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FILED: October 11, 2000 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Appellant, v. GARY LEON MARTIN, Respondent. _____________________________________________ STATE OF OREGON, Appellant, v. VALERIE LYNN DILLS, aka VALERIE LYNN ALTO, Respondent. (98CR0101; 98CR0087; CA A103003 (Control); A103004 (Cases Consolidated Appeal from Circuit Court, Curry County. Richard K. Mickelson, Judge. Argued and submitted June 12, 2000. Jonathan H. Fussner, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. James N. Varner argued the cause for respondents. With him on the brief was David E. Groom, State Public Defender. Before De Muniz, Presiding Judge, and Haselton and Wollheim, Judges. HASELTON, J. Affirmed. HASELTON, J. The state appeals, in two consolidated cases, assigning error to the trial court's suppression of evidence seized upon execution of a "telephonic search warrant." ORS 133.555(3). The state contends that various defects in the warrant process, including the overbreadth of the "duplicate original" warrant, were immaterial and, in all events, were not of constitutional magnitude and thus did not require suppression. See ORS 136.432. (1) We conclude that the scope of the "duplicate original" warrant deviated so substantially from the magistrate's oral
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Oregon Judicial Department - Publications

authorization to search that the execution of the latter violated Article I, section 9, of the Oregon Constitution. Accordingly, we affirm. Except as specifically noted, the material facts are undisputed. On January 27, 1998, Detective Gardiner of the Curry County Sheriff's Office telephoned Circuit Court Judge Downer to request a telephonic search warrant pursuant to ORS 133.555(3). (2) Detective Gardiner was in Brookings, and Judge Downer was in Gold Beach at the time. Gardiner sought authorization to search Apartment No. 5 at 524 Spruce Street in Brookings for controlled substances, including methamphetamine, and related paraphernalia, documents, and proceeds. He recounted to the judge the facts that he believed constituted probable cause for the search. Gardiner's statements were tape-recorded as required under the telephonic warrant statutes, ORS 133.545(5), but Judge Downer's comments were not recorded. (3) At the end of the conversation, Judge Downer orally authorized a search of 524 Spruce Street, Apartment No. 5. (4) Judge Downer did not sign, date, and file an original search warrant following the conversation, as required by ORS 133.555(3). (5) However, Gardiner did prepare a "duplicate original warrant," signing Judge Downer's name to that document. ORS 133.555(3). That duplicate original warrant authorized "any police officer in the state of Oregon" to search "524 SPRUCE STREET, BROOKINGS, CURRY COUNTY, OREGON." The building located at 524 Spruce Street in Bookings is a multi-unit apartment complex. The duplicate original warrant did not refer to Apartment No. 5. The search warrant was then executed, with Gardiner "as the officer in charge of that operation." Only Apartment No. 5 was searched. Defendants, who resided in Apartment No. 5, were subsequently charged with a variety of crimes, including drug offenses. Defendants moved to suppress, arguing principally that, because the duplicate original warrant described the entire apartment complex, and not Apartment No. 5, the warrant was impermissibly overbroad. See, e.g., State v. Davis, 106 Or App 546, 552, 809 P2d 125 (1991) (applying particularity requirement); State v. Ingram, 313 Or 139, 831 P2d 674 (1992) (prohibiting general warrants); State v. Willcutt, 19 Or App 93, 95, 526 P2d 607, rev den (1974) (stating rule that search warrant must specify which subunits of multi-unit structure are to be searched). In the hearing on that motion, the state did not dispute that the duplicate original warrant's description of the premises was impermissibly overbroad. Instead, the state argued that that facial overbreadth should be qualified by the officer's subjective knowledge and good faith--and specifically in the telephonic warrant context, that the "lack of particularly" or "overbreadth" analysis should focus not on the duplicate original warrant but, rather, on the magistrate's original authorization: "[The duplicate original warrant is] a dummied up piece of paper. The actual truth of what's said is in the transcript of the telephone conversation. "* * * * * "And at the end of the affidavit, obviously, [Gardiner] repeats the address, 524 Spruce, Number 5. At that point the Detective receives permission from the judge to go and search that residence. "I think in the case of telephonic search, there's no question that it's going to go to another officer. You're going to have the officer who made the telephonic search warrant be the officer who goes and serves that search warrant." The court then found that Judge Downer did in fact authorize a search of Apartment No. 5: "I would find based upon the one-sided dialogue * * * that Officer Gardiner was requesting a warrant for 524 Spruce, Number 5 and that Judge Downer authorized a search of 524 Spruce No. 5. "He would have therefore authorized Officer Gardiner to prepare a search warrant for service upon the occupants of 524 Spruce Street, No. 5 in Brookings."

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Oregon Judicial Department - Publications

Nevertheless, the court also found the duplicate warrant to be overbroad: "Without the No. 5 there, technically the warrant that was signed under the authority of Judge Downer by Officer Gardiner gave him the authority to go in all five buildings. And we all know you can't do that." Accordingly, the court granted the motion to suppress. On appeal, the state makes two closely related arguments. First, any ostensible overbreadth in the duplicate original warrant's description of the premises is cured by reference to the magistrate's more precise oral authorization. Second, in all events, the operative warrant here was not the duplicate original but was, instead, the magistrate's oral authorization. The state further asserts--in response to defendant's contention that the procedure followed here deviated from that prescribed in ORS 133.545(5) and ORS 133.555(3)--that suppression cannot be based on such statutory violations. We begin with a brief description of the telephonic warrant procedure. ORS 133.545(5) allows a recorded oral statement to substitute for a written affidavit when a police officer applies for a search warrant over the telephone: "Instead of the written affidavit * * *, the judge may take an oral statement under oath. The oral statement shall be recorded and transcribed. The transcribed statement shall be considered to be an affidavit for the purposes of this section. In such cases, the recording of the sworn oral statement and the transcribed statement shall be certified by the judge receiving it and shall be retained as a part of the record of proceedings for the issuance of the warrant." ORS 133.555(3) sets forth the procedures for issuance of a telephonic warrant: "The judge may orally authorize a police officer or a district attorney to sign the judge's name on a duplicate original warrant. A duplicate original warrant shall be a search warrant for the purposes of [this chapter] * * * . In such cases a judge shall enter on the face of the original warrant the exact time of the issuance of the warrant and shall sign and file the original warrant in the manner provided by law." Thus, under ORS 133.555(3), the issuing magistrate must create and file an original warrant contemporaneously with the oral authorization or soon thereafter. State v. Jordan, 73 Or App 84, 89, 697 P2d 1004, rev den 299 Or 251 (1985). That provides a means for the suppression court to compare the officer's duplicate with the judge's original in order to "to verify, for example that the officers did not add items not approved by the magistrate." State v. Evans, 110 Or App 46, 54, 822 P2d 1198 (1991). That process thus ensures that "evidence [is] gathered [in] a constitutionally permissible" fashion. Id. Finally--and of particular importance here--telephonic warrants are subject to the requirements generally applicable to all warrants, including the "particularity" requirement of ORS 133.565(2), which provides in part that "the warrant shall state, or describe with particularity * * * the location and designation of the premises or places to be searched." Here, there were at least three violations of the statutorily prescribed process. First, the court never signed, dated, and filed a written original warrant, as required by ORS 133.555(3). (6) Second, the duplicate original warrant--which under ORS 133.555(3) is deemed to be "a search warrant for purposes of [this chapter]"--did not, on its face, meet the particularity requirement of ORS 133.565(2)(b). Finally, the duplicate original warrant's description of the premises violated an implicit, but essential, statutory requirement. That description not only was facially overbroad, but it also deviated materially from the issuing magistrate's underlying authorization. It broadened the authorized scope of the search from one apartment to include the entire complex. If the statutory scheme is to operate practically and legally, officers, in creating a duplicate original warrant, must accurately memorialize the material elements of the court's order. See Evans, 110 Or App at 54; Jordan, 73 Or App at 89. That did not occur here. Nevertheless, as the state asserts, under ORS 136.432, mere statutory violations do not warrant suppression. Thus, the
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Oregon Judicial Department - Publications

issue reduces to whether any of those violations also offends Article I, section 9, of the Oregon Constitution. The state acknowledges, necessarily, that a warrant's lack of particularity may violate not only ORS 133.565 but also Article I, section 9. "ORS 133.565(2) implements a constitutional right to be free from searches conducted pursuant to warrants that do not particularly describe the persons or places to be searched." Ingram, 313 Or at 147. In State v. Blackburn/Barber, 266 Or 28, 34-35, 511 P2d 381 (1973), the court described the constitutional implications of overbroad warrants: "Both the Fourth Amendment to the United States Constitution and Article I,

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