State v. Lee
| Decision Date | 20 April 2022 |
| Docket Number | A171927 |
| Citation | 319 Or.App. 191,509 P.3d 689 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Aaron Christopher LEE, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Erik Blumenthal, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Mooney, Presiding Judge, and Kamins, Judge, and Pagán, Judge.*
In this criminal appeal, defendant contests the trial court's denial of his motion to suppress, which predicated his guilty plea to felon in possession of a firearm, ORS 166.270(1). On appeal, defendant reiterates his argument that Article I, section 9, of the Oregon Constitution prohibits the use of "anticipatory" search warrants—that is, where probable cause is based on the fulfillment of certain conditions to happen after the issuance, but before execution, of the warrant. Because we conclude that such warrants are not categorically impermissible under the Oregon Constitution and that the evidence in the warrant affidavit established probable cause to search the home, we affirm.
In early December 2016, Albany Police Detective Davis obtained information about suspected drug distribution from an informant, Controlled Buy Informant (CBI), who sought leniency on a pending criminal matter. The CBI identified an Albany man, Alleged Drug Dealer (ADD), from a DMV photo and explained that he had purchased heroin from ADD at ADD's house twice a week for the past four months. The CBI said that he had purchased heroin in quarter-ounce increments for $325, and he agreed to do a controlled buy from ADD.
Another confidential informant who had previously provided accurate information to the police regarding drug distribution identified ADD as a "major heroin dealer" in the area. Other informants had also referenced ADD by name as a person from whom heroin could be purchased and had provided an address consistent with the one provided by the CBI as where he had purchased heroin from ADD.
At that address, Davis located a truck registered to ADD. From a business advertisement on the truck, Davis obtained a phone number that had been discovered during searches of three cellular telephones associated with people who had been arrested for heroin offenses. Davis also found that, as a victim, ADD had provided the same phone number to Albany police in connection with a report of menacing in 2015.
Using that information and his training and experience during 22 years in law enforcement, Davis obtained a search warrant for the Albany house identified by the CBI. The warrant included a condition—that the CBI would complete a purchase with police surveillance—to corroborate the validity of the information from the multiple informants, two of whom sought leniency in other matters. The warrant provided several requirements to ensure that the condition was met:
The CBI completed the controlled buy under the specified requirements. Police executed the search warrant and found defendant at the house. Several other people there identified defendant as a party to the drug deal. Police searched defendant's backpack and found methamphetamine and a firearm.1 Defendant acknowledged that he was at the residence when the drug deal happened but claimed that he was in the garage and had nothing to do with the sale.
Before trial, defendant moved to suppress the evidence seized from his backpack. He argued that "anticipatory warrants"—warrants containing a condition prior to their ability to be executed—are prohibited by the provision of Article I, section 9, that "no warrant shall issue but upon probable cause." In defendant's view, that clause requires that probable cause exist at the time the warrant is issued, not upon the occurrence of a set of conditions.
In Oregon, a search warrant is issued upon a showing before a "neutral and detached magistrate" that there is reason to believe that the facts stated in the affidavit are true and that those facts are sufficient to establish probable cause to justify the search requested. State v. Castilleja , 345 Or. 255, 264, 192 P.3d 1283, adh'd to on recons. , 345 Or. 473, 198 P.3d 937 (2008). Probable cause exists when the facts in the affidavit would "lead a reasonable person to believe that seizable things will probably be found in the location to be searched." Id.
Anticipatory warrants are similar in that they require probable cause that evidence will be found at the specified location at the time of the warrant's execution, but different in that they also contain a condition (such as the arrival of a package) that must occur before the warrant can be executed—meaning that "at some future time (but not presently) certain evidence of crime will be located at a specific place." United States v. Grubbs , 547 U.S. 90, 94, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006) (internal quotation marks omitted). Like ordinary warrants, anticipatory warrants "require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed." Id. at 96, 126 S.Ct. 1494 (emphasis in original). Anticipatory warrants in the context of drug cases are particularly common. See United States v. Perkins , 887 F.3d 272, 276 (6th Cir. 2018) ().
The United States Supreme Court unanimously determined that anticipatory warrants are not categorically unconstitutional under the Fourth Amendment's provision that "no Warrant shall issue, but upon probable cause." Grubbs , 547 U.S. at 95, 126 S.Ct. 1494. Because all warrants focus on whether evidence will be found when the search is conducted, the Court reasoned that "all warrants are, in a sense anticipatory." Id. It is therefore immaterial that the contraband to be seized under the warrant was not at the location to be searched when the warrant was issued, so long as there was probable cause to believe that the contraband would be there when the warrant was executed. Id. at 96, 126 S.Ct. 1494. The Court also noted an important limit on anticipatory warrants: not only must the affidavit set forth facts that establish probability that the contraband will be found if the triggering event occurs, but also establish probability that the triggering event will occur . Id. at 96-97, 126 S.Ct. 1494. Both facets are essential. Id.
Most states have also determined that anticipatory warrants are permissible, either by following the federal standard or concluding so under their state's constitution. See generally Pennsylvania v. Glass , 562 Pa. 187, 192 n 4, 754 A.2d 655, 658 n 4 (2000) ().2 Several state courts have also noted (1) a state law preference for searches made pursuant to a warrant, and (2) that a properly drafted anticipatory search warrant advances that preference by providing "independent pre-search review by a neutral magistrate, while at the same time providing police with the ability to respond quickly to ongoing criminality." Id. at 194, 754 A.2d at 660 ; Alvidres v. Superior Court , 12 Cal. App. 3d 575, 581, 90 Cal. Rptr. 682, 686 (Cal. Ct. App. 1970) (). With that background in mind, we turn to Oregon's constitution.
Couey v. Atkins , 357 Or. 460, 490-91, 355 P.3d 866 (2015) (internal quotation marks omitted). In the specific case of Article I, section 9, the absence of a meaningful historical record surrounding the adoption of that measure has increased the weight that the text itself and the case law interpreting that text must carry. See State v. Hemenway , 353 Or. 129, 156-57, 295 P.3d 617, vac'd , 353 Or. 498, 302 P.3d 413 (2013) (Landau, J., concurring).3
Article I, section 9, of the Oregon Constitution provides:
"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the...
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State v. Lee
...in original.) The Court of Appeals affirmed the trial court in a divided opinion that did not address the statute. State v. Lee, 319 Or.App. 191, 509 P.3d 689 (2022). The majority reviewed Grubbs, as well as state courts' treatment of anticipatory warrants under state constitutions. See, e.......
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