State v. Van Osdol
417 P.3d 488
Or. Ct. App.2018Background
- Police affidavit described two CRI-supervised controlled buys of heroin at a 3-story residence on Alameda Street (one 30 days prior, one 96 hours prior). The dealers (McGee and Konecny) and the CRI were not residents; defendant was identified as a resident and said to be "at the residence" during the buys.
- Affidavit lacked details about who admitted the CRI or dealers into the house, the amounts or prices of heroin, or any indicia of ongoing trafficking (no large quantities, scales, cash, ledgers, or communications).
- Affiant (Corporal Zundel) relied on his training/experience to assert that traffickers often keep records, cash, weapons, etc., at locations they control, and sought a warrant to search the Alameda house for evidence of delivery of heroin (ORS 475.850) and frequenting a place where controlled substances are used (ORS 167.222).
- Magistrate issued the warrant; search produced drug-related evidence used to convict defendant of several offenses. Defendant moved to suppress; trial court denied the motion.
- On appeal, the state abandoned arguing probable cause for delivery and instead argued the affidavit supported probable cause for ORS 167.222 (frequenting); the court reviewed whether the affidavit established the required nexus and mens rea for that statute.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| Whether affidavit established probable cause to search for evidence of delivery of heroin (ORS 475.850) at the Alameda house | Affidavit showed controlled buys at the house and training-based inferences that dealers keep evidence at locations they use | Buys were discrete and involved nonresident dealers; affidavit lacked quantities, indicia of ongoing enterprise, and nexus to the residence | No — affidavit failed to show probable cause for delivery at the house (state abandoned this theory on appeal) |
| Whether affidavit established probable cause under ORS 167.222 (frequenting a place where drugs are used) | Two buys at the house and resident presence supported inference that someone with authority knowingly permitted sales/use there | Statute requires habitual/ongoing use and actual knowledge by someone with authority; affidavit lacked proof of either | No — affidavit did not establish probable cause under ORS 167.222 |
| Proper interpretation of ORS 167.222 (elements and mens rea) | Statute criminalizes keeping/maintaining/frequenting/remaining while knowingly permitting use/keep/sale | Defendant: statute requires actual knowledge and authority over place; targets ongoing/commercial drug locales, not one-off visits | Court: ORS 167.222 requires (1) legal authority over place, (2) actual knowledge of permitting use/keep/sale, and (3) place where a principal or substantial purpose is commercial sale/use of drugs |
| Whether evidence seized should have been suppressed and convictions reversed | Evidence admissible under warrant | Warrant lacked probable cause; evidence should be suppressed | Warrant unsupported as to both charged bases; suppression warranted; convictions reversed and remanded |
Key Cases Cited
- State v. Webber, 281 Or. App. 342 (2016) (training-and-experience averments cannot supply probable cause absent facts showing ongoing, high-volume trafficking)
- State v. Castilleja, 345 Or. 255 (2008) (standard for magistrate probable-cause determination for search warrants)
- State v. Foster, 233 Or. App. 135 (2010) (probable cause requires nexus: crime committed, evidence exists, evidence located where searched)
- State v. Kittredge/Anderson, 36 Or. App. 603 (1978) (discrete, recent visitor possession of a transportable drug can be stale or insufficient to establish probable cause at a residence)
- State v. Smith, 31 Or. App. 749 (1977) (statute targeting places whose principal or substantial purpose is commercial sale or use of drugs; modern opium-den lineage)
- State v. Sam, 14 Or. 347 (1887) (historical source: early opium den statute and interpretation)
- State v. Gonzalez-Valenzuela, 358 Or. 451 (2015) (similar interpretive guidance requiring place be one where principal or substantial use is to facilitate unlawful drug activity)