Matt TaylorREDACTED • REDACTED • REDACTED • taylor.matthew.robert@gmail.com

OSB #053930

Writing Sample

The following writing sample is excerpted from a motion to controvert a search warrant and motion to suppress evidence. This motion involved an attempt to avoid the consequences of the “plain sight” doctrine. During the hearing on this motion additional evidence was presented by the state, which resulted in this motion being denied.

I. FACTS

On June 27, 2007, Detective Bon Stewart of the Ashland Police Department applied for and obtained a search warrant to search the apartment where Defendant had been recently residing. The warrant authorized a search for evidence relating to the crimes of Burglary and Theft by Receiving. The affidavit in support of the warrant relied on observations of a chair in the apartment at 135 Lincoln Street, where the defendant had spent the previous two nights. The Honorable Lorenzo A. Mejia found that probable cause existed to grant the search warrant based on the affidavit.

The affidavit relayed the following facts: Detective Stewart asked the tenants for consent to search the apartment. After the tenants refused to consent to a search Detective Stewart started to leave the apartment complex when he learned that the landlord was on his way to speak with the tenants. Detective Stewart peered over the landlord’s shoulder while the landlord stood at the tenant’s doorway. Detective Stewart was able to observe a wooden kitchen chair that matched the set of chairs from the victim’s residence. According to Detective Stewart the chair appeared to be out of place.

Detective Stewart executed the search warrant and recovered various items of property that had been reported stolen. Subsequent to the search of the apartment Detective Stewart focused his investigation on the tenants of the apartment and their guest, defendant. After multiple phone calls to the tenants Detective Stewart received a confession by voicemail from an individual purporting to be defendant. Defendant has been indicted for Burglary in the First Degree and Theft in the First Degree by Receiving.

II. ISSUES

A. The affidavit relies on evidence unlawfully obtained.

B. Even with the unlawfully obtained observation the affidavit does not provide a sufficient factual basis to support probable cause for the search warrant.

C. Suppression is the appropriate remedy.

III. ARGUMENT

A. The affidavit relies on evidence unlawfully obtained.

Where an individual takes measures to protect his privacy, even if those measures are imperfect, the government is prohibited from peering into the individual’s residence. State v. Fortmeyer/Palmer, 178 Or.App. 485, 492 (2001). Article 1, Section 9 of the Oregon Constitution and The Fourth Amendment to the U.S. Constitution protect the individual from unreasonable searches by the state. If the government action is not so intrusive as to constitute a search then that action is not an unlawful search. Fortmeyer at 489. Observing plainly visible evidence, while standing in lawful vantage point, is not an illegal search. Id. However, if the individual has made efforts that require the law enforcement officer to engage in unusual conduct in order for the officer to be able to make the observation from the lawful vantage point, then the observation is an unlawful search. Id. at 492.

The Court of Appeals in Fortmeyer, provides three different factual scenarios that clarify when the “plainly visible” exception does and does not apply to an officer looking into a residence from the outside. In Fortmeyer the court found that marijuana viewed by an officer leaning down to look into a basement window that had been mostly blocked by a piece of cardboard constituted a search. Id. at 492. In Fortmeyer the court followed State v. Gabbard, 129 Or.App. 122, rev. denied 320 Or. 131 (1994), and distinguished State v. Corra, 88 Or.App. 339 (1987). In Gabbard, the court found that the six foot tall officer conducted a search when he leaned over to look through a crack in the siding of a shed about four and a half feet off the ground. Fortmeyer at 491. In contrast, Corra found that an officer standing on a rock to look over a fence was not a search because “many people could have seen over the fence without standing on the rock.” Fortmeyer at 490. Fortmeyer ultimately makes sense of the two different conclusions by focusing on the “extra, albeit imperfect, measures” taken by the defendant. Id. at 492.

The Court of Appeals has provided additional clarification by distinguishing Fortmeyer in two separate cases involving officers looking into a partially obstructed window. In State v. Rodriguez-Ganegar, 186 Or.App. 530 (2003), the officer was at a motel investigating a report of a suspicious person. While walking along the second floor exterior walkway, he saw into a window where there was a gap between the curtains that extended from the top to the bottom of the window. The individuals in the motel room were packaging cocaine. The officer was able to see “quite a bit” of the hotel room while standing at a normal distance from the window on the outside walkway. He happened to look in the direction of the window because he heard a banging noise. Rodriguez found that the defendants had not made any particular effort to guard their privacy and the officer had not made any special effort to observe their activities. Id. at 538. The Court of Appeals has reached a similar conclusion in a case involving blinds. State v. Castillo-Salgado, 186 Or.App. 605 (2003). In Castillo the officers were approaching an apartment and had to walk past the kitchen window adjacent to the front door. The blinds had a triangular gap where the blinds were bent from people peering out. The officer was able to see into the window without stooping or standing at a particular angle. His attention was drawn to the window by motion within the apartment. Again the court found that the officer had not made any special effort to see inside the residence, and so

his actions were lawful. Id. at 611. In both cases: law enforcement gained sight into the residence with no special efforts; the defendants had failed to take any precautions to safeguard their privacy; and the defendant’s conduct actually drew the officer’s attention.

The present case involving the occupants of 135 Lincoln Street and Detective Stewart is the same as those cases where the court has found special efforts were made by the parties involved. Unlike in Castillo and Rodriguez, Detective Stewart looked into the residence because he was actively investigating the residents, not because they had made noises or movements that happened to draw his eyes. Just as the police in Fortmeyer and Gabbard had to crouch down and sneak a look through an obstructed window or a crack close to the ground, Detective Stewart had to use a ploy to see into the residence. As he was headed to his car, he turned around, followed the landlord, and looked over the landlord’s shoulder. Just as the occupants in those cases made efforts to keep prying eyes from seeing their activities, Mr. Yaeger’s hosts tried to exclude Detective Stewart from seeing into their apartment. Indeed they went even further than the occupants in those cases by explicitly and verbally telling Detective Stewart they did not want him looking around inside their apartment. Because the occupants made special efforts to exclude Detective Stewart, and Detective Stewart made special efforts to gain sight into the apartment, Detective Stewart’s observation of the chair was a search and an invasion of the privacy of the occupants of 135 Lincoln Street.

A search conducted without a warrant is presumed to be unreasonable. State v. Atkin, 190 Or App 387, 390 (2003). The state bears the burden of proving the lawfulness of a warrantless search. State v. Stevens, 311 Or 119, 126 (1991); State v. Arnold, 115 Or App 258, 261 (1992), rev. den. 315 Or 312 (1993). The prosecution must prove by a preponderance of the evidence that the initial search of 135 Lincoln Street was valid. ORS 133.693(4).

When an application for a search warrant includes constitutionally tainted information, the correct action is for the magistrate and reviewing court to excise from the application all such information and to determine whether the remaining information is sufficient to establish probable cause. State v. Binner/Walker, 128 Or App 639 (1994); State v. Hitesman/Page, 113 Or App 356, 359, rev. den. 314 Or 574 (1992); State v. Christiansen, 78 Or App 594, 596-597, rev. den. 301 Or 445 (1986). In the case at bar, when you excise all information obtained from the prior unlawful search, the affidavit in support of the search warrant does not establish probable cause.

B. Even with the unlawfully obtained observation the affidavit does not provide a sufficient factual basis to support probable cause for the search warrant.

A search warrant may issue only if it is supported by oath or affirmation showing the existence of probable cause. Article I, Section 9 of the Oregon Constitution and the Fourth Amendment to the United States Constitution. The affidavit in support of the warrant must state competent facts sufficient to enable an impartial magistrate to independently determine that probable cause exists to believe the evidence of crime will presently be found in the place or places sought to be searched. ORS 133.545(4); State v. Ingram, 251 Or 324 (1968); State v. Dunavant, 250 Or 570 (1968). As the Supreme Court pointed out in State v. Villigran, 294 Or 404 (1983), “[t]he relevant inquiry is whether the affiant has established

probable cause to believe that particular evidence will be found in a particular location.” See also ORS 133.555(2).

"Probable cause" means the facts underlying the warrant must lead a reasonable person to believe that seizable evidence will “more-likely-than-not” be found in the location to be searched. Probable cause exists to search a house for evidence of manufacturing of controlled substances where the house is on the same private property as a marijuana grow, is in an unpopulated area, and is surrounded by a creek and corporate owned timber land. State v. Anspach, 298 Or 375 (1984). Even if some of the information is “stale” or dated the facts viewed as a whole may support probable cause. State v. Gale, 105 Or App 489 (1991). A “well warranted suspicion” is not probable cause because a suspicion, no matter how well-founded does not rise to the level of probable cause. For example, no probable cause exists to search an intoxicated transient sleeping under a bridge nearby the sight of a recent burglary in a rural area. State v. Verdine, 290 Or 553 (1991). Nor is there probable cause to search person walking down the street in the area of a theft of a VCR carrying a plastic bag containing a VCR. State v. Spencer, 101 Or App 425 (1990). A lengthy affidavit involving other associated residences with only three references to illegal activity at the particular residence in question does not support the issuance of a search warrant. State v. Corpus-Ruiz, 127 Or App 666 (1994).

In the case at hand, the search warrant was based on a well warranted suspicion, but not probable cause. Similar to the transient in Verdine and the man carrying the plastic bag in Spencer, defendant’s proximity to the incident of the burglary and his association with a residence containing a piece of property similar in appearance to a stolen item naturally aroused Detective Stewart’s suspicion. In the case of Anspach, with the marijuana grow next to the home in the wilderness, it was not plausible that the marijuana was being cultivated by trespassers with a distant residence. In defendant’s case there is room for an explanation for the chair happening to be similar—just as in Spencer we are dealing with a common item only truly distinguishable by a serial number. The chair involved was a generic, common, wooden kitchen chair of the sort found in countless residences, especially residences such as the modest apartment identified in the search warrant. Also, unlike Gale, in this case we are not dealing with a large collection of weak pieces of evidence that add up to probable cause in their entirety, but rather a single observation of a common wooden chair in an apartment nearby to where a burglary happened involving a similar chair. Just as in Corpus-Ruiz, the circumstances and associations involved here do appear suspicious, yet the facts recited in the affidavit do not add up to probable cause. When the affidavit is insufficient to support the warrant, the search performed pursuant to the warrant is unlawful; and any items seized must be suppressed. State v. Evans, 119 Or.App. 44 (1993).

C. Suppression is the appropriate remedy.

Exclusion of evidence is the proper remedy for a violation of a person’s constitutional rights pursuant to Article I, section 9, of the Oregon Constitution. State v. Valdez, 277 Or 621 (1977); State v. Davis, 295 Or 227 (1983); State v. Tanner, 304 Or 312 (1972). “Oregon law permits the exclusion of evidence . . . when exclusion is required by the United States or Oregon Constitutions.” State v. Thompson-Seed, 162 Or App 483 (1999). Any and all evidence derived from an unlawful search and seizure must

be suppressed as “fruit of the poisonous tree.” State v. Warner, 284 Or 147 (1978). This includes any and all oral evidence. Dunaway v. N.Y., 442 U.S. 200 (1979); State v. Olsen, 287 Or 157 (1979).

IV. CONCLUSION

The state stopped short of gathering sufficient information to support the search warrant, and the most important piece of information (the observation of the chair) was obtained unlawfully. By looking into the apartment the state conducted an illegal search in violation of both the Oregon and U.S. Constitutions. By searching pursuant to an invalidly granted search warrant additional constitutional violations occurred. The court should suppress any and all evidence seized and/or discovered as a result of the two searches performed at 135 Lincoln Street, Apartment 19; including any statements left on Detective Stewart’s voice mail system as a result of his repeated inquiries of the residents of apartment 19 regarding the seized property.

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be suppressed as “fruit of the poisonous tree.” State v. Warner, 284 Or 147 (1978). This includes any and all oral evidence. Dunaway v. N.Y., 442 U.S. 200 (1979); State v. Olsen, 287 Or 157 (1979).

IV. CONCLUSION

The state stopped short of gathering sufficient information to support the search warrant, and the most important piece of information (the observation of the chair) was obtained unlawfully. By looking into the apartment the state conducted an illegal search in violation of both the Oregon and U.S. Constitutions. By searching pursuant to an invalidly granted search warrant additional constitutional violations occurred. The court should suppress any and all evidence seized and/or discovered as a result of the two searches performed at 135 Lincoln Street, Apartment 19; including any statements left on Detective Stewart’s voice mail system as a result of his repeated inquiries of the residents of apartment 19 regarding the seized property.

For additional information please view my Linked In profile: www.linked.com/pub/matttaylor/1/409/150