State v. Harper

• Citation: 197 Or. App. 221,105 P.3d 883
• Parties: STATE of Oregon, Respondent, v. Tommy Keith HARPER, Appellant.
• Decision Date: 02 February 2005
• Court: Oregon Court of Appeals

105 P.3d 883

197 Or. App. 221

STATE of Oregon, Respondent, v. Tommy Keith HARPER, Appellant.

0003315CR; A118880.

Court of Appeals of Oregon.

Argued and Submitted September 8, 2004.

Decided February 2, 2005.

Priscilla A. Maloney argued the cause and filed the brief for appellant.

Rebeca Piedra, Certified Law Student, argued the cause for respondent. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Janet Klapstein, Assistant Attorney General.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and ARNOLD, Judge pro tempore.

BREWER, C.J.

A jury convicted defendant of possession of a controlled substance. ORS 475.992(4). Before trial, defendant filed a motion to suppress statements that he made during an encounter with police and evidence seized at his home. The trial court denied the motion, ruling that the encounter was not a stop and that the evidence found in defendant's residence was seized under a valid search warrant. On appeal, defendant first argues that the trial court erred in denying his motion to suppress because the police unlawfully stopped him and the search warrant was issued, in part, based on statements that he made during the stop. Defendant also argues that, even if the stop was lawful, the information in the affidavit in support of the search warrant was insufficient to establish probable cause to believe that evidence would be found at his home. On review for errors of law, State v. Stephens, 184 Or.App. 556, 560, 56 P.3d 950 (2002), rev. den., 335 Or. 195, 64 P.3d 576 (2003), we vacate the judgment and remand for further proceedings.

We take the following facts from the trial court's findings at the hearing on the motion to suppress and from undisputed evidence in the record.¹ An unnamed employee of the "Big R" store in Klamath Falls informed Detective Shepherd that defendant had purchased one gallon of seven percent tincture of iodine, a substance that is used in large quantities in the manufacture of methamphetamine. The cashier at the store had requested defendant's identification and had written down defendant's driver's license number, which he gave to Shepherd. DMV records revealed defendant's address. Two days later, when defendant left his home on his bicycle, Detective Holloway followed him. Holloway was in plain clothes and driving an unmarked vehicle. He asked his dispatcher to route any officer in the area to defendant's location so that Holloway could speak with defendant.

Detective Streifel saw defendant riding his bicycle on the sidewalk, parked about a block ahead of defendant, and waited on the sidewalk next to his patrol car for defendant to approach. Streifel was in uniform with his badge displayed. The overhead lights on his patrol car were turned off. When defendant was near enough that Streifel could speak to him in a normal tone, the detective identified himself and asked if he could talk to defendant "for a minute." He did not order defendant to stop or make any other overt displays of authority, but defendant did stop. Before saying anything else, Streifel asked defendant for identification, and defendant gave it to him. Streifel retained defendant's identification and called a dispatcher from his shoulder radio to check for outstanding warrants. At some point during the encounter, Streifel asked defendant if he had any weapons, which defendant denied. Streifel also asked for defendant's consent to search his person; defendant declined. Seconds after Streifel asked defendant for his identification, Holloway approached them on foot.

While Streifel checked for warrants, Holloway asked defendant about the iodine purchase. Defendant told Holloway that a man, whom he described as "a rancher," had stopped him in front of the Big R store and asked defendant to buy the iodine for him. According to defendant, the rancher explained that he could not buy the iodine himself because he had left his identification at home. Defendant stated that the rancher gave him the money to buy the iodine plus $50 for making the purchase. Defendant told Holloway that he did not know the man but indicated that he lived south of town. Holloway asked defendant for permission to search his person and his residence, but defendant again declined. As Holloway was leaving, he told defendant that he would try to obtain a search warrant.

While Holloway was speaking to defendant, Streifel "stayed back a little ways" because he could not hear the radio over their conversation and did not want to interrupt them. The record does not establish precisely when Streifel returned defendant's identification to him, although, at the hearing on defendant's motion to suppress, the following exchange took place, indicating that Streifel still had the identification when Holloway began questioning defendant:

"[COUNSEL]: And, so while you had [defendant's] identification and were radioing it in, Detective Holloway arrived?

"[STREIFEL]: Yes.

"[COUNSEL]: Detective Holloway began to ask [defendant] questions at that point?

"[STREIFEL]: Yeah, they had a conversation * * *."

At no point during the encounter did either detective tell defendant that he was not free to leave, and defendant did not ask or attempt to leave until the detectives had finished talking to him. The entire encounter lasted less than five minutes.

Later that day, Detective Fenner spoke with a local veterinarian, who told him that iodine is used to treat the navels of newborn calves and injuries to horses' feet. The veterinarian told Fenner that one gallon of iodine would treat between 100 and 200 calves. Fenner checked defendant's criminal record and found that defendant had been arrested for possession of methamphetamine and released less than three months earlier. Defendant's record also revealed that he had been arrested again less than one month earlier for violating his release agreement by failing to submit to a urinalysis. The record also showed that defendant had two marijuana-related arrests, in 1972 and 1977.

Based on the information at his disposal, Fenner concluded that defendant was involved in a conspiracy to manufacture methamphetamine. He applied to the Klamath County Circuit Court for a warrant to search defendant's person, his home, and his van for evidence of that crime. In the affidavit in support of the warrant, Fenner set out a number of general facts based on his training and experience. For example, he stated that people who manufacture methamphetamine often do so in groups. He further stated that illegal drug manufacturers also are involved in distributing the substances that they manufacture. In addition, Fenner stated that such people frequently have in their homes evidence pertaining to manufacturing and distribution operations; he listed items ranging from scales and plastic baggies to records of chemical purchases and drug sales, large amounts of cash, and methamphetamine itself. Fenner explained that iodine is one of three main ingredients in the manufacture of methamphetamine and that a gallon of seven percent tincture can produce up to one and one-half pounds of diluted, "street level grade" methamphetamine.

In the affidavit, Fenner also related a number of facts specific to this case. He stated that "an employee of Big R" had informed Shepherd that defendant had purchased a gallon of seven percent tincture of iodine. He stated that the employee had copied defendant's driver's license number and that Fenner had checked it with DMV records. He recounted defendant's statement to Holloway that defendant had purchased the iodine for an unidentified rancher for $50. Fenner stated that the price of one gallon of iodine at the Big R store was $26.95. He attested that, in his experience, it was unlikely that a rancher or any other person would spend an extra $50 to save a trip home to retrieve his or her identification. Fenner also described his conversation with the veterinarian and stated that he had observed defendant's residence; he characterized the yard as too small to be suitable for livestock and stated that there were no animals visible in the yard.

The court issued the search warrant. When the detectives executed the warrant, they found several items in defendant's house consistent with methamphetamine use, including a hollowed out pen body with a white, powdery substance in it. The substance tested positive for methamphetamine. As a consequence, defendant was charged with possession of a controlled substance.

Before trial, defendant filed a motion to suppress all evidence gathered as a result of his encounter with Streifel and Holloway, as well as the evidence seized pursuant to the search warrant. The trial court concluded that the initial encounter was not a stop and, therefore, that evidence of defendant's statements to Holloway was lawfully obtained. The court determined that, on their face, defendant's statements to Holloway "lacked any credibility whatsoever." Although the court stated that the sufficiency of the warrant was a "close case," it concluded that Fenner's affidavit established probable cause to believe that evidence would be found in defendant's home. The court stated that "[t]he unbelievable story that defendant told to the police about the iodine plays a large part in this determination." The court denied the motion to suppress. At trial, the state introduced the evidence found in defendant's home, and the jury returned a guilty verdict. This appeal followed.

As noted, in his first assignment of error, defendant argues that the trial court erred in denying his motion to suppress his statements to Holloway. In his second assignment of error, defendant argues, in part, that, even if Fenner's affidavit properly included his statements to Holloway, it did not establish probable cause to issue the warrant. If defendant's latter argument is correct, it will be unnecessary to address his first assignment of error challenging the...