State v. Daniels

• Decision Date: 31 March 2010
• Docket Number: 07CR0300,A136819.
• Citation: 234 Or. App. 533,228 P.3d 695
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Marvin James DANIELS, Defendant-Appellant.
• Court: Oregon Court of Appeals

228 P.3d 695

234 Or. App. 533

STATE of Oregon, Plaintiff-Respondent, v. Marvin James DANIELS, Defendant-Appellant.

07CR0300; A136819.

Court of Appeals of Oregon.

Argued and Submitted July 21, 2009.

Decided March 31, 2010.

Clayton C. Patrick, Clatskanie, argued the cause and filed the brief for appellant.

Rene C. Holmes, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Erika L. Hadlock, Acting Solicitor General.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and SCHUMAN, Judge.

SCHUMAN, J.

After the court denied defendant's motion to suppress evidence that police seized from his residence pursuant to a search warrant, defendant was tried on stipulated facts and convicted of six counts of encouraging child sexual abuse in the second degree, one count of invasion of privacy, and one count of sexual abuse in the third degree. The motion to suppress was based on defendant's argument that the application for the warrant did not contain facts that were sufficient to justify a search for incriminating photographs and videotapes. He renews that argument on appeal. We affirm.

The warrant at issue was based on the affidavit of Creighton, the Port Orford Chief of Police. In the affidavit, Creighton related that he had received a telephone call from a concerned police detective in Montana. The detective told him that she had recently learned that, some 20 years earlier, defendant had sexually abused his adopted daughter and that defendant was now living with a young female foster child.

After confirming that the person with whom he had been talking was, indeed, a Montana detective, Creighton conducted telephone interviews with the adopted daughter, P., and with defendant's biological daughter, K. Both of the women told the officer that defendant had sexually abused them between 1975 and 1986, when they were young girls. P. also reported that defendant had raped her in 1990, when she was in college. Creighton asked P. if defendant had ever videotaped any of the abuse or if she had ever seen pornographic or other sexually explicit videotapes in defendant's possession. P. stated that, to her knowledge, defendant had not had any videotapes or photographs but that, on one occasion, he did attempt unsuccessfully to videotape a sexual act with her.

Creighton's affidavit also related information that he had received from D., the brother of the foster daughter, A., who was living with defendant. D., too, had lived with defendant at one time, but had moved away nine months earlier. The affidavit related:

"D. informed me that when he was last living there sometimes at night after defendant sent the boys to bed that he would sneak a peek into the living room from his room. He said that during regular occurrences he could see defendant massaging A. on the living room floor and the living room couch. He said that A. was always clothed in a pant type pajama outfit.

"D. said that he would observe defendant kneeling over A. massaging her intimate parts including her vaginal area. Based on information provided to me by the Department of Human Services A. would have been 13 years old when defendant touched her vaginal area. D. indicated to me that he last saw defendant touching A. in May of 2006 nine months ago. D. also stated that A. and defendant would be locked inside the bathroom together, or in the bedroom and that sometimes he (D.) would knock on the door to irritate defendant and defendant would yell at him to stop."

Creighton attached transcripts of his interviews with P., K., and D. to the affidavit. He requested authorization to search defendant's residence and seize evidence containing DNA from defendant and the foster child, as well as any photographs, videotapes, or recording devices that likely contained illegal material. To justify the scope of the requested search and seizure, he explained that, based on his "training and experience,"

"I know that pedophiles have methods by which they entice and encourage children to engage in sexual conduct, and they exchange experiences, photographs with each other and make contact with other adults whom engage in similar conduct.

"* * * * *

"I know that pedophiles often retain correspondence, photographs, diaries, magazines and movies in reference to their deviance. This retention of information may span several years and the material is sometimes used to lower a child's inhibition and to re-live the pedophile experience.

"* * * * *

"Pedophiles rarely dispose of their sexually explicit material and or correspondence, especially when it's used in the seduction of their victim."

Creighton stated that his "training and experience" consisted of 24 years as a law enforcement officer and 35 hours of "advanced training and expertise in sexual abuse crimes, in which children are victimized."

The court issued the search warrant. Officers subsequently searched defendant's house and found videotapes that contained, among other things, children engaging in sexually explicit conduct and images that defendant had surreptitiously recorded through his bathroom window showing nude young girls. Defendant was indicted on 33 counts of encouraging child sexual abuse in the second degree, ORS 163.686; two counts of invasion of privacy, ORS 163.700; and one count of sexual abuse in the third degree, ORS 163.415.

Defendant filed a motion to suppress all of the items that were seized pursuant to the search warrant, arguing that the affidavit and exhibits did not state facts that were sufficient to enable a neutral and detached magistrate to determine that there was probable cause to believe that the incriminating items specified in the search warrant would be found at defendant's residence. The court denied the motion. Pursuant to a plea bargain, a stipulated facts trial ensued. Defendant was convicted of six counts of encouraging child sexual abuse in the second degree, one count of invasion of privacy, and one count of sexual abuse in the third degree. This appeal followed.

At the outset, we must clarify the scope of the appeal. Although defendant moved for the suppression of all evidence derived from the warrant, his argument on appeal focuses exclusively on the videotapes, presumably because those items were the only incriminating evidence that police found. The question on appeal, therefore, is whether the court erred in authorizing the search for and seizure of the videotapes. We need not and do not reach the question whether the affidavit and exhibits were sufficient to justify authorizing police to search for and seize other items. That issue would arise in only two situations, neither of which is presented here: first, if the other seized items were incriminating and defendant argued for their suppression; and second, if there were an argument or evidence that the police lawfully entered the residence and seized the videotapes because they were in plain view and revealed incriminating contents without further investigation.

With that focus in mind, we turn to the question whether the court erred in authorizing the search for, and seizure of, the videotapes. A judge may issue a search warrant if, after reviewing an application and supporting affidavit, the judge finds that "there is probable cause to believe that the search will discover things specified in the application and subject to seizure." ORS 133.555(2); see also Or. Const., Art I, § 9.¹ "Probable cause" is a more rigorous standard than mere suspicion; even a well-warranted suspicion does not suffice, because "a suspicion, no matter how well founded, does not rise to the level of probable cause." State v. Verdine, 290 Or. 553, 557, 624 P.2d 580 (1981). At the same time, "there is a vast difference between proof of probable cause and proof of guilt * * *." State v. Tacker, 241 Or. 597, 600, 407 P.2d 851 (1965).

To determine probable cause, the judge may rely on facts asserted in the affidavit as well as reasonable inferences to be drawn from them. State v. Anspach, 298 Or. 375, 381, 692 P.2d 602 (1984); State v. Howell, 93 Or.App. 551, 557, 763 P.2d 179 (1988), rev. den., 307 Or. 405, 769 P.2d 779 (1989). In reviewing a judge's determination that a warrant is supported by probable cause, we examine the information in the supporting affidavit in a "commonsense and realistic fashion." State v. Villagran, 294 Or. 404, 408, 657 P.2d 1223 (1983). Doubtful cases should be resolved in favor of allowing the warrant. Tacker, 241 Or. at 602, 407 P.2d 851 (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)).

In the present case, the issuing judge had the following relevant information. According to defendant's daughters, defendant repeatedly sexually abused them when they were children, the last incident occurring in 1990 when the younger daughter was in college. On one occasion, one of the daughters recalled that defendant attempted to videotape the act, but the attempt was unsuccessful. Beyond that incident, neither daughter recalled any instances of videotaping, nor did either recall that defendant possessed videotapes or photographs. No charges were ever filed against defendant for the acts involving the daughters.

For a period of time ending nine months before the warrant application, a male child living with defendant at the time had regularly witnessed defendant sexually abusing the boy's sister, then 13, by rubbing her crotch and vaginal area. Further, the boy recalled that defendant occasionally took the 13-year-old girl into the bathroom and bedroom, closed the door, and became angry when disturbed. The boy did not recall seeing pornographic videotapes or photographs.

Finally, the judge learned that the affiant, Creighton, had training and experience causing him to believe that pedophiles "often retain * * * movies in reference to their deviance," that the retention "may span several...