State v Marmon

An affidavit requires facts be included to show more likely than not that: “(1)…a crime has been, or is currently being, committed, and that (2) evidence of that crime (3) will be found in the place to be searched.” State v. Cannon, 299 Or App 616, 626-27, 450 P3d 567 (2019).

Defendant appealed his conviction for delivery of heroin and possession of methamphetamine. On appeal, Defendant argued the trial court’s denial of his motion to suppress evidence was improper as the warrant used to search his home and obtain the evidence lacked probable cause for justification for the search. The warrant contained information from a confidential informant that the trial court excised and found the affidavit had probable cause without this information. The state cross-assigned error to the decision to excise the information. The Court rejected the state’s cross-assignment of error. An affidavit requires facts be included to show more likely than not that: “(1)…a crime has been, or is currently being, committed, and that (2) evidence of that crime (3) will be found in the place to be searched.” State v. Cannon, 299 Or App 616, 626-27, 450 P3d 567 (2019). Since the confidential informant’s statements were properly removed, the court found the affidavit lacked the evidence needed to meet probable cause. Reversed and remanded.