State v. Colgrove ( 2024 )

128 July 31, 2024 No. 527
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
CAROLYNE DEE COLGROVE,
Defendant-Appellant.
Linn County Circuit Court
20CR12369; A177892
Thomas McHill, Judge.
Argued and submitted August 21, 2023.
Emily P. Seltzer, 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.
Timothy A. Sylwester, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Hellman, Judge, and
Armstrong, Senior Judge.
HELLMAN, J.
Reversed and remanded.
Cite as 334 Or App 128 (2024) 129
HELLMAN, J.
Defendant appeals from a judgment of conviction
for possession of methamphetamine, ORS 475.894. Defen-
dant’s conviction was the result of a conditional no contest
plea, which reserved her right to appeal the trial court’s
denial of her motion to suppress evidence obtained during
the warranted search of her apartment and her motion for
reconsideration of that denial. On appeal, defendant raises
two assignments of error. In the first, she argues that the
trial court erred in denying her motion to suppress evi-
dence obtained from the warranted search of her apart-
ment. She asserts that the search warrant was invalid
under ORS 133.565(2), Article I, section 9, of the Oregon
Constitution, and the Fourth Amendment to the United
States Constitution because the supporting affidavit did
not establish a sufficient nexus between any drug activity
and the apartment.1 In the second, she argues that the trial
court erred when it denied her motion for reconsideration of
the denial of her motion to suppress. We conclude that the
search warrant affidavit did not establish probable cause to
search the apartment, and, as a result, the trial court erred
in denying defendant’s motion to suppress. We therefore
reverse and remand. In light of that disposition, we do not
reach defendant’s second assignment of error.
Police were investigating Phillips, defendant’s
cotenant, for drug activities. As part of that investigation,
they sought a warrant to search the apartment where
defendant and Phillips lived. The affidavit reflected that,
prior to seeking the residential search warrant, police had
observed Phillips exiting the apartment and selling con-
trolled substances to a confidential reliable informant (CRI)
in three controlled buys at undisclosed locations outside
1
ORS 133.565(2)(b) and (c) provide that “[t]he warrant shall state, or describe
with particularity * * * [t]he name of the person to be searched, or the location and
designation of the premises or places to be searched,” and “[t]he things constitut-
ing the object of the search and authorized to be seized.” Similarly, Article I, sec-
tion 9, provides that “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,” and the Fourth Amendment provides that “no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to
be seized.”
130 State v. Colgrove
the residence. Because the information in the affidavit, or
rather, the lack of it, is dispositive in this case, we discuss
the affidavit in some detail.
After discussing his training and experience,
Detective Posthuma (affiant) explained that during the two
months prior to seeking the search warrant, he had spoken
with a CRI who agreed to purchase drugs from Phillips in
a controlled-buy format. The affiant presented the reasons
for which he considered the CRI to be reliable, as well as the
precautions that police took to ensure that the CRI was not
in possession of controlled substances, money, or weapons
before leaving custody and upon returning to police custody
after the controlled buy. The affiant further recounted that
prior to seeking the search warrant he had verified infor-
mation that the CRI had supplied and reviewed Phillips’s
criminal history, noting that Phillips had prior drug crime
convictions.
The affiant then presented information about
each controlled buy. Of the first controlled buy, the affiant
explained:
“Detective Jered McLain [(McLain)] told me he observed
[Phillips] exit his apartment * * *. Detective Ty Volin told
me he observed [Phillips] meet CRI. [McLain] told me that
he observed [Phillips] break contact with CRI. [McLain]
told me he observed [Phillips] walk back into his apart-
ment * * *.”
The affiant described the second controlled buy as follows:
“[McLain] told me that he observed [Phillips] exit his
apartment * * *. [McLain] told me he observed [Phillips]
enter the driver seat of [a vehicle]. [McLain] told me he
observed [Phillips] start driving the vehicle and exit the
parking lot as the only occupant of the vehicle. I observed
[Phillips] arrive at the pre-arranged meet location and
meet CRI, by arriving at the location. I observed CRI get
into [Phillips’s vehicle]. A short time later I observed CRI
exit. [Phillips] was followed back to his residence by detec-
tives and [McLain] told me he observed [Phillips] go back
into his apartment * * *.”
Finally, the affiant described the third controlled buy as
follows:
Cite as 334 Or App 128 (2024) 131
“[McLain] told me that he observed [Phillips] exit his
apartment * * *. [McLain] told me he observed [Phillips]
enter the driver seat of [the same vehicle Phillips used in
the second controlled buy]. [McLain] told me he observed
[Phillips] start driving the vehicle and exit the parking lot.
I observed [Phillips] arrive at the pre-arranged meet loca-
tion and meet CRI, by arriving at the location. I observed
CRI make contact with [Phillips]. A short time later I
observed CRI exit.
“[Phillips] was followed back to his residence by detec-
tives and Lieutenant Jerry Drum told me he observed
[Phillips] go back into his apartment * * *.”
The affiant additionally said that during surveillance of
“one of the above-mentioned controlled buys,” he watched
Phillips park a different vehicle and get into the vehicle in
which he travelled to the second and third controlled buys.
The affiant explained, “CRI has told me that [Phillips] oper-
ates several different vehicles and travels with his supply of
methamphetamine while he travels in vehicles.”
The magistrate issued a search warrant for the
apartment where Phillips and defendant lived. When police
executed that warrant, they found inculpatory evidence.
Defendant and Phillips were both charged with drug related
offenses.
Defendant moved to suppress the evidence found at
the apartment, arguing that the search warrant affidavit
did not establish probable cause to search the apartment.
Specifically, defendant argued that there was an insufficient
nexus between Phillips’s drug sales and the apartment. The
trial court disagreed and denied defendant’s motion to sup-
press. Defendant thereafter entered a conditional no contest
plea, reserving the right to appeal the denial of her motion
to suppress and motion for reconsideration of that denial.
This appeal followed.
In defendant’s first assignment of error, she argues
that the search warrant affidavit did not provide a sufficient
nexus between the apartment and Phillip’s drug transac-
tions. We review “a challenge to the sufficiency of an affida-
vit supporting a magistrate’s issuance of a warrant” for legal
error. State v. Castilleja, 345 Or 255, 264, 192 P3d 1283, adh’d
132 State v. Colgrove
to on recons, 345 Or 473, 198 P3d 937 (2008). In that review,
we “determin[e] whether, given the uncontroverted facts in
the affidavit and reasonably derived inferences, the issuing
magistrate reasonably could have concluded that the affida-
vit * * * established probable cause to search.” State v. Miller,
254 Or App 514, 516, 295 P3d 158 (2013) (internal quotation
marks omitted); see also Castilleja, 345 Or at 270-71 (explain-
ing that “to uphold the warrant, the reviewing court need
only conclude that the issuing magistrate reasonably could
conclude that the facts alleged, together with the reasonable
inferences that fairly may be drawn from those facts, estab-
lish that seizable things probably will be found at the location
to be searched” (emphasis omitted)). “We view the affidavit
in a commonsense, nontechnical and realistic fashion, with
doubtful cases to be resolved in favor of the magistrate’s deter-
mination of probable cause.” State v. Nelson, 307 Or App 226,
232, 476 P3d 100 (2020) (internal quotation marks omitted).
Because defendant does not challenge the verac-
ity of the facts in the affidavit, our inquiry is limited to
“whether the facts and circumstances disclosed by the affi-
davit * * * are sufficient to establish probable cause to justify
the search requested.” Id. (internal quotation marks omit-
ted). “[A]s relevant here, probable 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.” State v.
Webber, 281 Or App 342, 348, 383 P3d 951 (2016).
We conclude that the facts in the affidavit did not
create a sufficient nexus between the apartment and the
suspected drug activity. The affidavit provided that during
each of the controlled buys, one officer observed Phillips
exiting the apartment, and at some unknown time later, a
different officer observed Phillips meeting up with the CRI
at an undisclosed location to distribute drugs. The affida-
vit did not show that police observed Phillips’s travel path
to the undisclosed locations, nor that police ensured that
Phillips did not stop somewhere prior to meeting the CRI.
In addition, the affiant did not discuss the distance between
the apartment and the undisclosed locations, nor how much
time elapsed between Phillips leaving the apartment and
arriving at those locations.
Cite as 334 Or App 128 (2024) 133
Confronted with a similar set of facts in Miller, we
concluded that an “affidavit [was] insufficient to permit a
magistrate reasonably to conclude that it [was] more likely
than not that the evidence sought in the warrant would be
found at [the] defendant’s residence.” 254 Or App at 528. In
that case, the state charged the defendant with multiple
drug-related offenses after police executed a search war-
rant on his car and his residence and found inculpatory evi-
dence in both. Id. at 519-20. The affidavit in support of the
search warrant recounted three controlled buys. Id. at 517.
The first two controlled buys were not connected to the res-
idence. Id. at 517-18. However, before the third controlled
buy, officers surveilled the defendant’s residence, during
which they watched the defendant leave the residence and
walk directly to his vehicle. Id. at 518. Police then followed
the defendant as he travelled directly to the location of the
controlled buy and made the sale. Id. In concluding that the
affiant had not established a sufficient nexus between the
residence and the suspected drug activity, we explained,
“[A]t most, [the] affidavit established that (1) [the] defen-
dant sold a small amount of methamphetamine to the
[undercover informant] during each of three controlled
drug buys that occurred within two weeks of issuance of
the warrant at an undisclosed location; (2) [the] defendant
lived at the residence * * *; and (3) [the] defendant drove
directly from that residence to the third controlled buy and
returned thereafter.”
Id. at 527. We cited as dispositive that “[t]he drug activity
* * * did not occur at [the] defendant’s residence. Instead,
each of the three controlled buys occurred at an undisclosed
location other than defendant’s residence.” Id. at 528.
Here, like in Miller, “each of the three controlled
buys occurred at an undisclosed location other than defen-
dant’s residence.” Id. More so than Miller, the affidavit in
the present case did not establish that Phillips travelled
directly from the apartment to the any of the controlled
buys. Id. Although an officer observed Phillips leaving the
apartment some undisclosed amount of time prior to all
three buys, the affidavit did not establish what occurred
between Phillips leaving the apartment and arriving at the
three buys. The mere fact that Phillips left the apartment
134 State v. Colgrove
and then sometime later arrived at a controlled buy does not
lead to a reasonable inference that “it [was] more likely than
not that the objects of the search [would] be found” in the
apartment. Nelson, 307 Or App at 232 (internal quotation
marks omitted). Thus, we conclude that the facts in the affi-
davit, alone, did not permit a magistrate to determine that
it was more likely than not that evidence of Phillips’s drug
activity would be found in the apartment.
We further conclude that the affiant’s discussion
of his training and experience did not bridge the gap to
“establish probable cause to justify the search requested.”
Id. (internal quotation marks omitted). We have explained
that “the significance of [an affiant’s] training and experi-
ence * * * depends on the degree to which it was connected
to the affidavit’s objective content and may have assisted the
magistrate’s understanding of that content,” which in turn is
“largely dependent upon the strength of that underlying con-
tent.” Webber, 281 Or App at 352. Here, the affiant’s “training
and experience averments do not contribute the necessary
factual nexus,” because “there is nothing in the affidavit * * *
permitting and supporting a nonspeculative inference” that
evidence of Phillips’s drug offenses would be found in the
apartment. Miller, 254 Or App at 528. Restated, the underly-
ing facts are too lean for the affiant’s general statements of
training and experience to “shore up [the] affidavit’s objec-
tive content.” Webber, 281 Or App at 352 (internal quotation
marks omitted); see also Nelson, 307 Or App at 233 (explain-
ing that Oregon courts 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.”
(Internal quotation marks omitted.)); contra State v. Soto-
Sarabia, 333 Or App 46, 53, ___ P3d ___ (2024) (explaining
that “the objective facts in the affidavit * * * and the connec-
tion between those objective facts and [the affiant’s] training
and experience * * * established probable cause to believe that
evidence of drug activity would be found in defendant’s car”).
In reaching our conclusion, we reject the state’s
argument that under a “commonsense and realistic reading
Cite as 334 Or App 128 (2024) 135
of the affidavit,” the absence of information about the route
and length of travel time between the apartment and the
controlled buys “suggests that Phillips did not make any
significant detours or stops between his apartment and the
meeting place,” thereby allowing the magistrate to reason-
ably infer a nexus between suspected drug activity and the
apartment. That argument turns the warrant requirement
on its head. Warrant affidavits are required to provide infor-
mation to a magistrate so that the magistrate can make an
independent decision about probable cause. ORS 133.545(6)
(stating that 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 the places, or in the possession of the
individuals, to be searched” (emphasis added)). The com-
plete absence of facts does not fulfill that requirement. See
Webber, 281 Or App at 349 (concluding “that the absence of
objective facts connecting that illegal activity to [the] defen-
dant’s home foreclosed the conclusion that the affidavit pro-
vided a sufficient nexus to that location”); see also State v.
Melendy, 49 Or App 441, 444, 619 P2d 952 (1980) (“Probable
cause must be determinable from the facts recited in the
‘four corners’ of the affidavit.”). A magistrate cannot infer
probable cause from an absence of facts, especially when, as
here, there are any number of reasons why the affidavit did
not provide critical information, such as the route Phillips
took or the amount of time it took him to travel between the
apartment and the sites of the controlled buys, and not all of
them are favorable to the police.
Here, the only drug sales known to police occurred
at undisclosed locations away from the residence and, con-
sidering the absence of information about Phillips’s journey
from the apartment to the controlled buys, “[t]here are sim-
ply no facts in the affidavit that would allow an inference
that [Phillips] conducted any drug-dealing activity in the
house.” Nelson, 307 Or App at 236. We conclude that the affi-
davit did not establish probable cause to search the apart-
ment because it did not establish a sufficient nexus between
Phillips’s drug activity and the apartment. See id. (“Viewing
the affidavit as a whole and in a commonsense manner, we
conclude that those inferences cannot be fairly drawn from
136 State v. Colgrove
the facts stated in the affidavit.”); Miller, 254 Or App at 528(“In sum, the affidavit [was] insufficient to permit a magis-
trate reasonably to conclude that it is more likely than not
that the evidence sought in the warrant would be found at
defendant’s residence.”). We therefore conclude that the trial
court erred when it denied defendant’s motion to suppress
evidence obtained during the residential search.
Reversed and remanded.