State v. Bush

• Citation: 174 Or. App. 280,25 P.3d 368
• Parties: STATE of Oregon, Respondent, v. Dale Allen BUSH, Appellant.
• Decision Date: 09 May 2001
• Court: Court of Appeals of Oregon

25 P.3d 368

174 Or. App. 280

STATE of Oregon, Respondent, v. Dale Allen BUSH, Appellant.

980154; A106479.

Court of Appeals of Oregon.

Argued and Submitted February 21, 2001.

Decided May 9, 2001.

Robin A. Jones, Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, State Public Defender.

Kathleen Cegla, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

BREWER, J.

Defendant appeals from convictions on two counts of delivery and one count of possession of a controlled substance, ORS 475.992 (counts I, II, and III); separate counts of unlawful possession of a machine gun and a short-barreled shotgun, ORS 166.272 (counts VI and XIII); six counts of being a felon in possession of a firearm, ORS 166.270 (counts VII through XII); and three counts of unlawful possession of a destructive device, ORS 166.382 (counts XIV through XVI). Defendant argues that the search warrant used to obtain evidence against him did not include sufficient information to distinguish his property from a neighboring property, thus rendering the search unlawful under the United States and Oregon Constitutions. Defendant also argues that the trial court erred at sentencing in finding, contrary to the indictment, that his convictions arose from separate criminal episodes. We review for errors of law, State v. Ehly, 317 Or. 66, 854 P.2d 421 (1993); State v. Knight, 160 Or.App. 395, 403, 981 P.2d 819 (1999), and affirm.

Defendant was indicted on 20 separate drug and weapons charges after the police searched his rural residence and associated property.¹ The indictment alleged that all of the charged offenses were part of the same criminal "act and transaction." ORS 132.560(1).² Defendant moved to suppress the evidence seized from his property on the theory that the warrant authorizing the search was fatally defective.

At the suppression hearing, Deputy Tiffany, a detective with the Hood River County Sheriff's office, testified about the events leading up to the search. In August 1998, deputies engaged an informant to make two controlled purchases of methamphetamine from defendant at his residence. Based on information received from the informant, Tiffany prepared an affidavit and a search warrant. In preparing the affidavit and search warrant, Tiffany looked up the legal description of defendant's property and consulted a map at the county assessor's office. According to the jacket of the property's appraisal packet, defendant's mailing address was 3671 Paul Partlow Road. However, the address "3891 Paul Partlow Road" was handwritten in pencil on the jacket as well. Workers in the assessor's office told Tiffany that the handwritten notation was probably more accurate, so Tiffany used 3891 as the road address for the warrant. He also included the tax lot number and a description of the property, "just to make sure there was no problem." Based on Tiffany's affidavit, the court issued a warrant for the search of defendant's property.

The warrant instructed "any Police officer" that:

"You are hereby authorized to search the premises located at:

"3891 Paul Partlow Rd. Hood River County, Hood River, Oregon, Hood River Tax lot 2N 9 36 200 described as follows:

"8.32ac with a two story wood frame single family dwelling, faded white in color with the front door facing south. A wood framed garage sets [sic] on the west side of the residence, and outbuildings located north of the residence. To the south of the residence is a wooden framed building referred to as the `car barn'. Also to the east of the residence is [sic] several vehicles which appear to me to be abandoned and in various stages of disassembly. In addition to all out buildings located on the property owned by [defendant], 3891 Paul Partlow Rd.

"For: Evidence of the crimes of Possession of controlled substances, delivery of controlled substances, felon in possession of a firearm and possession of stolen property, to wit: Methamphetamine, $20.00 Bills, Scales, packaging equipment, and materials, paraphernalia use [sic] to ingest methamphetamine, evidence of occupancy, drug records, firearms, a pickup and motorcycle."

Tiffany's affidavit was not attached to the search warrant as issued, nor were driving instructions or a map. In preparation for executing the warrant, Tiffany briefed the officers who would be conducting the search. In that briefing, Tiffany drew maps on a chalkboard, exhibited aerial photos and assessor's maps, and supplied directions to the property, but he did not refer to the tax lot number of the property.

All of the descriptive information contained in the warrant was accurate except for the road address, which erroneously corresponded to premises located approximately one mile from defendant's property. The owner of the property at 3891 Paul Partlow Road was Judy Charbonneau, who testified that her property contained two residences: a log cabin-style home and, east of that, an off-white, two-story A-frame house. Both residences faced south. A wood-framed shop building and several inoperable vehicles were located to the west of the cabin, and a woodshed was located to the north of the cabin. Charbonneau testified that because of the rural nature of the area, she would not use her address to direct a visitor to her residence. Instead, she said she would draw a map.

Deputy Troxel, another sheriff's detective, testified that he and other officers customarily used tax lot numbers in executing rural search warrants. Although Troxel did not participate in the search of defendant's property, he testified that he had used a tax lot number and an assessor's map to identify rural properties "two or three times a month."

The trial court concluded that the warrant described defendant's property with sufficient particularity and admitted the evidence seized from defendant's property. After a jury trial, defendant was convicted on 14 counts: counts I, II, III, the three drug offenses, and counts VI through XVI, 11 of the weapons charges.

At sentencing, the trial court found that the drug convictions on counts I, II, and III resulted from three separate criminal episodes. The court imposed consecutive sentences on those counts, departed upward on count III, and increased defendant's criminal history score from column G on count I to column F on counts II and III. The finding that counts I, II, and III arose from separate criminal episodes affected the court's sentencing decision in several ways. First, it enabled the court to impose consecutive sentences on those counts under ORS 137.123(2).³ Second, the court imposed the consecutive sentences on those counts without shifting any of the convictions to column I of the sentencing guidelines gridblock. Cf. State v. Rojas-Montalvo, 153 Or.App. 222, 226, 957 P.2d 163,

rev. den. 327 Or. 192, 961 P.2d 218 (1998) (holding that when sentences are imposed consecutively for offenses arising out of the same criminal episode, the court must, under OAR 213-012-0020(2)(a), shift defendant's criminal history score to column I for the secondary offenses).⁴ Third, the court enhanced defendant's criminal history score on counts II and III in accordance with the rule in State v. Bucholz, 317 Or. 309, 311-12, 855 P.2d 1100 (1993), which permits sentencing courts to count convictions arising from separate criminal episodes in order to establish the presumptive sentences for later convictions that are sentenced in the same criminal proceeding. Finally, because it found that counts I, II, and III involved different episodes, the court also imposed the corresponding sentences without regard to OAR 213-008-0007(3)—the 400 percent rule—which generally limits the total duration of consecutive sentences and departure sentences to 400 percent of the maximum presumptive sentence for the primary offense.⁵

See State v. Davis, 315 Or. 484, 492, 847 P.2d 834 (1993) (explaining the 400 percent rule); see also State v. Miller, 317 Or. 297, 302-03, 307, 855 P.2d 1093 (1993) (the 400 percent rule does not apply to "sentences derived from different criminal episodes"). The court sentenced defendant to a total prison term of 118 months.

In his first assignment of error, defendant contends, as he did before the trial court, that a police officer reading the warrant bearing Charbonneau's road address could reasonably have mistaken Charbonneau's property for that described in the warrant. If so, the warrant was invalid and the search illegal. See State v. Blackburn/Barber, 266 Or. 28, 34-35, 511 P.2d 381 (1973)

("If * * * a warrant purporting to authorize a search is sufficiently ambiguous that it is impossible to identify with a reasonable degree of certainty the particular premises authorized to be searched, the warrant may not be executed and any search pursuant to it is illegal, whether of the premises actually intended or not, because of the danger that the privacy of unauthorized premises will be invaded."). The state responds that the warrant's physical description of defendant's property, coupled with its listing of the unique tax lot number for that property, identified the property with sufficient particularity despite the incorrect street address. We agree.

A search warrant must describe with particularity the place to be searched. ORS 133.565(2); Or Const, Art I, § 9; US Const, Amend IV. In the analysis of a warrant's particularity, the statutory and constitutional issues merge. State v. Edwards, 149 Or. App. 702, 707, 945 P.2d 553, rev. den. 326 Or. 234, 952 P.2d 61 (1997). It is sufficient "if the description is such that the officer with a search warrant can with reasonable effort ascertain the identity of the place intended." Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925); Blackburn/Barber, 266 Or....