State v. Marmon

303 Or.App. 469

463 P.3d 555

STATE of Oregon, Plaintiff-Respondent,

v.Aaron Scott MARMON, Defendant-Appellant.

A166665

Court of Appeals of Oregon.

Argued and submitted August 1, 2019.

April 8, 2020

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.

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 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 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 P.3d 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 P.3d 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 P.3d 514, rev. den. , 347 Or. 43, 217 P.3d 689 (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 P.3d 259, rev. den. , 346 Or. 589, 214 P.3d 821 (2009) ; see also State v. Andersen , 361 Or. 187, 200, 390 P.3d 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 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 P.2d 287 (1990), rev. den. , 311 Or. 427, 812 P.2d 827 (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 P.2d 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, 202 P.3d 259 ("[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 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...