State v. MARSING
260 P.3d 739
Or. Ct. App.2011Background
- Detective Adams prepared an affidavit to support a search warrant for 130 Orr Drive and nearby premises for evidence of possession and delivery of marijuana.
- Affidavit relied on a confidential reliable informant (CRI), prior controlled buys, and Adams's training and experience about drug activity.
- The CRI purchased marijuana from the defendant at or near the Orr Drive residence, and described seeing drugs, scales, and discussing future purchases.
- The warrant sought to search the residence, garage, outbuildings, vehicles, and defendant’s person for evidence of possession and delivery of marijuana; the magistrate issued the warrant.
- Seizure at execution yielded 17 grams of marijuana, packaging materials, and a digital scale; defendant moved to suppress, claiming insufficient probable cause.
- Trial court suppressed, concluding the affidavit failed to establish probable cause that evidence would be found at the Orr Drive residence; the State appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the magistrate could find probable cause to search for marijuana at Orr Drive | Marsing contends past purchases were not linked to Orr Drive; insufficient for probable cause. | Marsing argues alleged past transactions are stale and not tied to the residence to justify search. | Yes; probable cause established; informant history plus recent and ongoing drug activity supported search. |
| Whether stale information can be refreshed by more current evidence to support a warrant | Stale past purchases cannot justify current search absent linked ongoing activity. | Recent similar conduct at the residence refreshes the information and supports probable cause. | Stale information can be refreshed by current, similar conduct; here the affidavit described past, recent, and likely drug dealing at 130 Orr Drive. |
| Whether the affidavit sufficiently connected the past purchases to the 130 Orr Drive residence | Past purchases at a general notion of ‘defendant’s residence’ insufficient without linking to Orr Drive residence. | Affidavit consistently identifies the residence as Orr Drive and uses repeated references to that location; inference ok. | The magistrate could infer the past purchase occurred at 130 Orr Drive; that supports probable cause to search for drugs and evidence of distribution. |
Key Cases Cited
- State v. Apolo, 126 Or.App. 652 (1994) (probable cause standard; place-to-search connection)
- State v. Henderson, 341 Or. 219 (2006) (deference to magistrate in probable cause; warrants favored)
- State v. Wilson, 178 Or.App. 163 (2001) (commonsense evaluation of facts for probable cause)
- State v. Goodman, 328 Or. 318 (1999) (reasonableness and inference in probable cause review)
- State v. Pelster/Boyer, 172 Or.App. 596 (2001) (defer to issuing magistrate; probable cause review)
- State v. Keerins, 197 Or.App. 428 (2005) (refreshing stale information with newer evidence)
- State v. Scheer, 49 Or.App. 937 (1980) (insufficient specificity when only a vague quantity seen)