State v. Van Osdol

A valid warrant to search a residence for evidence of "frequenting" in violation of ORS 167.222 has to establish probable cause that (1) someone with legal authority over the residence actually knew of the sale of drugs at the residence and authorized or consented to the use of the house to facilitate those sales, (2) the substantial purpose of the residence was the commercial sale or use of illegal drugs, and (3) evidence of the crime would be found. Lemery v. Leonard, 99 Or 670, 678, 196 P 376 (1921)

Defendant appealed his conviction for “unlawful possession of heroin,” and of a “short-barreled firearm.” Defendant assigned error “to the trial court’s denial of his motion to suppress evidence obtained during” the search of his residence for evidence related to the crime of “frequenting a place where controlled substances are used” in violation of ORS 167.222. On appeal, Defendant argued that the affidavit supporting the warrant failed to establish probable cause that evidence “of those crimes would be found.” In response, State argued that the affidavit “established probable cause that defendant was knowingly permitting persons to unlawfully keep or sell controlled substances at his residence” and evidence supporting that assertion would be found at his residence. A valid warrant in this case had to establish probable cause that “someone with legal authority over” the residence “actually knew of the sale of drugs at the residence and authorized or consented to the use of the house to facilitate those sales,” the substantial purpose of the residence “was the commercial sale or use of illegal drugs,” and evidence that frequenting in violation of ORS 167.222 would be found. Lemery v. Leonard, 99 Or 670, 678, 196 P 376 (1921).  The Court held that the trial court erred in denying Defendant’s motion to suppress because the affidavit failed to establish probable cause that both evidence related to “delivery of heroin” and that evidence showing Defendant knew and permitted the sale or use of drugs, and that the substantial purpose of his residence was for the commercial sale or use of drugs would be found at Defendant’s residence. Reversed and remanded.