than one crop). Put another way, magistrates
are not limited to considering only historical occurrences
in making the probable cause determination; indeed, they
typically do consider how future likelihoods bear on present
probable cause.
    3. General preference for searches made under warrant
         Finally, Oregon search and seizure case law reflects
a strong preference for searches made pursuant to a warrant. Indeed, “warrantless entries and searches of premises
are per se unreasonable unless falling within one of the few
specifically established and well-delineated exceptions to
the warrant requirement.” State v. Davis, 

,

 (1983) (internal quotation marks omitted); see
State v. Banks, 

, 

 (2019) (citing
Davis for categorical treatment of warrantless searches);
State v. Sunderman, 

, 

 (2020)
(same); see also State v. McCarthy, 

, 

 (2021) (eliminating the automobile exception to the
warrant requirement). Anticipatory warrants advance the
policy favoring warranted searches by encouraging police to
obtain review by a neutral and detached magistrate at an
early stage of the process.
         In sum, anticipatory warrants are limited by the
same probable cause, particularity, specificity, and staleness requirements that regulate traditional warrants. The
text of and historical context for Article I, section 9, does not
foreclose the concept or use of anticipatory warrants, and
the principles derived from case law in many ways support
their use. We conclude that, when adhering to the strictures
applicable to all warrants, anticipatory warrants are permissible under Article I, section 9.
D. Application
        Having concluded that anticipatory warrants are
not categorically prohibited by the Oregon Constitution,
we consider whether the warrant in this case supports a
204                                               State v. Lee

finding of probable cause. We review the question whether a
warrant affidavit establishes probable cause for legal error.
State v. Webber, 

, 

 (2016).
As 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, 

, 

(2018). Our ultimate question is whether, based on the facts
contained in the affidavit, a neutral and detached magistrate could conclude “(1) that there is reason to believe that
the facts stated are true; and (2) that the facts and circumstances disclosed by the affidavit are sufficient to establish
probable cause to justify the search requested.” Castilleja,
345 Or at 264.

          The triggering condition in this warrant—that the
CBI engage in a controlled buy under specified conditions
prior to the execution of the warrant—was narrowly drawn.
See, e.g., California v. Sousa, 18 Cal App 4th 549, 560, 22 Cal
Rptr 2d 264, 272 (Cal Ct App 1993) (stating that, when affidavit supporting warrant “sets out in detail the anticipated
events upon which execution is contingent” and magistrate
determines right to search will exist after those events have
occurred, the probable cause determination is not improperly delegated to officers). The occurrence of the controlled
buy served to corroborate the information provided by several different informants as well as increase the likelihood
that the evidence would be there at the time the search
was conducted. Seeking a warrant prior to the controlled
buy involved a neutral magistrate earlier in the process to
review the specifics of the planned transaction, an outcome
we typically encourage. See, e.g., State v. Collicott, 

, 

, rev den, 

 (1982) (striking
the fruits of an exigent search that occurred after a controlled transaction because police should have gotten a warrant “before the planned meeting”).

         Defendant also asserts that the affidavit did not
set forth sufficient information to establish probable cause
that the triggering condition—the controlled buy—would
produce evidence. Defendant argues that federal cases that
support the use of controlled buys in anticipatory warrants
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are based on either the good-faith exception or on previouslycompleted controlled buys, so that an incomplete initial controlled buy could not be the basis for an anticipatory warrant in this case.

         We conclude that the affidavit contained sufficient
information to establish probable cause that the controlled
buy would return evidence. According to defendant, none of
the averments that either the CBI or the other informants
had made were corroborated prior to issuing the warrant or
completing the controlled buy. However, extrinsic corroboration is only one of the tools a court may use to assess the
credibility and reliability of factual statements asserted in a
warrant affidavit. Castilleja, 345 Or at 267 (explaining that
informant credibility may be assessed from facts and inferences contained within affidavit). Credibility and veracity
exist on a scale depending on factors such as whether the
informant was involved in the crime, was named in the affidavit, stood to gain from the information, or was merely a
witness or victim. Id.

         In this case, the fact that the CBI was accused of
another crime and stood to gain from providing valuable
information weighs against his credibility. However, the
CBI was identified by name in the affidavit and admitted
to his separate criminal activities, both of which tend to
enhance credibility. Moreover, the CBI’s information was
far more than a simple statement that ADD was selling out
of the home, instead the CBI explained that he had purchased heroin from ADD “about twice a week for the past
four months” and provided information about the quantity
and cost of the purchases. Additionally, the CBI’s accusation
was not the only information in the record that tended to
support probable cause; there was information from other
informants about ADD dealing heroin in the same specific
area of Albany, phone records from drug sales that matched
the number ADD had previously provided to police, and real
estate records that matched the address to ADD. In effect,
police obtained evidence from at least two other unrelated
sources about who (ADD), what (heroin dealing), and where
(at a specific location in Albany), that tended to support the
veracity of the CBI’s information.
206                                                State v. Lee

         In consideration of all of the information provided
in the affidavit, there were sufficient indicia of credibility of
the informants and the reliability of information provided to
conclude that there was probable cause that the controlled
buy would yield contraband or evidence. Subject to the triggering condition in the affidavit and warrant, there was
probable cause to believe that a search of ADD’s home would
yield contraband or evidence.
         Affirmed.
         MOONEY, P. J., dissenting.
          Anticipatory warrants issue at a point in time when
the requesting officer does not have probable cause to search.
If the officer had probable cause, there would be no need
for that officer to ask for an anticipatory warrant. When a
judge issues a regular search warrant, he or she first makes
a probable cause determination based on the supporting
affidavit submitted by the requesting officer. When a judge
signs and issues an anticipatory warrant, that judge agrees
to forgo the probable cause analysis at the point where it
would ordinarily be done. Rather than waiting to issue the
warrant until after the occurrence of events sufficient to
support probable cause, the judge who issues an anticipatory warrant effectively delegates that responsibility to the
officer in the field by including a condition that will, once it
occurs, permit the officer to execute the warrant. Instead
of a detached magistrate weighing all of the circumstances
then present, an officer involved in the investigation need
only answer a single question with a yes or no—did the condition described in the warrant occur? There would be no
need to consider the circumstances surrounding the occurrence of the condition, even when the circumstances turn
out to be different than what had been predicted at the
time the warrant was signed. Probable cause is a complex
legal concept carefully examined and described by countless
appellate courts and legal scholars across the country. And
probable cause cannot easily be reduced to a single question.
        I understand that the United States Supreme
Court has approved anticipatory warrants under the Fourth
Amendment to the United States Constitution. See United
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States v. Grubbs, 

, 

, 

 (2006). And I appreciate that the majority today has
been careful in its attempt to properly cabin its approval
of such warrants under Article I, section 9, of the Oregon
Constitution. But Oregonians have a long history of providing greater protection of certain fundamental rights under
the state constitution than the federal constitution provides.
I do not think we should settle for less here. The process
matters. Accordingly, in this case, I would agree with defendant that the warrant was invalid and, consequently, that
the trial court erred in denying the motion to suppress.
        I respectfully dissent.