State v. Miller, 084664FE; A145566.

• Decision Date: 16 January 2013
• Docket Number: 084664FE; A145566.
• Citation: 254 Or.App. 514,295 P.3d 158
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Jeffrey David MILLER, Defendant–Appellant.
• Court: Oregon Court of Appeals

254 Or.App. 514

295 P.3d 158

STATE of Oregon, Plaintiff–Respondent,

v.Jeffrey David MILLER, Defendant–Appellant.

084664FE; A145566.

Court of Appeals of Oregon.

Argued and Submitted on Oct. 31, 2011.

Decided Jan. 16, 2013.

Kali Montague, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jamie Contreras, Assistant Attorney General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Katherine H. Waldo, Senior Assistant Attorney General.

Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and DUNCAN, Judge.

HASELTON, C.J.

Defendant appeals a judgment of conviction for three counts of delivery of methamphetamine (Counts 2 to 4) and one count each of possession of methamphetamine (Count 5), possession of marijuana (Count 6), possession of a controlled substance in Schedule II (Count 7), and possession of a controlled substance in Schedule I (Count 8). In addition, that judgment “[a]llowed” criminal forfeiture (Count 9).¹ On appeal, defendant contends that the trial court erred in denying his request for self-representation. Defendant further contends that the trial court erred in denying his motion to suppress evidence obtained during a warranted search of his residence and vehicle because the affidavit in support of the warrant was insufficient in certain respects. As amplified below, we conclude that the trial court erred with respect to the preclusion of self-representation, which requires an omnibus reversal and remand as to all counts, except Count 1 on which defendant was acquitted. Further, for purposes of guidance on remand, we conclude that the trial court erred, in part, in denying suppression—and, specifically, erred in denying suppression of evidence obtained from defendant's residence, but did not so err with respect to evidence obtained from defendant's vehicle.

As we explained in State v. Duarte/Knull–Dunagan, 237 Or.App. 13, 21–22, 238 P.3d 411,rev. den.,349 Or. 370, 246 P.3d 482 (2010), “when a defendant seeks to suppress evidence from a search authorized by warrant, contending that the information in the predicate warrant did not establish probable cause,” our review “function is limited to determining whether, given the uncontroverted facts in the affidavit and reasonably derived inferences, the issuing magistrate reasonably ‘could have concluded that the affidavit (excluding the excised parts) established probable cause to search * * *.’ ” (Omission in Duarte/Knull–Dunagan ) (quoting State v. Castilleja, 345 Or. 255, 265, 192 P.3d 1283,adh'd to on recons., 345 Or. 473, 198 P.3d 937 (2008)). In exercising that function, we view the predicate affidavit “in a commonsense, nontechnical and realistic fashion” with “doubtful cases * * * to be resolved by deferring to an issuing magistrate's determination of probable cause.” State v. Wilson, 178 Or.App. 163, 167, 35 P.3d 1111 (2001) (internal quotation marks omitted). Consistently with those principles, we state the content of the affidavit on which the search warrant was predicated.

On November 6, 2008, Medford Police Department Detective Hatten executed an affidavit in support of a warrant to search defendant, his 2001 Hyundai sedan, and his residence for “evidence of the possession, manufacture, and delivery of the controlled substance methamphetamine.”

Hatten began by averring that defendant's “residence” was “at 1844 West 8th Street # 3.” He noted that defendant had been convicted in 1977, 1999, and 2000 of drug-related offenses and referenced out-of-state arrests as well.

Hatten then recounted the facts surrounding three controlled drug buys. The first two controlled buys occurred on separate occasions, within the two weeks preceding the request for the warrant, at an undisclosed location in Jackson County. Specifically, a confidential reliable informant (CRI) purchased “a small amount of methamphetamine from [defendant] through an [unnamed] unwitting informant [ (UI) ].” According to Hatten, before both controlled buys, he and two other detectives gave the CRI “money with recorded serial numbers and a radio transmitter” and searched “the CRI's person and vehicle for controlled substances and unaccounted for money” but found none. The detectives observed the CRI pick up and eventually drop off the UI at another location. At that point, the detectives maintained surveillance on both the UI and CRI. They observed defendant—who they identified “through a booking photo”—arrive “in his black 2001 Hyundai * * * and contact the [UI].” ² Thereafter, the UI returned to the CRI's location and gave the CRI “the purchased methamphetamine.” The detectives then observed the CRI drop off the UI and followed the CRI to a designated meeting site. There, they retrieved the purchased substance, which field-tested positive for methamphetamine. The officers again searched “the CRI's person and vehicle for additional controlled substances and unaccounted for money” but found none.

The third controlled buy occurred within 72 hours before Hatten's request for the warrant. Again, the CRI “purchased a small amount of methamphetamine from [defendant] through an unwitting informant” at an undisclosed location. In general, the circumstances of the third controlled buy were similar to those of the first two. However, there were two significant distinctions.

First, before the controlled buy, two officers “set up surveillance on [defendant's] residence at 1844 West 8th Street # 3” and “observed [defendant's] black Hyundai sedan * * * parked in the apartment complex driveway in front of the 1844 section.” The officers observed defendant—whom they identified through a booking photo—leave “apartment # 3” and “walk directly to his black Hyundai sedan.” The officers followed defendant to the location where he met with the UI. After the controlled buy, the officers followed defendant “back to his residence at 1844 West 8th Street.”

Second, Hatten indicated that the CRI recounted two specific statements that the UI had made to him, attendant to the controlled buy, that are pertinent to the issues on appeal. Specifically, Hatten averred that the CRI

“told us that he/she asked the [UI] after the controlled buy if the CRI could purchase at least one-quarter ounce of methamphetamine from the same drug source that the [UI] had just got the methamphetamine from within the next couple of days. The CRI stated to me that the [UI] told the CRI that would be no problem. The CRI stated to me that the [UI] told the CRI that they could purchase anything they wanted through the drug source identified as being [defendant].”

(Emphasis added.) Based on his “training and experience,” Hatten explained that “one-quarter ounce of methamphetamine is more than a person would consume in a seventy-two hour period” and that “one-quarter ounce of methamphetamine is [a] dealer amount of methamphetamine that is commonly broken down into smaller amount[s] of methamphetamine to be sold [to] customers.”

Finally, in the balance of his affidavit, Hatten included other averments based on his training and experience in drug-enforcement efforts. In general, Hatten referred to his 21 years of experience in law enforcement, his work with the “Jackson County Narcotics Enforcement Team (JACNET),” and his “special training in controlled substance investigations.”

However, his averments primarily pertained to common practices of those who possess and sell controlled substances. In particular, Hatten stated:

“I also know that, based upon my training and experience, persons who possess cocaine [ sic], possess it both for their own use and to sell. Persons who sell cocaine [ sic] will often keep records so they can keep track of their profits and whom they sell to. These records are often hand written by the suspect or suspects, persons who possess and sell cocaine [ sic] will also have packaging material, cutting agents and scales used to package controlled substances. * * *

“ * * * *

“I know from my training and experience that people often keep controlled substances, scales, packaging material, cutting agents and currency from drug sales in a safe or other type locking container.”

Hatten further described how vehicles are used by those involved in drug transactions. Specifically, he explained:

“Items of value including drugs, currency, records of sales, or purchase of drugs are often kept in automobiles by persons trafficking in control[led] substances. This enables the trafficker to quickly depart a residence and ensure that the necessary tools are readily accessible for the purpose of selling or purchasing drugs. I have often seized such items from vehicles seized at the scene of a residence being searched for drugs.”

As noted, based on Hatten's affidavit, the court issued a search warrant on November 6, which was executed later the same day, yielding inculpatory evidence in both defendant's residence and the vehicle. Defendant was charged with a variety of drug-related offenses.

Thereafter, he filed a motion to suppress the evidence obtained during the warranted search, as well as derivative evidence, on the ground that the affidavit in support of the warrant “lacked probable cause.” ³ In supportof that contention, and as pertinent to the issues on appeal, defendant pointed to two deficiencies in the affidavit.

First, defendant pointed to two of the UI's statements that were included in the affidavit— viz., (1) that it “would be no problem” to obtain at least one-quarter ounce of methamphetamine from defendant within a couple of days after the third controlled buy; and (2) that the CRI and UI “could purchase anything they wanted through the drug source identified as being [defendant].” Defendant contended that the affidavit did not demonstrate that those two statements were credible or reliable or the UI's basis of knowledge...