STATE OF OREGON v. JAMES ANTHONY TROPEANO (2010)

Court of Appeals of Oregon.

STATE OF OREGON, Plaintiff-Respondent, v. JAMES ANTHONY TROPEANO, Defendant-Appellant.  Curry County Circuit Court

07CR0887

Decided: October 20, 2010

Garrett A. Richardson and Multnomah Defenders, Inc., filed the brief for appellant.   John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Harry B. Wilson, Assistant Attorney General, filed the brief for respondent.   Before Brewer, Chief Judge, and Edmonds, Senior Judge.   Officer Hensley swore in an affidavit that, among other things, defendant was a registered sex offender who previously had been convicted of possession of child pornography and had recently told a sheriff's deputy that he subscribed to a pornographic magazine from Denmark, a country that permitted child pornography, but that the photographs depicted only people of legal age.   Based on that affidavit, a magistrate issued a search warrant for defendant's hotel room.   During the ensuing search, officers seized a laptop computer that was later found to contain depictions of child pornography.   Before trial, defendant moved to suppress the evidence obtained from the search on the ground that the officer's affidavit was insufficient to establish probable cause to believe that evidence of a crime would be found in defendant's hotel room.   The trial court denied the motion to suppress, and a jury convicted defendant of the charged offenses.   On appeal, defendant renews his argument that the affidavit was insufficient to establish probable cause.   In particular, defendant argues that his statement to a sheriff's deputy that he received a pornographic magazine from Denmark supported only one inference of guilt among many other possible innocent inferences.   A judge may issue a search warrant if, after reviewing an application and supporting affidavit, the judge finds that “there is probable cause to believe that the search will discover things specified in the application and subject to seizure.”   ORS 133.555(2);  see also Or Const, Art I, § 9.1 “Probable cause” is a more rigorous standard than mere suspicion;  even a well-warranted suspicion does not suffice, because “a suspicion, no matter how well founded, does not rise to the level of probable cause.”  State v. Verdine, 290 Or 553, 557, 624 P.2d 580 (1981).   At the same time, “there is a vast difference between proof of probable cause and proof of guilt[.]”  State v. Tacker, 241 Or 597, 600, 407 P.2d 851 (1965).   To determine probable cause, the judge may rely on facts asserted in the affidavit as well as reasonable inferences to be drawn from them.  State v. Anspach, 298 Or 375, 381, 692 P.2d 602 (1984);  State v. Howell, 93 Or.App. 551, 557, 763 P.2d 179 (1988), rev. den, 307 Or 405 (1989).   In reviewing a judge's determination that a warrant is supported by probable cause, we examine the information in the supporting affidavit in a “commonsense and realistic fashion.”  State v. Villagran, 294 Or 404, 408, 657 P.2d 1223 (1983).   Doubtful cases should be resolved in favor of allowing the warrant.   Tacker, 241 Or at 602 (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S Ct 741, 13 L.Ed.2d 684 (1965)).   The Supreme Court said in State v. Carter/Grant, 316 Or 6, 13, 848 P.2d 599 (1993):  “A fact that merely supports an inference that some other fact is possible-as one among the range of many other and different possibilities-does not support an inference that any specific one of the possible facts is itself probable.   Probable cause is necessary to support a warrant, not merely one possibility, among many [.]”  Defendant argues that that principle is controlling here.   He reasons that equally available inferences include that the pornography that he ordered depicted only adults or, because the term “pornography” is itself vague, that the people involved could have been “partially unclothed.”