SEARCH AND SEIZURE OF APARTMENTS FOR DRUGS IN WASHINGTON AND OREGON
March 26, 2016
Recently, in September, 2015, The U.S. Court of Appeals Ninth Circuit found that in a raid on an apartment in Montana based on a search warrant for a drug investigation, the 1 officers lacked probable cause to search defendant’s apartment; 2 search warrant did not describe items to be seized with sufficient particularity; and the application of exclusionary rule was warranted. U.S. vs. Howard Oran Embry 625 Fed.Appx. 814 (2016).
The facts in the case were such that the police warrant was based on an anonymous tip that drugs (Marijuana) was being held at a certain apartment location in Montana. The court found that “A search warrant is supported by probable cause if the issuing judge finds that, given all the circumstances set forth in the affidavit before him … there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Underwood, 725 F.3d 1076, 1081 (9th Cir.2013) (alteration in original) (internal quotation marks omitted). “We give great deference to an issuing judge’s finding that probable cause supports a warrant and review such findings for clear error.” Id. at 1081 (internal quotation marks omitted).
Police officers had no reason other than the uncorroborated, anonymous tip to suspect that Embry was in recent receipt of a trafficking amount of marijuana. “[A]n anonymous tip is entitled to little or no weight in a probable cause evaluation if it is entirely uncorroborated and lacks any indication of reliability.” United States v. Clark, 31 F.3d 831, 834 (9th Cir.1994) (emphasis added).
he anonymous tip was first conveyed to Embry’s apartment manager who then relayed the information to the police officers. The anonymous tip conveyed a paucity of information. The tip did not mention Embry by name, state how the drugs arrived at his apartment, or explain how the informant acquired this information. The anonymous tip did not describe any future movements that could be corroborated and the police officers did not corroborate the allegations made in the tip.
When the officers arrived at Embry’s apartment they employed what they call the “knock and talk” approach. In response, Embry opened the door of his apartment and he engaged in a conversation with the officers. Embry acknowledged that he had a medical marijuana card and possessed a personal-use amount of marijuana, one ounce or less. The officer’s “knock and talk” does not constitute independent corroboration because Embry’s confirmation that he had a medical marijuana card and possessed a personal-use amount of marijuana is not sufficient to confirm the anonymous informant’s statement concerning ten pounds of marijuana. See Clark, 31 F.3d at 834 (“Mere confirmation of innocent static details in an anonymous tip does not constitute corroboration.”); see also Underwood, 725 F.3d at 1082 (holding that officers’ knowledge of personal-use amount of marijuana “certainly does not indicate that [defendant] is an ecstasy trafficker.” (emphasis in original)).
Because unreliable, uncorroborated tips are entitled to little or no weight when determining whether there is probable cause to support issuance of a search warrant, it was reasonable for the district court to excise the anonymous tip from its probable cause analysis. Thus, the officers did not have probable cause to search for evidence of drug trafficking at Embry’s apartment.1 Thereafter, the officers obtained a search warrant.
“Whether a search warrant describes items to be seized with sufficient specificity is reviewed de novo.”United States v. Reeves, 210 F.3d 1041, 1046 (9th Cir.2000).
In this case, the search warrant failed to meet the requirements of the test set out in United States v. Spilotro, 800 F.2d 959, 963 (9th Cir.1986), for determining whether a warrant is “sufficiently precise.” As in Spilotro, the search warrant here “authorize[d] wholesale seizures of entire categories of items not generally evidence of criminal activity, and provide[d] no guidelines to distinguish items used lawfully from those the government had probable cause to seize.” Id. at 964.
As a result of the invalid search warrant and for the lack of probable cause, the 9th Circuit applied the exclusionary rule (and would not apply the severability rule allowing some evidence in and other evidence out ) and excluded the evidence found as a result of the illegal search and seizure of the apartment – which led to the case having to be dismissed unless the U.S. Supreme Court accepts certiorari.
At the federal level, it is different than it is at the state level. In Washington and Oregon, I believe the result would have been different in both Washington and in Oregon. For example,, in Washington state, in the case of State vs. Higgs, 177 Wash.App. 414311 P.3d 1266 (2013), a similar case where a non-anonymous informant told police of drugs in a Washington state apartment, the Washington state Court of Appeals found that affidavit was sufficient to support probable cause regarding possession paragraphs of search warrant;
the affidavit was insufficient to support probable cause regarding distribution paragraphs; on an issue of first impression, valid parts of warrant were significant part of warrant for purposes of severability doctrine; methamphetamine, light bulb smoking device, and residue baggie were admissible pursuant to severability doctrine; amphetamine pills were admissible pursuant to plain view doctrine;
rental agreement, department of licensing document, and driver’s license were not admissible pursuant to plain view doctrine; counsel’s failure to challenge admission of agreement, document, and license did not prejudice defendant; and
evidence was sufficient to support possession conviction. Id.
How is this case different than the federal case? Well, first the warrant was based on information from a known person. This person was not anonymous. Second, the detailed facts of how the person knew (use of a light bulb to ingest the substance for example), was given to specificity to satisfy the probable cause requirement. Also, the federal court never did apply the plain view doctrine. The court in Washington state did just that. The plain view doctrine is an exception to the warrant requirement which allows officers to seize items which they observe and immediately recognize as evidence or contraband while they are lawfully present in an area protected by the 4th Amendment. Also, the court applied the severability doctrine, where the federal court did not do so. Even if a search warrant is overbroad or insufficiently particular, “under the severability doctrine, ‘infirmity of part of a warrant requires the suppression of evidence seized pursuant to that part of the warrant’ but does not require suppression of anything seized pursuant to valid parts of the warrant.” Perrone,119 Wash.2d at 556, 834 P.2d 611 (quoting United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir.1983)). (Please note that I feel the 9th circuit decision in Embry is more recent and conflicts with the decision of the 8th circuit in Fitzgerald cited above). So, Washington state will look at the details of the warrant, but will also apply the severability rule and still allow some evidence to find a conviction on the defendant.
Now, how about Oregon? Oregon is a state that is notorious for not being as strong on individual rights and privacy as Washington state. However, one case was surprising in 2012.
Recently, in State vs. Huff, 253 Or.App. 480291 P.3d 751
The Oregon Court of appeals reversed and remanded a drug conviction on the basis that the affidavit to the search warrant was insufficient to support probable case. In the Huff case, a detective / sergeant with the Coos County Sheriff’s Department and director of the South Coast Interagency Narcotics Team (SCINT), applied by telephone for a warrant to search defendant’s residence, viz., a recreational vehicle (RV), and an outbuilding, described as a silver “Quonset hut style shop” (the shop).The telephonic affidavit supporting the application contained the following information: On January 14, 2006—almost 45 months earlier—the same detective had seized a commercial quantity of crystal methamphetamine from defendant at the shop. On October 8, 2009—the same day that the detective applied for the search warrant—the detective had responded to a call from a person named Larson, a parole and probation officer, indicating that defendant and another person, had been the subject of a traffic stop very early that morning. He told the detective that both men “were on his case load for the possession of methamphetamine” and that he wanted to conduct a home visit to make sure that defendant was not violating the terms of his supervision by possessing methamphetamine.
How is this different from the cases above? Well, it really isn’t’ The informant is NOT anonymous, the facts are specific, but the staleness of some of the information is there (45 months earlier), but some information is close in time to the application. (The fact that the application was by phone is not relevant as this is common in state and federal courts to attempt to investigate as soon as possible so as to not have destruction of the drug evidence). What did Oregon do here? They found a violation of the probable cause requirement, but instead of applying the severability rule, they just passed the buck back to the trial court to make a ruling as to what evidence would be in or out under the exclusionary rule.
At the trial court level before the appeal, the trial court denied defendant’s motion to suppress, determining that the affidavit was sufficient to establish probable cause based on the following facts: the discovery of the drugs, in a container associated with a locked box, and the pipe; defendant’s criminal history involving commercial drug activity; and defendant’s association with Burback, “who has a documented drug history,” on two occasions within a 24–hour period. After a jury trial, defendant was found guilty of unlawful delivery of methamphetamine and unlawful possession of methamphetamine, both as commercial drug offenses under ORS 475.900(1)(b).4
On appeal, the Oregon Court of appeals found that a challenge was sufficient to the sufficiency of an affidavit supporting a magistrate’s issuance of awarrant, we consider “whether a neutral and detached magistrate could conclude, based on the facts and circumstances shown by the affidavit, that there was probable cause to believe that the search would discover things specified in the affidavit in the places requested to be searched.” State v. Castilleja, 345 Or. 255, 270, 192 P.3d 1283, adh’d to on recons., 345 Or. 473, 198 P.3d 937 (2008).6
In Oregon, the court claimed, they have held that the current possession of a small amount of illegal drugs in a person’s home does not give rise to probable cause to search the home for additional drugs. See, e.g., State v. Mepham, 46 Or.App. 839, 613 P.2d 500 (1980). The Oregon court of appeals felt that additional facts beyond the current possession must be presented to establish the probability that further evidence of criminal activity will be found at the suspected location. State v. Kittredge/Anderson, 36 Or.App. 603, 585 P.2d 423 (1978). The court concluded that, even if the information about the nearly four-year-old seizure is not impermissibly stale, it is, nonetheless, insufficient to allow the reasonable conclusion that evidence of drug distribution would probably be found on defendant’s property. See Johnson, 186 Or.App. at 192–93, 62 P.3d 861 (eight-year-old conviction for possession of less than one ounce of marijuana of little, if any, significance in determining probable cause to search for evidence of a marijuana-growing operation).
So, in conclusion, it appears that the federal courts will apply a blanket exclusionary rule, the courts of Washington will sever the valid evidence from the invalid evidence, and the Oregon courts will pass the buck down to the trial courts and let them decide. I still argue that Washington state protects individual liberties much better than the federal government or the State of Oregon. However, when it comes to drugs in your apartment, this can differ depending on the facts of the case.
Gregory Scott Hoover’s primary area of legal practice is in the form of civil and criminal litigation and assisting those involved in EB-5 immigration transactions. Mr. Hoover is licensed in both Oregon and Washington, and New York, U.S.A., and England and Wales. Mr. Hoover is also a skilled negotiator, mediator and arbitrator. As a skilled negotiator and litigator, Mr. Hoover can skillfully resolve your situation through effective negotiations or, if necessary, aggressively represent your matter in court.
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