State v. Culley

• Decision Date: 16 March 2005
• Citation: 108 P.3d 1179,198 Or. App. 366
• Parties: STATE of Oregon, Appellant, v. Brenda Lea CULLEY, aka Brenda Lee Culley, Respondent. State of Oregon, Appellant, v. Robert Gordon Culley, Respondent.
• Court: Oregon Court of Appeals

108 P.3d 1179

198 Or. App. 366

STATE of Oregon, Appellant, v. Brenda Lea CULLEY, aka Brenda Lee Culley, Respondent.

State of Oregon, Appellant, v. Robert Gordon Culley, Respondent.

02CRCR0317; A119007.

Court of Appeals of Oregon.

Argued and Submitted May 25, 2004.

Decided March 16, 2005.

Douglas F. Zier, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Anne Fujita Munsey, Deputy Public Defender, argued the cause for respondents. With her on the brief were Peter A. Ozanne, Executive Director and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Before HASELTON, Presiding Judge, and LINDER, Judge, and DEITS, Judge pro tempore.

LINDER, J.

In these consolidated criminal cases, defendants are charged with multiple offenses as a result of evidence obtained during a warranted search of their residence.¹ The trial court granted defendants' pretrial motion to suppress, concluding that the warrant authorizing the search was not supported by probable cause. The state appeals, and we affirm.

The pertinent facts are those in the affidavit in support of the search warrant. In the affidavit, a Brookings police detective asserted the existence of probable cause to believe that defendants Robert and Brenda Culley — who are husband and wife — were involved with a third person, John Reece, in a conspiracy to manufacture, distribute, and possess methamphetamine, heroin, and marijuana. The affiant further asserted probable cause to believe that evidence of the drug activities could be found at defendants' residence, which was identified as 16009 Hannan Lane.

In support of probable cause, the detective recited information obtained from confidential and anonymous hearsay sources over the previous year. In particular, approximately nine months before the date of the affidavit, a confidential reliable informant told police that defendant Robert Culley had obtained marijuana and possibly heroin from California. About two months before the date of the affidavit, police also obtained information from an unnamed concerned citizen who had overdosed on drugs. That person said that he or she had obtained heroin from defendant Robert Culley at defendants' residence. Also, "during the past several months," unnamed concerned citizens living in the apartment complex where defendants had been residing reported to police that a number of visitors had gone to defendants' apartment and stayed only a short time. At least twice during that period, those citizens observed people with firearms go into defendants' apartment. They also recorded the license plate numbers of visitors, and a police check of motor vehicle records for those licenses revealed that at least some of the vehicles belonged to "drug users and dealers." The citizens also told police that, on "several occasions," they saw minors go into defendants' apartment and stay only a brief time.

The detective also recited information from a named informant about observations of drug activity made close in time to when the affidavit was prepared. Specifically, two days before the date of the affidavit, the affiant was contacted by other police officers and directed to contact Anita Martin "in reference to drug information." As recited in the affidavit,

"[Martin] stated that she has known Robert and Brenda Culley for some time and that her boyfriend is John Reece. [Martin] stated that she was at the Culley residence earlier today (02-26-02) and saw a large amount of marijuana and cash. [Martin] stated that Robert, Brenda and John are selling marijuana from the residence on Hannan Lane, and that she has seen Robert sell marijuana to several minor children in her presence, just in the past few days. [Martin] also stated that they have OxyContin on a regular basis. I know that person[s] that use heroin will use OxyContin when no heroin is available.

"[Martin] stated that they travel to California and purchase the marijuana. [Martin] stated that the marijuana that she saw today was packaged in quarters, eighths and sixteenths. [Martin] stated that the marijuana and cash was in a black bag above the microwave. [Martin] also stated that they keep marijuana below the sink. [Martin] stated that Robert prefers to use heroin, but she has not seen any heroin but has seen methamphetamine and OxyContin in the residence. I asked [Martin] when Robert and Brenda Culley moved from the Azalea Reach Apartments. [Martin] stated that they moved into the residence on Hannan last Sunday 02-24-02. [Martin] stated that Robert and Brenda have at least three small children living at home."

The affiant then explained that he "made contact with the Azalea Reach Apartments, and was advised that Robert and Brenda moved out on 02-22-02." The affiant did not recite any attempt by police to verify that defendants had moved to a residence on Hannan Lane or to observe activities around that residence.

Relying on the affidavit, a magistrate issued a warrant to search defendants' residence, which was identified as 16009 Hannan Lane.² As a result of evidence and statements obtained during the search of the residence, defendants were indicted for the crimes of which they now stand charged.

Before trial, defendants moved to controvert the affidavit and to suppress all evidence that resulted from the search of the residence. After an evidentiary hearing, the trial court rejected defendants' challenges to the accuracy and truthfulness of the information recited in the affidavit. The trial court agreed with defendants, however, that the affidavit omitted material information. In particular, the trial court found:

"Omitted from the affidavit were other facts which, if known to the issuing judge, could have made a difference in determining the sufficiency of the affidavit: the fact that Anita Martin was under the influence [of alcohol] at the time of the interview AND that she had not voluntarily contacted the police (which was the inference from the affidavit). The named informant had been contacted by police as a result of a report of possible domestic violence. She told police that she had had an argument with her boy friend, John Reece, and he was gone by the time the police arrived."

(Emphases in original.) Thus, the trial court determined that the affidavit omitted two material facts: (1) that Martin was under the influence of alcohol when police interviewed her; and (2) that police contacted her to investigate possible domestic violence against her by John Reece, rather than because Martin wanted to initiate a report to police about defendants' and Reece's drug activities.

The trial court concluded that those omissions were significant in assessing probable cause, because they detracted from Martin's reliability:

"[Martin therefore] was not a citizen-informant who might arguably not be needed to be shown as reliable or credible. Since she did not initiate the conversation, she would not be subject to prosecution for initiating [a] false report. She did not admit to any use of controlled substances, so her statements were not against her penal interest. She possibl[y] had motives to falsify her report."

(Emphasis in original.) The trial court therefore examined the extent to which police corroborated the information that Martin gave them:

"The only corroboration that police sought of the information provided by Ms. Martin, according to the affidavit, was determining that the defendants had moved from their former residence; there was no independent corroboration of the information provided by Ms. Martin that they had moved to Hannan Lane; there was no information in the affidavit about any attempt by the police to watch the new alleged residence for suspicious activity or to verify that defendants had moved there."

In assessing the affidavit as a whole, the trial court observed that Martin was the "critical link" between the older — and stale — information of past drug activity at defendants' former residence and the recent observations of drug activity at the Hannan Lane residence.³ But, as the above portions of the trial court's opinion reveal, the trial court further concluded that Martin's status as a named informant did not make her inherently reliable considering the information omitted from the affidavit — namely, that Martin was intoxicated and that police interviewed her in the context of an investigation of domestic violence involving Reece, rather than because she wanted to report defendants' and Reece's alleged drug activities. In the trial court's view, police therefore needed to corroborate Martin's information to establish its reliability and they did not do so adequately. Considering the "totality of the circumstances" related in the affidavit, the trial court concluded that the affidavit was not sufficient to provide probable cause for the search warrant, and it granted defendants' motion to suppress.

On appeal, the parties largely renew the arguments that they made below. The state asserts that the facts omitted from the affidavit did not significantly detract from Martin's reliability and that the trial court demanded too much of police in the form of corroboration. In particular, the state argues that Martin's intoxication did not impair her ability to communicate or render her a "liar" and that she provided detailed information to police despite her intoxication. The state also asserts that, although Martin did not "initiate" a report of defendants' and Reece's drug activities, she voluntarily provided that information to police, under circumstances that do not suggest that she had ulterior motives. In response, defendants urge that Martin's intoxication was a basis for questioning her judgment and the accuracy of her information. Moreover, according to defendants, the facts that Martin was in a dispute with Reece and that she did not initiate contact with police to...