State v. Sparks
| Decision Date | 26 November 2014 |
| Docket Number | 201121071,A150323. |
| Citation | 267 Or.App. 181,340 P.3d 688 |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Sean David SPARKS, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
Sarah Peterson argued the cause for appellant. With her on the briefs was Metcalfe & Peterson LLC.
Andrew M. Lavin, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.
Defendant appeals a judgment of conviction for multiple drug offenses and two counts of first-degree child neglect stemming from an illegal marijuana-growing operation that he conducted at three residences.1 Before trial, defendant moved to suppress the evidence that police discovered at the residences. The trial court denied that motion. After the state's case-in-chief, defendant moved for judgments of acquittal on several of the charges. The trial court denied those motions as well. Defendant also objected to one of the state's proposed jury instructions. The court overruled that objection and delivered the disputed instruction. Defendant raises eight assignments of error challenging the above rulings. For the reasons below, we reverse and remand on defendant's convictions for first-degree child neglect, ORS 163.547, reverse the conviction for possession of LSD, ORS 475.840, remand for resentencing, and otherwise affirm.
The parties do not dispute the following relevant facts. Eugene Police Detective Lowe, a narcotics enforcement officer, began investigating defendant after observing him loading numerous bags of potting soil into a rented van. Lowe followed defendant to a residence on Beech Place and began regular surveillance of that residence. Lowe observed two cars and a minivan regularly parked at the residence. One of the cars was registered to defendant, the second was registered to an individual named Kimm, and the minivan was registered to defendant's deceased uncle.
Assistant District Attorney Montgomery signed and issued a “grand jury subpoena” duces tecum to the custodian of records of the Eugene Water & Electric Board (EWEB).
The subpoena further specified, “MANDATORY APPEARANCE IS NOT REQUIRED IF RECORDS PROVIDED. ” (Capitalization and italics in original.) The subpoena concluded with the statement that “[t]his information being requested is pursuant to an official investigation being conducted by Detective [ ] Lowe of the Eugene Police.”
Lowe received the subscriber and usage information from EWEB several days later. The usage information consisted of the number of kilowatts used each month at each address. Lowe later stated in an affidavit that the requested records demonstrated that “[d]uring the last 24 months utility usage has remained unusually high” at both addresses and that “it is extraordinary for a residence the size of either of the above locations to be generating this much power usage and not be involved in the manufacture of marijuana.”
Lowe later observed the minivan one night at the East 32nd residence, which had previously appeared vacant, with the curtains always closed. Lowe stated that, on the night that he noted the minivan in the driveway, he also observed defendant exiting the residence and “the overwhelming odor of fresh marijuana” around and emanating from the location.
The following day, Lowe called the Oregon Medical Marijuana Program (OMMP) and learned that Kimm was a registered patient permitted to grow for her own use and that defendant was registered as her caregiver. As Kimm's caregiver, defendant was allowed to transport and administer marijuana to Kimm but was not allowed to grow marijuana. Neither the Beech Place home nor the East 32nd residence was registered as a grow site. However, Kimm's previous residence, on Ferry Street, was registered as a grow site, with Kimm as the only grower and patient. Lowe also discovered that defendant had previously been convicted in Lane County of unlawful delivery of marijuana.
Lowe submitted an affidavit setting forth the facts above and requesting warrants to search the Beech Place and East 32nd residences as well as defendant's and Kimm's person for evidence of an illegal marijuana manufacture and distribution enterprise. Lowe did not seek authorization to search the Ferry Street residence because it was registered with OMMP as Kimm's marijuana-growing site. The court issued the warrants.
Lowe and four other plainclothes officers served and executed the search warrants, beginning at the Beech Place residence. When defendant opened the door, Lowe immediately smelled the “overwhelming odor” of marijuana “just waft out of the house.” Kimm and her two children (ages 11 and 14) were present at the Beech Place residence during the search.
Lowe interviewed defendant while officers searched the premises. Lowe asked defendant “if he was still using the home on Ferry Street for purposes of growing marijuana,” and defendant responded, “yes.” Lowe then asked if he could have defendant's consent to search the Ferry Street residence. Defendant consented.
The search of the Beech Place residence revealed 33 mature marijuana plants growing in a room constructed within the attached garage. Lowe also found growing equipment and supplies in the garage. In a closet in the master bedroom, police found large bags of packaged marijuana buds, various jars with marijuana material, a digital scale, a small bag of psilocin mushrooms, and a bowl containing marijuana residue. Police also discovered some hashish in the bedroom, as well as a vial of LSD in the drawer of a dresser in the bedroom. There were postal shipping boxes in one of the bedrooms, which the evidence suggested defendant used to ship marijuana to customers.
Lowe later testified that “there were locks on the door” to the garage and that defendant “had to open the locks on the door to let” Lowe in to the garage. Lowe also stated that “the children had no keys to the locks to the garage[.]” Both the door to the master bedroom and the door to the closet were open when police searched the home. Kimm stated that the door to the master bedroom was not locked when she was home and that the children had access to the bedroom. Kimm also acknowledged that there was no lock on the closet and that she and defendant normally stored marijuana in that closet.
Before trial, defendant moved to suppress the evidence obtained in the searches. Defendant asserted that the police needed a warrant to obtain the EWEB records because he had a privacy right in those records. Because the police did not get a warrant (and no exception justifying a warrantless search applied), defendant reasoned, they conducted an illegal search when they obtained the power usage information. Defendant also argued that the court should suppress the power usage records for the independent reason that the subpoena was unlawful. In defendant's view, without the power usage information that Lowe included in his affidavit to the court requesting the search warrants, there was not probable cause to support the warrants. Defendant argued in the alternative that, even with the power usage information, the affidavit failed to establish probable cause. Finally, defendant contended that the illegality of the Beech Place search vitiated any consent that he gave to search the Ferry Street residence. At the hearing on defendant's motion, defendant elicited testimony from Montgomery tending to establish that Montgomery had not presented defendant's case to the grand jury that was sitting at the time and that, therefore, the grand jury had not directed Montgomery to issue the subpoena for the EWEB records.
The state opposed defendant's motion, arguing that he had no privacy right in the usage records, that the subpoena was lawful, that Lowe's affidavit established probable cause to issue the search warrants, and that defendant's consent to search the Ferry Street residence was valid. The trial court agreed with the state, rejecting all of defendant's arguments.
At trial, Kimm testified that she lived at the Beech Place home with defendant and her two children. She stated that defendant was not the children's father and that he had been her boyfriend for the past four years. According to Kimm, defendant “sometimes” picked up the children after school and dropped them off places, “occasionally * * * baby-s[a]t” them, and took care of them when Kimm worked out of the home, including at times during the month of February 2011. Kimm also testified that defendant cared for her children once for “[a] couple days” when Kimm traveled to Hawaii but did “not really” “have any say over what they did during that time period[.]” Kimm stated that defendant had “zero control” over the children; that, although “he might watch them from time to time[,]” “[h]e has no say in what they do and how they live their lives.” In Kimm's view, because her name was on the lease for the Beech Place residence, defendant lacked authority to keep her or her children from staying there.
At the close of the state's case, defendant moved for judgments of acquittal on the two counts of first-degree child neglect, ORS 163.547(1...
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