State v. Munro

• Decision Date: 11 August 2004
• Citation: 96 P.3d 348,194 Or.App. 538
• Parties: STATE of Oregon, Respondent, v. Conrad Briscoe MUNRO, Appellant.
• Court: Oregon Court of Appeals

96 P.3d 348

194 Or.App. 538

STATE of Oregon, Respondent, v. Conrad Briscoe MUNRO, Appellant.

020243; A120381.

Court of Appeals of Oregon.

Argued and Submitted March 16, 2004.

Decided August 11, 2004.

Andy Simrin, Salem, argued the cause and filed the brief for appellant.

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

Before EDMONDS, Presiding Judge, and WOLLHEIM and SCHUMAN, Judges.

SCHUMAN, J.

Defendant appeals his conviction for encouraging child sexual abuse in the second degree. He assigns error to the denial of his motion to dismiss that charge on statutory former jeopardy grounds and to the denial of his motions to suppress a videotape and its contents showing child pornography. We conclude that the court correctly denied his former jeopardy motion and his motion to suppress the videotape itself but that the court should have granted his motion to suppress the contents of the videotape. We consequently reverse and remand for a new trial.

In early June 2000, Clackamas County police officers received information that defendant was using marijuana with teenage boys in his apartment, selling them marijuana, and "grooming" the boys for sexual activity. After an investigation, Officer Andrews prepared an affidavit for a search warrant. The affidavit recited that he knew "from [his] training and experience" that "[p]ersons who possess and distribute marijuana and other controlled substances often keep records pertaining to their illegal narcotic activities. These include * * * video films[.]" It further recited that he had probable cause to believe that "evidence of the crimes of Possession of a Schedule I Controlled Substance, and Delivery of a Schedule I Controlled Substance," including "business records such as * * * videotapes" were located in defendant's apartment. Based on the affidavit, a judge issued a warrant authorizing the search of defendant's apartment for, among other things, videotapes. The warrant also authorized seizure of "the aforesaid objects of the search." The judge issued the warrant on June 9, 2000, and the officers executed it the same day. Although at the time that the officers applied for the warrant they had heard allegations of sexual activity involving defendant and a boy, the warrant application sought, and the judge granted, permission to search for evidence only of marijuana crimes, not sex crimes.

Pursuant to the warrant, officers searched defendant's apartment and seized, among other things, a Beta videotape, a dozen VHS videotapes, and some marijuana. When they subsequently tried to play the Beta videotape, it appeared to be blank. They then returned it to the property room. Thereafter, in May 2001, defendant was charged with possession of a controlled substance. He was ultimately convicted on that charge in August 2001.

Meanwhile, on June 5, 2001, after defendant had been charged with the marijuana crime but before he was convicted, Sergeant Coates of the Clackamas County Sheriff's Department received information that the Beta videotape "probably [contained] child pornography." Without obtaining a new warrant, he attempted to view the videotape again, but again it appeared to be blank. Coates then took it to technicians at KOIN-TV. They, too, were unable to see anything on it, but they referred Coates to a shop in Gresham that succeeded in copying the content of the Beta videotape into VHS format. Coates then viewed the videotape and saw "what appeared to be young boys involved in sexual activity." The next month, police arrested defendant and he was charged with encouraging the sexual abuse of a child, ORS 163.686, on the theory that he possessed child pornography while knowing that its creation involved child abuse. He moved to dismiss the charge on statutory and constitutional former jeopardy grounds; the court denied that motion. He also moved to suppress the videotape and its contents; those motions, too, were denied. This appeal ensued.

Defendant argues first that the court should have granted his motion to dismiss under ORS 131.515(2), which provides:

"No person shall be separately prosecuted for two or more offenses based upon the same criminal episode, if the several offenses are reasonably known to the appropriate prosecutor at the time of commencement of the first prosecution and establish proper venue in a single court."

To succeed under this statute,¹ defendant must establish three elements: (1) the separate prosecutions were for two or more offenses that were part of the same criminal episode; (2) the offenses were known to the prosecutor when the first prosecution was commenced; and (3) venue was proper in a single court. State v. Fore, 185 Or.App. 712, 715, 62 P.3d 400 (2003). The trial court found as fact that the prosecutor did not know of the second offense when the marijuana prosecution began in May 2001. We are bound by that finding if any evidence in the record supports it. State v. Knowles, 289 Or. 813, 823-24, 618 P.2d 1245 (1980). Testimony indicates that the prosecutor did not learn of the child pornography on the videotape until late July 2001, over two months after prosecution of the marijuana charge commenced in early May. Even if we could impute the police officers' knowledge to the prosecutor, they did not learn of the pornography until June 2001—again, after the marijuana prosecution began. We therefore reject defendant's first assignment of error.²

Defendant next assigns error to the trial court's denial of his pretrial motion to suppress the Beta videotape. He argues that the affidavit in support of the warrant application to search defendant's apartment did not establish probable cause that videotapes containing drug transaction records would be found there.

This court's inquiry into the sufficiency of an affidavit supporting a search warrant involves two questions: "(1) whether there is reason to believe that the facts stated are true, and (2) whether the facts and circumstances disclosed by the affidavit, if true, are sufficient to establish probable cause to justify the search requested." State v. Villagran, 294 Or. 404, 408, 657 P.2d 1223 (1983). Here, there is no dispute about the first question; defendant withdrew his motion to controvert any of the statements in the affidavit. Accordingly, our inquiry is limited to whether the uncontroverted facts in the affidavit establish probable cause to search defendant's apartment. State v. Goodman, 328 Or. 318, 325, 975 P.2d 458 (1999).

"The probable cause requirement means that the facts upon which the warrant is premised must lead a reasonable person to believe that seizable things will probably be found in the location to be searched." State v. Anspach, 298 Or. 375, 380-81, 692 P.2d 602 (1984). "When addressing probable cause issues in cases where a warrant was issued, we confine our analysis to a `common-sense view of the affidavit' filed by the police officer." State v. Moylett, 313 Or. 540, 552, 836 P.2d 1329 (1992) (quoting State v. Coffey, 309 Or. 342, 346, 788 P.2d 424 (1990)).

Lieutenant Andrews of the Clackamas County Sheriff's Department prepared the affidavit in support of the search warrant. That affidavit contained substantial information about the sale of marijuana in defendant's apartment and included the following references to videotapes:

"I know from my training and experience the facts, practices and circumstances [that] are common to the delivery and possession of marijuana.

"* * * * *

"Persons who possess and distribute marijuana and other controlled substances often keep records pertaining to their illegal narcotic activities. * * * These records include written and electronically stored business documents, ledgers, address books, computer files and software, telephone toll records, notes, messages, photographs and video films, and encrypted memoranda indicating drug debts/sales."

(Emphasis added.) Because defendant withdrew his motion to controvert the affidavit, Andrews's assertions are uncontradicted and must therefore be accepted. Further, as the state points out, the statements have a reasonable basis in fact:

"It is far from unusual for defendants to have taken photographs of their drugs and/or their drug operations which serve as records of their criminal operations just as much as a ledger book does. For example, in State v. Forseth, the police found during a search of a house `a photograph depicting defendant holding a small piece of glass with five rows of white powder on it. In the picture, defendant had a straw up to his nose, the other end of which touched the white powder.' 302 Or. [233,] 235[, 729 P.2d 545 (1986)]. In State v. Maxfield, 133 Or.App. 371, 373, 891 P.2d 1342,modified on recon. [,] 134 Or.App. 542, 896 P.2d 581 (1995), the police were called by a photo store employee regarding two rolls of film the defendant had brought to be developed that `depicted high-quality marijuana in a growing state,' pictures of buildings and persons, two pictures of [the] defendant, and a picture of someone standing next to a U.S. Forest Service water-pumper truck. In State v. Saude, 95 Or.App. 428, 430, 769 P.2d 784 (1989), the police found photographs during a search of the defendant with three others inside the garage containing a methamphetamine laboratory and defendant `standing in front of the locked cabinets containing the methamphetamine production material.' It is not unusual at all for photographic records of drug crimes to be found at a defendant's residence."

Read in context and in a commonsense manner, the statements in the affidavit were sufficient to allow a reasonable person to infer that videotaped evidence of the crime of possession of a controlled substance would be found in defendant's apartment. Defendant's second assignment of error, therefore, lacks merit.

Finally, defendant argues that,...