1) The motion argues that the detective unlawfully peered into the apartment tenants' residence when he looked over the landlord's shoulder and observed a kitchen chair matching the description of a stolen item. 2) Even if the observation of the chair is excluded from the affidavit, the remaining information does not establish probable cause to search the apartment. 3) As the search warrant was not supported by probable cause and was based on an illegal search, all evidence obtained from the search should be suppressed.

1. Matt Taylor
16 Ross Ct • Medford, OR 97501 • 503-381-6583 • taylor.matthew.robert@gmail.com • OSB #053930
Writing Sample
The following writing sample is excerpted from a motion to controvert a search
warrant and motion to suppress evidence. This motion involved an attempt to avoid the
consequences of the “plain sight” doctrine. During the hearing on this motion additional
evidence 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 Department
applied for and obtained a search warrant to search the apartment where Defendant had
been recently residing. The warrant authorized a search for evidence relating to the
crimes of Burglary and Theft by Receiving. The affidavit in support of the warrant relied
on observations of a chair in the apartment at 135 Lincoln Street, where the defendant
had spent the previous two nights. The Honorable Lorenzo A. Mejia found that probable
cause existed to grant the search warrant based on the affidavit.
The affidavit relayed the following facts: Detective Stewart asked the tenants for
consent to search the apartment. After the tenants refused to consent to a search
Detective Stewart started to leave the apartment complex when he learned that the
landlord was on his way to speak with the tenants. Detective Stewart peered over the
landlord’s shoulder while the landlord stood at the tenant’s doorway. Detective Stewart
was able to observe a wooden kitchen chair that matched the set of chairs from the
victim’s residence. According to Detective Stewart the chair appeared to be out of place.
Detective Stewart executed the search warrant and recovered various items of
property that had been reported stolen. Subsequent to the search of the apartment
Detective Stewart focused his investigation on the tenants of the apartment and their
guest, defendant. After multiple phone calls to the tenants Detective Stewart received a
confession by voicemail from an individual purporting to be defendant. Defendant has
been indicted for Burglary in the First Degree and Theft in the First Degree by Receiving.
II. ISSUES
A. The affidavit relies on evidence unlawfully obtained.
B. Even with the unlawfully obtained observation the affidavit does not provide a
sufficient factual basis to support probable cause for the search warrant.
C. Suppression is the appropriate remedy.
III. ARGUMENT
A. The affidavit relies on evidence unlawfully obtained.

2. Where an individual takes measures to protect his privacy, even if those measures
are 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 the
Oregon Constitution and The Fourth Amendment to the U.S. Constitution protect the
individual from unreasonable searches by the state. If the government action is not so
intrusive as to constitute a search then that action is not an unlawful search. Fortmeyer at
489. Observing plainly visible evidence, while standing in lawful vantage point, is not an
illegal search. Id. However, if the individual has made efforts that require the law
enforcement officer to engage in unusual conduct in order for the officer to be able to
make the observation from the lawful vantage point, then the observation is an unlawful
search. Id. at 492.
The Court of Appeals in Fortmeyer, provides three different factual scenarios that
clarify when the “plainly visible” exception does and does not apply to an officer looking
into a residence from the outside. In Fortmeyer the court found that marijuana viewed by
an officer leaning down to look into a basement window that had been mostly blocked by
a piece of cardboard constituted a search. Id. at 492. In Fortmeyer the court followed
State v. Gabbard, 129 Or.App. 122, rev. denied 320 Or. 131 (1994), and distinguished
State v. Corra, 88 Or.App. 339 (1987). In Gabbard, the court found that the six foot tall
officer conducted a search when he leaned over to look through a crack in the siding of a
shed about four and a half feet off the ground. Fortmeyer at 491. In contrast, Corra
found 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.” Fortmeyer
at 490. Fortmeyer ultimately makes sense of the two different conclusions by focusing
on the “extra, albeit imperfect, measures” taken by the defendant. Id. at 492.
The Court of Appeals has provided additional clarification by distinguishing
Fortmeyer in two separate cases involving officers looking into a partially obstructed
window. In State v. Rodriguez-Ganegar, 186 Or.App. 530 (2003), the officer was at a
motel investigating a report of a suspicious person. While walking along the second floor
exterior walkway, he saw into a window where there was a gap between the curtains that
extended from the top to the bottom of the window. The individuals in the motel room
were packaging cocaine. The officer was able to see “quite a bit” of the hotel room while
standing at a normal distance from the window on the outside walkway. He happened to
look in the direction of the window because he heard a banging noise. Rodriguez found
that the defendants had not made any particular effort to guard their privacy and the
officer had not made any special effort to observe their activities. Id. at 538. The Court
of 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 an
apartment and had to walk past the kitchen window adjacent to the front door. The blinds
had a triangular gap where the blinds were bent from people peering out. The officer was
able to see into the window without stooping or standing at a particular angle. His
attention was drawn to the window by motion within the apartment. Again the court
found that the officer had not made any special effort to see inside the residence, and so
his actions were lawful. Id. at 611. In both cases: law enforcement gained sight into the
residence with no special efforts; the defendants had failed to take any precautions to
safeguard their privacy; and the defendant’s conduct actually drew the officer’s attention.

3. The present case involving the occupants of 135 Lincoln Street and Detective
Stewart is the same as those cases where the court has found special efforts were made by
the parties involved. Unlike in Castillo and Rodriguez, Detective Stewart looked into the
residence because he was actively investigating the residents, not because they had made
noises or movements that happened to draw his eyes. Just as the police in Fortmeyer and
Gabbard had to crouch down and sneak a look through an obstructed window or a crack
close to the ground, Detective Stewart had to use a ploy to see into the residence. As he
was headed to his car, he turned around, followed the landlord, and looked over the
landlord’s shoulder. Just as the occupants in those cases made efforts to keep prying eyes
from seeing their activities, Mr. Yaeger’s hosts tried to exclude Detective Stewart from
seeing into their apartment. Indeed they went even further than the occupants in those
cases by explicitly and verbally telling Detective Stewart they did not want him looking
around inside their apartment. Because the occupants made special efforts to exclude
Detective Stewart, and Detective Stewart made special efforts to gain sight into the
apartment, Detective Stewart’s observation of the chair was a search and an invasion of
the 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 lawfulness
of a warrantless search. State v. Stevens, 311 Or 119, 126 (1991); State v. Arnold, 115 Or
App 258, 261 (1992), rev. den. 315 Or 312 (1993). The prosecution must prove by a
preponderance 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 tainted
information, the correct action is for the magistrate and reviewing court to excise from the
application all such information and to determine whether the remaining information is
sufficient to establish probable cause. State v. Binner/Walker, 128 Or App 639 (1994); State
v. 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 excise
all information obtained from the prior unlawful search, the affidavit in support of the search
warrant does not establish probable cause.
B. Even with the unlawfully obtained observation the affidavit does not provide a
sufficient 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 the
existence of probable cause. Article I, Section 9 of the Oregon Constitution and the Fourth
Amendment to the United States Constitution. The affidavit in support of the warrant must
state competent facts sufficient to enable an impartial magistrate to independently determine
that probable cause exists to believe the evidence of crime will presently be found in the
place 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 established
probable cause to believe that particular evidence will be found in a particular location.” See
also ORS 133.555(2).
"Probable cause" means the facts underlying the warrant must lead a reasonable
person to believe that seizable evidence will “more-likely-than-not” be found in the location

4. to be searched. Probable cause exists to search a house for evidence of manufacturing of
controlled 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 the
facts 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 how
well-founded does not rise to the level of probable cause. For example, no probable cause
exists to search an intoxicated transient sleeping under a bridge nearby the sight of a recent
burglary in a rural area. State v. Verdine, 290 Or 553 (1991). Nor is there probable cause to
search person walking down the street in the area of a theft of a VCR carrying a plastic bag
containing a VCR. State v. Spencer, 101 Or App 425 (1990). A lengthy affidavit involving
other associated residences with only three references to illegal activity at the particular
residence 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, but
not probable cause. Similar to the transient in Verdine and the man carrying the plastic bag
in Spencer, defendant’s proximity to the incident of the burglary and his association with a
residence containing a piece of property similar in appearance to a stolen item naturally
aroused Detective Stewart’s suspicion. In the case of Anspach, with the marijuana grow
next to the home in the wilderness, it was not plausible that the marijuana was being
cultivated by trespassers with a distant residence. In defendant’s case there is room for an
explanation for the chair happening to be similar—just as in Spencer we are dealing with a
common item only truly distinguishable by a serial number. The chair involved was a
generic, common, wooden kitchen chair of the sort found in countless residences, especially
residences 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 up
to probable cause in their entirety, but rather a single observation of a common wooden
chair in an apartment nearby to where a burglary happened involving a similar chair. Just as
in Corpus-Ruiz, the circumstances and associations involved here do appear suspicious, yet
the facts recited in the affidavit do not add up to probable cause.
When the affidavit is insufficient to support the warrant, the search performed
pursuant 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’s
constitutional 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 Or
312 (1972). “Oregon law permits the exclusion of evidence . . . when exclusion is
required by the United States or Oregon Constitutions.” State v. Thompson-Seed, 162 Or
App 483 (1999). Any and all evidence derived from an unlawful search and seizure must
be suppressed as “fruit of the poisonous tree.” State v. Warner, 284 Or 147 (1978). This
includes any and all oral evidence. Dunaway v. N.Y., 442 U.S. 200 (1979); State v.
Olsen, 287 Or 157 (1979).

5. IV. CONCLUSION
The state stopped short of gathering sufficient information to support the search
warrant, and the most important piece of information (the observation of the chair) was
obtained unlawfully. By looking into the apartment the state conducted an illegal search
in violation of both the Oregon and U.S. Constitutions. By searching pursuant to an
invalidly granted search warrant additional constitutional violations occurred. The court
should suppress any and all evidence seized and/or discovered as a result of the two
searches performed at 135 Lincoln Street, Apartment 19; including any statements left on
Detective Stewart’s voice mail system as a result of his repeated inquiries of the residents
of apartment 19 regarding the seized property.
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