Matt Taylor 16 Ross Ct • Medford, OR 97501 • 503-381-6583 • email@example.com • OSB #053930 Writing Sample The following writing sample is excerpted from a motion to controvert a searchwarrant and motion to suppress evidence. This motion involved an attempt to avoid theconsequences of the “plain sight” doctrine. During the hearing on this motion additionalevidence 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 Departmentapplied for and obtained a search warrant to search the apartment where Defendant hadbeen recently residing. The warrant authorized a search for evidence relating to thecrimes of Burglary and Theft by Receiving. The affidavit in support of the warrant reliedon observations of a chair in the apartment at 135 Lincoln Street, where the defendanthad spent the previous two nights. The Honorable Lorenzo A. Mejia found that probablecause existed to grant the search warrant based on the affidavit. The affidavit relayed the following facts: Detective Stewart asked the tenants forconsent to search the apartment. After the tenants refused to consent to a searchDetective Stewart started to leave the apartment complex when he learned that thelandlord was on his way to speak with the tenants. Detective Stewart peered over thelandlord’s shoulder while the landlord stood at the tenant’s doorway. Detective Stewartwas able to observe a wooden kitchen chair that matched the set of chairs from thevictim’s residence. According to Detective Stewart the chair appeared to be out of place. Detective Stewart executed the search warrant and recovered various items ofproperty that had been reported stolen. Subsequent to the search of the apartmentDetective Stewart focused his investigation on the tenants of the apartment and theirguest, defendant. After multiple phone calls to the tenants Detective Stewart received aconfession by voicemail from an individual purporting to be defendant. Defendant hasbeen indicted for Burglary in the First Degree and Theft in the First Degree by Receiving. II. ISSUESA. The affidavit relies on evidence unlawfully obtained.B. Even with the unlawfully obtained observation the affidavit does not provide asufficient factual basis to support probable cause for the search warrant.C. Suppression is the appropriate remedy. III. ARGUMENTA. The affidavit relies on evidence unlawfully obtained.
Where an individual takes measures to protect his privacy, even if those measuresare 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 theOregon Constitution and The Fourth Amendment to the U.S. Constitution protect theindividual from unreasonable searches by the state. If the government action is not sointrusive as to constitute a search then that action is not an unlawful search. Fortmeyer at489. Observing plainly visible evidence, while standing in lawful vantage point, is not anillegal search. Id. However, if the individual has made efforts that require the lawenforcement officer to engage in unusual conduct in order for the officer to be able tomake the observation from the lawful vantage point, then the observation is an unlawfulsearch. Id. at 492. The Court of Appeals in Fortmeyer, provides three different factual scenarios thatclarify when the “plainly visible” exception does and does not apply to an officer lookinginto a residence from the outside. In Fortmeyer the court found that marijuana viewed byan officer leaning down to look into a basement window that had been mostly blocked bya piece of cardboard constituted a search. Id. at 492. In Fortmeyer the court followedState v. Gabbard, 129 Or.App. 122, rev. denied 320 Or. 131 (1994), and distinguishedState v. Corra, 88 Or.App. 339 (1987). In Gabbard, the court found that the six foot tallofficer conducted a search when he leaned over to look through a crack in the siding of ashed about four and a half feet off the ground. Fortmeyer at 491. In contrast, Corrafound 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.” Fortmeyerat 490. Fortmeyer ultimately makes sense of the two different conclusions by focusingon the “extra, albeit imperfect, measures” taken by the defendant. Id. at 492. The Court of Appeals has provided additional clarification by distinguishingFortmeyer in two separate cases involving officers looking into a partially obstructedwindow. In State v. Rodriguez-Ganegar, 186 Or.App. 530 (2003), the officer was at amotel investigating a report of a suspicious person. While walking along the second floorexterior walkway, he saw into a window where there was a gap between the curtains thatextended from the top to the bottom of the window. The individuals in the motel roomwere packaging cocaine. The officer was able to see “quite a bit” of the hotel room whilestanding at a normal distance from the window on the outside walkway. He happened tolook in the direction of the window because he heard a banging noise. Rodriguez foundthat the defendants had not made any particular effort to guard their privacy and theofficer had not made any special effort to observe their activities. Id. at 538. The Courtof 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 anapartment and had to walk past the kitchen window adjacent to the front door. The blindshad a triangular gap where the blinds were bent from people peering out. The officer wasable to see into the window without stooping or standing at a particular angle. Hisattention was drawn to the window by motion within the apartment. Again the courtfound that the officer had not made any special effort to see inside the residence, and sohis actions were lawful. Id. at 611. In both cases: law enforcement gained sight into theresidence with no special efforts; the defendants had failed to take any precautions tosafeguard their privacy; and the defendant’s conduct actually drew the officer’s attention.
The present case involving the occupants of 135 Lincoln Street and DetectiveStewart is the same as those cases where the court has found special efforts were made bythe parties involved. Unlike in Castillo and Rodriguez, Detective Stewart looked into theresidence because he was actively investigating the residents, not because they had madenoises or movements that happened to draw his eyes. Just as the police in Fortmeyer andGabbard had to crouch down and sneak a look through an obstructed window or a crackclose to the ground, Detective Stewart had to use a ploy to see into the residence. As hewas headed to his car, he turned around, followed the landlord, and looked over thelandlord’s shoulder. Just as the occupants in those cases made efforts to keep prying eyesfrom seeing their activities, Mr. Yaeger’s hosts tried to exclude Detective Stewart fromseeing into their apartment. Indeed they went even further than the occupants in thosecases by explicitly and verbally telling Detective Stewart they did not want him lookingaround inside their apartment. Because the occupants made special efforts to excludeDetective Stewart, and Detective Stewart made special efforts to gain sight into theapartment, Detective Stewart’s observation of the chair was a search and an invasion ofthe 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 lawfulnessof a warrantless search. State v. Stevens, 311 Or 119, 126 (1991); State v. Arnold, 115 OrApp 258, 261 (1992), rev. den. 315 Or 312 (1993). The prosecution must prove by apreponderance 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 taintedinformation, the correct action is for the magistrate and reviewing court to excise from theapplication all such information and to determine whether the remaining information issufficient to establish probable cause. State v. Binner/Walker, 128 Or App 639 (1994); Statev. 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 exciseall information obtained from the prior unlawful search, the affidavit in support of the searchwarrant does not establish probable cause.B. Even with the unlawfully obtained observation the affidavit does not provide asufficient 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 theexistence of probable cause. Article I, Section 9 of the Oregon Constitution and the FourthAmendment to the United States Constitution. The affidavit in support of the warrant muststate competent facts sufficient to enable an impartial magistrate to independently determinethat probable cause exists to believe the evidence of crime will presently be found in theplace 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 establishedprobable cause to believe that particular evidence will be found in a particular location.” Seealso ORS 133.555(2). "Probable cause" means the facts underlying the warrant must lead a reasonableperson 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 ofcontrolled 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 thefacts 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 howwell-founded does not rise to the level of probable cause. For example, no probable causeexists to search an intoxicated transient sleeping under a bridge nearby the sight of a recentburglary in a rural area. State v. Verdine, 290 Or 553 (1991). Nor is there probable cause tosearch person walking down the street in the area of a theft of a VCR carrying a plastic bagcontaining a VCR. State v. Spencer, 101 Or App 425 (1990). A lengthy affidavit involvingother associated residences with only three references to illegal activity at the particularresidence 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, butnot probable cause. Similar to the transient in Verdine and the man carrying the plastic bagin Spencer, defendant’s proximity to the incident of the burglary and his association with aresidence containing a piece of property similar in appearance to a stolen item naturallyaroused Detective Stewart’s suspicion. In the case of Anspach, with the marijuana grownext to the home in the wilderness, it was not plausible that the marijuana was beingcultivated by trespassers with a distant residence. In defendant’s case there is room for anexplanation for the chair happening to be similar—just as in Spencer we are dealing with acommon item only truly distinguishable by a serial number. The chair involved was ageneric, common, wooden kitchen chair of the sort found in countless residences, especiallyresidences 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 upto probable cause in their entirety, but rather a single observation of a common woodenchair in an apartment nearby to where a burglary happened involving a similar chair. Just asin Corpus-Ruiz, the circumstances and associations involved here do appear suspicious, yetthe facts recited in the affidavit do not add up to probable cause. When the affidavit is insufficient to support the warrant, the search performedpursuant 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’sconstitutional 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 Or312 (1972). “Oregon law permits the exclusion of evidence . . . when exclusion isrequired by the United States or Oregon Constitutions.” State v. Thompson-Seed, 162 OrApp 483 (1999). Any and all evidence derived from an unlawful search and seizure mustbe suppressed as “fruit of the poisonous tree.” State v. Warner, 284 Or 147 (1978). Thisincludes 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 searchwarrant, and the most important piece of information (the observation of the chair) wasobtained unlawfully. By looking into the apartment the state conducted an illegal searchin violation of both the Oregon and U.S. Constitutions. By searching pursuant to aninvalidly granted search warrant additional constitutional violations occurred. The courtshould suppress any and all evidence seized and/or discovered as a result of the twosearches performed at 135 Lincoln Street, Apartment 19; including any statements left onDetective Stewart’s voice mail system as a result of his repeated inquiries of the residentsof apartment 19 regarding the seized property.For additional information please view my Linked In profile: www.linked.com/pub/matttaylor/1/409/150