Dеfendant appeals a judgment of conviction for one count each of unlawful delivery of methamphetamine (Count 1), ORS 475.890, and unlawful possession of methamphetamine (Count 2), ORS 475.894, both as commercial drug offenses, ORS 475.900(l)(b).
The facts, as they pertain to the issue on appeal, are undisputed. On October 8, 2009, Detective Floyd, a sergeant with the Coos County Sheriffs Department and director of the South Coast Interagency Narcotics Team (SCINT), applied by telephone for a warrant to search defendant’s residence, viz., a recreational vehicle (RV), and an outbuilding, described as a silver “Quonset hut style shop” (the shop). Floyd’s telephonic affidavit supporting the application contained the following information.
On January 14, 2006 — almost 45 months еarlier— Floyd had seized a commercial quantity of crystal methamphetamine from defendant at the shop. On October 8, 2009 — the same day that Floyd applied for the search warrant — Floyd had responded to a call from Larson, a parole and probation officer, indicating that defendant and another person, Burback, had been the subject of a traffic stop very early that morning. Larson told Floyd that both men “were on his case load for the possession of methamphetamine” and that he wanted to conduct a home visit to make sure that defendant was not violating the terms of his supervision by possessing methamphetamine.
The officers went to defendant’s address, where defendant was living in the RV. Burback was also present, as was a third person, Hasner. Defendant gave Larson consent to search the RV, and Larson promptly found approximately a quarter of a gram of methamphetamine and a “meth pipe with residue.” The methamphetamine was in a bindle attached with a magnet to a metal box that defendant identified as belonging to him. Hasnеr, who had been living in the RV with defendant for over three months, refused consent to search her property, including another metal lock box located next to the box with the methamphetamine attached to it.
Floyd knew from previous police contacts that defendant’s mother occupied another structure on the property. He contacted her, and she told him that defendant spent a lot of time in the shop, where he had set up an office with a computer.
Floyd’s affidavit also recounted his law enforcement training and experience; the extent of that testimony was as follows:
“I am a Sergeant and Director of the South Coast Interagency Narcotics Team, and I have been a Deputy with the Coos County Sheriff’s Department for over thirteen years and have over seventeen years of total law enforcement experience, which includes four years as a Reserve Deputy for the Coos County Sheriff’s Office. I have attended the Oregon Department of Public Safety Standards and Training Academy, DPSST[,] and currently hold an advancеd Police Certificate, that [as] part of my training as a police officer[,] I’ve had on the job training and experience related to the investigation of possession of controlled substance specifically in methamphetamine.As part of my training I’ve received instructions in all facets of law enforcement. That from this said training I have knowledge of State Statute that I can apply for a Telephonic Search Warrant. That during my tenure as a police officer I’ve been involved in over fifty related investigations involving possession of methamphetamine and I’ve also assisted in at least ten search warrants that have been issued during these investigations that have led to the arrests, successful prosecution and the subsequent prosecution of suspects and that I’ve applied for Telephonic Search Warrants in the past and recovered items of the initial search.”
Based on the above, Floyd asserted that he had probable cause to believe that defendant and Hasner “are in possession of methamphetamine” and that “evidence of said crimes is located in the [RV] and * * * shop under the control and/or custody of [defendant] and [Hasner].” The evidence to be seized included “a quantity of Methamphetamine/ Amphetamine” and “methamphetamine/amphetamine and marijuana distribution paraphernalia,” as well as a comprehensive list of items, such as documents, records, computer equipment, photographs, receipts, cash and currency equivalents, and the like,
“all of which are fruits, evidence and instrumentalities] of crimеs!,] that is, the manufacture of methamphetamine/ amphetamine, the possession with intent to distribute methamphetamine/amphetamine, and the distribution of methamphetamine/amphetamine, a conspiracy to manufacture, distribute, and to possess methamphetamine/ amphetamine by [defendant] or Hasner [.]”
The trial court authorized the warrant, and Floyd, Larson, and another officer executed it, finding, in the RV, “tally sheets,” scales, packaging materials, syringes, a smoking pipe or “snort tube,” evidence of defendant’s domicile аt the address, a blackjack, and several bindles containing methamphetamine. They also found $851.02 in cash on defendant’s person. No evidence was seized from the shop.
Defendant moved to suppress the evidence obtained from the search on the ground that “the search warrant affidavit fails to recite probable cause sufficient for a warrant to issue.” In an affadavit supporting the motion, he contended that, other than the fact of the discovery of a quarter gram of methamphetamine and the pipe with rеsidue, “nothing was added by the affidavit to support issuance of a search warrant for anything more than the crime for which probable cause already had been established.” At the hearing on his motion, defendant argued that “the search warrant affidavit did not recite enough additional information to go beyond what was originally searched for and found.”
The trial court denied defendant’s motion to suppress, determining that the affidavit was sufficient to establish probable cause based on the following facts: the discovery of the drugs, in a cоntainer associated with a locked box, and the pipe; defendant’s criminal history involving commercial drug activity; and defendant’s association with Burback, “who has a documented drug history,” on two occasions within a 24-hour period.
As noted above, after a jury trial, defendant was found guilty of unlawful delivery of methamphetamine and unlawful possession of methamphetamine, both as commercial drug offenses under ORS 475.900(l)(b).
On appeal, defendant contends that the court erred in denying his suppression motion because the facts in the affidavit suрporting the search warrant “do not support a reasonable conclusion that it was more likely than not that defendant had more drugs in his home.”
The state, on the other hand, disputes that the information about defendant’s 2006 drug activity is stale, contending that it is “still probative because of all the new information in the affidavit.” In the state’s view, taken together, defendant’s drug history, his fraternizing with another person with a known drug history, the discovery of methamphetamine attached to a “lock box” in his residеnce, and his spending a lot of time in the shop that he had previously used as a drug distribution center could support a reasonable magistrate’s conclusion “that it is more likely than not that evidence of drug activity would be found on the premises.” (Internal quotation marks omitted).
In reviewing a challenge to the sufficiency of an affidavit supporting a magistrate’s issuance of a warrant, we consider “whether a neutral and detached magistrate could conclude, based on the facts and circumstances shown by the affidavit, that there was probable cause to believe that the search would discover things specified in the affidavit in the places requested to be searched.” State v. Castilleja,
As a starting point, we have held that the current possession of a small amount of illegal drugs in a person’s home does not give rise to probable cause to search the home for additional drugs. See, e.g., State v. Mepham,
We reached the same result in State v. Kittredge/ Anderson,
Instead, additional facts beyond the current possession must be presented to establish the probability that further evidence of criminal activity will be found at thе suspected location. For example, as we observed in Kittredge!Anderson, “[i]f large quantities [of marijuana] were observed, there would exist at least a permissible inference that *** the premises were being used as a market for the sale of marijuana.”
Here, the affidavit established the presence of only a small quantity of methamphetamine in defendant’s home— sрecifically, a quarter of a gram — and a pipe containing residue, both of which suggest personal use of the drug. In other words, neither of those facts supports an inference that defendant was engaged in the sale of methamphetamine from the location, which, in turn, could establish the probability that additional quantities of the drug would be discovered in defendant’s residence and property. Accordingly, we look to the additional details set forth in the affidavit to see whether they are sufficient, when combined with those facts, to make it probable that additional drugs — or other evidence of drug activity — would be found at the location. Kittredge / Anderson,
Those details are sparse. First, the affidavit states that, approximately 45 months earlier, law enforcement officers had seized a commercial quantity of crystal methamphetamine from defendant at the same location. As noted, defendant contends that that information was “stale,” and, therefore, simply should not have been considered in determining whether probable cause existed to support issuance of the warrant. Although defendant acknowledges that otherwise stale information can be “refreshed” by more recent information indicating continuing criminal activity, in his view, that concept is inapplicable in this case because the recent drug discovery is “so different in kind” from the prior activity.
In State v. Gale / Rowden,
“[a]lthough probable cause to search must exist when a warrant is issued, ‘that does not mean that, simply because some information in an affidavit is old, a magistrate must exclude it when deciding whether the requisite probable cause exists.’ State v. Howell,93 Or App 551 , 559,763 P2d 179 (1988), rev den,307 Or 405 (1989). Rather, the information presented must be evaluated in its totality. [Id.] The lapse of time after which information becomes stale depends on all the circumstances. State v. Ingram,251 Or 324 , 327,445 P2d 503 (1968).”
(Emphasis in original.) We have also emphasized that “[e]vidence that conduct has continued over time can support an inference that it was ongoing at the time the warrant was issued.” State v. Chase,
Here, the current discovery of drugs at the same location as the prior seizure of drugs provides an indication that some criminal drug activity was ongoing at the suspected
On the other hand, as defendant emphasizes, the nature of the recent criminal activity on the premises — that is, the discovery of a small amount of drugs there on the day the warrant request was made — differs significantly from the prior activity. See State v. Johnson,
Considered in the totality of the circumstances, Gale / Rowden,
In Kolb, we considered whether a defendant’s manifestations of recent drug use supported reasonable suspicion that the defendant possessed evidence of the crime of unlawful possession of a controlled substance sufficient to justify the stop of the defendant. The officer testified, based on his training and experience, that “ [p]eople who usually are under the influence had to obviously take the methamphetamine. It’s very common that they have pipes, needles, syringes, paraphernalia with them when they are under the influence,” id. at 307. The trial court agreed, reasoning that it was a “fair inference” that a person under the influence of a controlled substance would hаve the substance in his or her possession in the form of residue on implements used to ingest the substance. Id. at 308. In reversing the trial court, we discussed the impermissible stacking of inferences that was required to reach that conclusion. As we explained, “ [i] f the premises collectively are impermissibly speculative, or if any of the premises is individually insupportable, the stop was not supported by reasonable suspicion.” Id. at 313. Applying that principle, we seriously questioned whether it was permissible for the trial court to infer from the officer’s testimony that persons under the influence of methamphetamine would not only possess implements of that use but would also retain those implements — a connection that was not explicit from the officer’s testimony. Even if that were a permissible inference, however, the remaining inferences required to arrive at reasonable suspicion of possession — that retained implements often bear evidence of prior use and that that proposition applies specifically to methamphetamine use— werе entirely speculative. Id. at 314. Nothing in the officer’s testimony, we held, would substantiate those premises; therefore, the trial court erred in concluding that the stop was supported by reasonable suspicion based on the proposition that the defendant likely possessed the instrumentalities used to ingest the substance. Id. at 315.
In this case, the affidavit must satisfy the more demanding standard of probable cause. See State v. Daniels,
In sum, as we said in Wilson, “although the fаcts suggest a possibility that criminal evidence might be found at defendant’s residence, that is not the standard to be met here.”
Convictions on Counts 1 and 2 reversed and remanded; otherwise affirmed.
Notes
Defendant was also charged with conspiracy to commit unlawful delivery and unlawful possession of methamphetamine. Those counts were dismissed on the state’s motion.
Defendant also raises several assignments of error regarding nonunanimous jury verdicts. We reject those arguments without discussion. See, e.g., State v. Cobb,
Burback consented to a search of his person; no contraband was found, and he was released.
ORS 475.900(l)(b) provides that the crime of possession, delivery, or manufacture of a controlled substance is a commercial drug offense — resulting in a higher crime seriousness classification under the sentencing guidelines — if it is accompanied by at least three of several factors enumerated in the statute. In this case, the indictment charged that the offenses were commercial drug offenses because defendant possessed $300 or more in cash, ORS 475.900(l)(b)(B); possessed material used for the packaging of controlled substances, ORS 475.900(l)(b)(D); and possessed drug transaction records or customer lists, ORS 475.900(l)(b)(E).
Defendant does not raise any issues concerning the scope of the warrant, either as to the areas to be searched or the property to be searched for.
The probable cause requirement derives from statute, see ORS 133.545(4); ORS 133.555, as well as the state and federal constitutions, see Or Const, Art I, § 9; US Const, Amends IV and XIV.
In Chase, for example, information supporting the issuance of a warrant to search the defendant’s property for evidence of the possession, delivery, and manufacture of methamphetamine included the officer’s declaration that, from his training and experience, “he knew that persons who sell drugs are frequently users who generally “keep personal use amounts on hand in their homes,”’ and ‘“oftеn keep larger inventories of controlled substances for future sales within their residences.’”
The fact that the methamphetamine was discovered attached to a locked box does not, in the absence of further explanation as to the significance of that circumstance, add anything to the analysis.
We further note that the affidavit in support of the warrant makes no attempt to explain why the officer’s training and experience led him to believe that additional drugs (or implements) for defendant’s personal use would be found there.