S055472, Opinion — State v. Castilleja

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Argued and submitted May 14, decision of Court of Appeals reversed; judgment of
circuit court reversed, and case remanded to circuit court for further proceedings
September 18, respondent on review Michael Santos Castillega's petition for
reconsideration filed October 2, allowed by opinion December 18, 2008
See 345 Or 471, 198 P3d 937 (2008)

STATE OF OREGON,
Petitioner on Review,
v.
AMBER SERENITY CASTILLEJA,
Respondent on Review.
(CC CR030092; CA A127255 (Control))
STATE OF OREGON,
Petitioner on Review,
v.
MICHAEL SANTOS CASTILLEJA,
Respondent on Review.
(CC CR030093; CAA127256; SC S055472)
192 P3d 1283

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En Banc

On review from the Court of Appeals .*

Rolf C. Moan, Assistant Attorney General, Salem, argued
the cause and filed the brief for petitioner on review. With
him on the brief were Hardy Myers, Attorney General, and
Mary H. Williams, Solicitor General.

Ryan T. O'Connor, Deputy Public Defender, Salem,
argued the cause and filed the brief for respondent on review
Amber Serenity Castilleja. With him on the brief was Peter
Gartlan, Chief Defender, Office of Public Defense Services.

Leland R. Berger, Portland, argued the cause and filed the
brief for respondent on review Michael Santos Castilleja.

Wayne Mackeson, Portland, filed the brief for amicus
curiae the Oregon Criminal Defense Lawyers Association.

John C. Lucy IV, Portland, filed the brief for amicus curiae
the National Organization for the Reform of
Marijuana Laws.

GILLETTE, J.

The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

\* Appeal from Yamhill County Circuit Court, Carol E. Jones, Judge. 215 Or
App 235, 168 P3d 1177 (2007).

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# GILLETTE, J.

This is a criminal case in which the defendants, who
are husband and wife, were charged in a single indictment
with unlawful manufacture of marijuana, unlawful posses-
sion of a controlled substance (marijuana), and both unlaw-
fully neglecting and unlawfully endangering their two chil-
dren by permitting them to remain on premises where the
alleged illegal acts involving marijuana had occurred. The
indictment further charged defendant Michael Castilleja
individually with two counts of delivery of a controlled sub-
stance (marijuana). The state's case was based on evidence
seized pursuant to a search warrant. Defendants moved to
suppress that evidence or, in the alternative, to controvert
the warrant.1 The trial judge addressed only the motion to
suppress and ruled that the affidavit supporting the search
warrant did not supply probable cause to issue the warrant.
The state appealed the trial court's resulting order suppress-
ing evidence. A divided Court of Appeals, sitting en banc,
affirmed the ruling of the trial court. State v. Castilleja, 215
Or App 235, 168 P3d 1177 (2007). We allowed the state's peti-
tion for review and now reverse the decision of the Court of
Appeals and the judgment of the trial court.

The facts of this case are convoluted but essentially
undisputed, at least as they pertain to the issue on review in
this court. Oregon State Police Trooper Stone executed the
warrant at issue in this case at defendants' home in Yamhill
County on October 21, 2002. Defendants both held Oregon
"medical marijuana cards"2 at the time. The affidavit in sup-
port of the warrant alleged the following facts, among many

1 Defendants are represented by separate counsel and have not always taken
precisely the same legal positions before the trial court, the Court of Appeals, or
this court. For the sake of simplicity, however, we choose to label all arguments
made, or motions filed, by either defendant as if they had been made and argued by
both.

2 Under the version of the Oregon Medical Marijuana Act (OMMA) in force at
the time of defendants' alleged crimes, a person who possessed a "registry identi-
fication card" -- the document more commonly referred to as a "medical marijuana
card"-could lawfully possess up to three mature plants, four immature plants,
and one ounce of "usable marijuana" per each mature marijuana plant. ORS
475.306(1) (2001). Under the OMMA, "usable marijuana" was and continues to be
defined as "the dried leaves of and flowers of the plant Cannabis family Moraceae,
and any mixture or preparation thereof, that are appropriate for medical use as
allowed in [other provisions of the OMMA]." ORS 475.302(11). "Usable marijuana"
does not include the seeds, stalks and roots of the plant. Id.

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others: Stone had been a police officer for 12 years. In that
time, he had received extensive training in investigating
activities related to controlled substances, and he had exten-
sive training and experience with operations for growing
marijuana, which familiarized him with the appearance and
smell of marijuana, both when growing and in its dried form,
as well as in its various stages of processing.

Stone first went to defendants' residence on October
7, 2002, in response to a call concerning an attempted homi-
cide. Officers had been summoned because defendant
Michael Castilleja had been shot and seriously wounded by
intruders who, it was believed, were attempting to steal
defendants' marijuana plants. When Stone arrived, Michael
Castilleja already had been transported to the hospital by
ambulance, accompanied by defendant Amber Castilleja.
Officers already at the scene told Stone that there were six
mature marijuana plants growing in a greenhouse on the
premises, that there was a "large amount" of marijuana dry-
ing in the back of the residence, and that marijuana para-
phernalia and loose marijuana were "lying around" the resi-
dence. Stone knew that both defendants held medical
marijuana permits and that defendants therefore were per-
mitted by law to possess three mature plants each (for a total
of six).

Stone entered the house and spoke to Loewen,
Amber Castilleja's mother. Loewen told Stone that Amber
Castilleja had called her to tell her about the shooting and to
ask her to collect the children, ages eight and seven, and to
secure the house. Stone's affidavit continued:

"[Loewen] was very upset and told me she knows [defen-
dants] have medical marijuana permits but added that she
knew they were way over their lawful allowable amounts.
[Loewen] then said it was her understanding that Michael
Castilleja's medical marijuana permit was expired or
revoked but she did not know for sure. [Loewen] told me she
believed there was a lot more than medical marijuana going
on at the Castilleja residence. When I asked her what she
meant, [Loewen] said Michael Castilleja has not worked in
a couple of years and her daughter works for minimum
wage, yet they have lots of stuff. [Loewen] told me there
were boxes of brand new stereo equipment stacked in

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[defendants'] closet. [Loewen] told me she knows what has
been going on because she had once been a drug dealer and
was familiar with controlled substances and signs that go
along with drug dealing, as well as the effects that drug
dealing has on children. [Loewen] told me that she stopped
dealing drugs when her children were very young after her
daughter was nearly shot during a search warrant service
at her home.

"[Loewen] said she knows that [defendants] were not
supposed to have more than three ounces of marijuana
apiece in addition to the growing marijuana. [Loewen] told
me there was two pounds of marijuana in her daughter's
bedroom in the closet as well as marijuana all over the
house, indicating there was marijuana on the floor and
marijuana drying in the back of the residence. [Loewen]
told me the two pounds of marijuana in [defendants'] bed-
room closet was [sic] in two large plastic bags."

After talking to Loewen, Stone walked through the house,
observing marijuana and marijuana paraphernalia in vari-
ous locations.

Stone also averred that he later verified with state
officials that both defendants held valid medical marijuana
permits.

Stone recounted that he had talked to another police
officer, Rosario, who also had talked to Loewen after the
shooting. In addition to the information that Loewen had
given Stone, Loewen told Rosario about an incident that had
occurred over six months earlier, in which defendants and
other adults had smoked marijuana in front of the children.

Stone also stated that Rosario had gone back to
defendants' home later on the day of the shooting, October 7,
2002, to talk to Amber Castilleja. At that time, Rosario
observed that the marijuana that had been growing in the
greenhouse a few hours earlier had been harvested and was
in three clothes baskets in the house. Those baskets con-
tained stems with the marijuana bud on them, some of which
were a foot or more in length. Rosario also observed a box full
of bare marijuana stems. Finally, Stone alleged that he
knew, based on his training and experience, that the average
mature marijuana plant will produce more than a pound of

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marijuana and can produce well over a pound depending on
the plant and the skill of the grower.

Based on Stone's affidavit, a magistrate issued a
search warrant. As noted, police officers executed the war-
rant on October 21, 2002. While searching the house, the offi-
cers discovered and seized marijuana well in excess of the
legal limits under the medical marijuana law. Again as
noted, defendants were charged in a multicount indictment
with, among other things, unlawfully manufacturing a con-
trolled substance, possession of a controlled substance, and
delivery of a controlled substance.

Before trial, defendants moved to suppress the evi-
dence obtained as a result of the search of their home. They
moved at the same time to controvert the warrant by chal-
lenging the good faith, accuracy, and truthfulness of the affi-
ant. At the subsequent hearing on those motions, the trial
court ruled that it would consider the motion to suppress first
and would turn to the motion to controvert later and only
if necessary. Accordingly, the court heard testimony from
officers Stone and Rosario, and from Loewen, concerning
Loewen's authority to consent to the initial search of defen-
dants' home immediately after the shooting.3 The court con-
cluded that Loewen did not have authority to consent to that
search and, therefore, the magistrate should not have relied
on any facts derived from the officers' observations during
that initial search to support the warrant that the magistrate
ultimately issued.4

In light of that ruling, the trial court excised from
Stone's affidavit all information derived from the first,

3 The testimony taken at the hearing was consistent with its limited scope. At
the suppression hearing, Loewen was asked about her relationship with defen-
dants and their children. She testified that her daughter had asked her to come to
the house to collect the children because Michael Castilleja had been shot. She tes-
tified that she visited the defendants about once a month and that she did not have
a key to their residence. She also testified that she had had conversations with the
police after Michael Castilleja had been taken to the hospital. She was not asked
about her statements to Stone about the marijuana in the closet or any of her other
statements about defendants' drug activity. Officers Stone and Rosario were exam-
ined about their contacts with Loewen, but were not asked about any information
Loewen had given them about defendants' drug activity.

4 The state does not challenge that ruling here, and we therefore have no rea-
son to inquire into it.

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unlawful search of defendants' home. It then considered the
remaining information in the affidavit to determine whether
that information was sufficient to establish probable cause to
support the issuance of the warrant. In doing so, the court
reiterated that it was not taking evidence on or otherwise
reaching the motion to controvert.

Having excised the unlawfully obtained informa-
tion, the court concluded that the remaining allegations did
not establish probable cause. First, the court entirely dis-
counted Loewen's statements to Stone:

"[A]s I read the affidavit as a whole, I think that
[Loewen] was clearly upset about what she thought was
going on.

"She was clearly mistaken in at least one regard, and
that was in respect to [Mr.] Castilleja's license being
revoked or lapsed. She was just flat wrong about that. And
the manner in which she presented the statements and the
information that she had, I think painted her as being
maybe somewhat less than neutral on the issue. And I do
frankly take that into account.

"* * * [The court then summarized Loewen's statements
to the effect that defendants were over the legal limit, that
there was more than medical marijuana going on, that
Michael Castilleja's permit had expired, that she had had
her own drug dealing experience, and that defendants had
too much 'stuff considering how little money they earned.]

"I frankly don't find any of her statements there to add
anything to probable cause. Again, and I have already men-
tioned that I think there's an issue of her own motives and
veracity, as [defense counsel] pointed out.

"There's some guess work going on. It is too vague. She
apparently stated to Detective Rosario [sic] that * * * she
felt that it was more than medical marijuana because, one,
it was all over the house, and two, she thought that
[Michael Castilleja's] card had expired.

"So when she concluded that there was more than med-
ical marijuana going on, I don't find that there was a basis
of knowledge or particularly the veracity necessary for me
to find that added anything to the probable cause analysis.
And I don't find those statements added anything.

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"Of somewhat more concern was her statement about
the two pounds in the closet. But again, I think that because
of the veracity issue, and frankly the basis of her knowl-
edge, and maybe to a lesser extent the issue of whether it
was usable or not, I don't find that there is much there
either in terms of probable cause."

The trial court then considered the remaining allegations in
the affidavit, including, among other things, Rosario's obser-
vation that the mature plants had been harvested and
amounted to about three pounds of fresh marijuana in bas-
kets, and ruled that those allegations also did not establish
probable cause for the issuance of the warrant. Based on
those rulings, the court granted defendants' motion to
suppress.

The state appealed the trial court's ruling to the
Court of Appeals, which affirmed the trial court's suppres-
sion of the evidence. However, as we shall explain, the Court
of Appeals applied an erroneous standard of review to the
trial court's ruling and, in so doing, reached an incorrect
result.

Under Oregon law, an application for a search war-
rant "shall be supported by one or more affidavits particu-
larly setting forth the facts and circumstances tending to
show that the objects of the search are in the places, or in
the possession of the individuals, to be searched." ORS
133.545(4). A judge reviewing the application and the sup-
porting affidavits shall issue a search warrant if "there is
probable cause to believe that the search will discover things
specified in the application." ORS 133.555(2). In addition,
Article I, section 9, of the Oregon Constitution, provides that
"no warrant shall issue but upon probable cause, supported
by an oath, or affirmation, and particularly describing the
place to be searched, and the person or thing to be seized."

In a typical search warrant case, such as this one, the
issuing magistrate or judge reviews an affidavit-a docu-
ment-and does not hear live witness testimony.5 Therefore,

5 Rather than rely on the affidavit alone, the issuing magistrate or judge may
hold a hearing and examine the affiant and the informants. ORS 133.555(1). In
that case, the magistrate or judge may make factual findings, and a reviewing
court would be bound by those findings as well as all reasonable inferences to be

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the only question before the issuing judge or magistrate is a
legal one: Does the affidavit establish probable cause? And
probable cause, in this context, exists when the facts set out
in the affidavit would " 'lead a reasonable person to believe
that seizable things will probably be found in the location to
be searched.'" State v. Goodman, 328 Or 318, 325, 975 P2d
458 (1999) (quoting State v. Anspach, 298 Or 375, 380-81, 692
P2d 602 (1984)).

When a court reviews a challenge to the sufficiency of
an affidavit supporting a magistrate's issuance of a warrant,
the question before the reviewing court remains a legal one.
A reviewing court asks whether, based on the facts shown by
the affidavit, a neutral and detached magistrate could con-
clude (1) that there is reason to believe that the facts stated
are true; and (2) that the facts and circumstances disclosed
by the affidavit are sufficient to establish probable cause to
justify the search requested. State v. Villagran, 294 Or 404,
408, 657 P2d 1223 (1983). In this case, after having ruled that
the initial search of defendants' home was unlawful and
therefore having excised the parts of the affidavit that
contained information derived from that search, the trial
court concluded (erroneously, as we shall explain) that
(1) there was insufficient reason to believe that Loewen's
information was true; and, (2) with Loewen's statements
excised, the remaining facts and circumstances described in
the affidavit were not sufficient to establish probable cause to
search.

On appeal, however, the Court of Appeals did not
apply that standard of review. Rather, the court held as
follows:

"Our standard of review dictates our conclusion. When,
as here, the trial court has excised information from the
affidavit, that court resolves the sufficiency of the warrant
independently of the decision of the magistrate who issued
the warrant and, thus, on appeal, there is no occasion for
deference to the issuing magistrate's decision. * * * In other
words, like the trial court, we are not required to draw all

drawn from them that are consistent with the magistrate's or judge's ultimate con-
clusion.

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reasonable inferences that are consistent with the magis-
trate's decision. Instead, we are bound by the trial court's
factual findings, including reasonable inferences that it
drew, as long as there is evidence to support them. * * * 'Nor-
mally, in the absence of other indications of the trial court's
findings, we resolve all disputed factual issues to support
its ultimate conclusion.' * * * 'On appeal, we do not decide
whether we would draw the same inference if we were the
factfinder. We ask only whether that inference is one that
the trial court reasonably could draw based on the record
before it.' *** Thus, when, as here, the trial court has
determined that a search warrant application does not
establish probable cause, we are bound by the court's fac-
tual findings and all reasonable inferences that are consis-
tent with that conclusion.

"In reaching the ultimate conclusion that the affidavit
did not demonstrate probable cause, the trial court neces-
sarily determined that the affidavit failed to show that
defendants probably had more than six ounces of usable
marijuana in their home. We are bound by that determina-
tion if any evidence in the record supports it. * * * "

Castilleja, 215 Or App at 248-49 (citations omitted; emphasis
added).

As is evident from the foregoing, the Court of
Appeals felt obligated to uphold the trial court's determina-
tions regarding the truth of the information in the affidavit
and the existence of probable cause if there was any evidence
to support them. That was incorrect. The sufficiency of the
search warrant affidavit presents a legal question for each
reviewing court, beginning with the trial court. That is, as in
the trial court, the question before the Court of Appeals was
whether the issuing magistrate could have concluded that the
affidavit (excluding the excised parts) established probable
cause to search defendants' home. As to that question, the
Court of Appeals was in the same position as was the trial
court to evaluate the sufficiency of the facts alleged in the
affidavit, the reasonableness of any inferences involved in
resolving the legal question presented by the probable cause
determination, and, ultimately, the existence of probable

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cause to support the warrant. No appellate court deference to
the trial court's findings or conclusions was appropriate or
warranted.6

It follows that the same legal question is before this
court on review: Does the affidavit (excluding the excised
parts) provide sufficient information to permit the issuing
magistrate to find probable cause for the search?

To answer those questions, we turn to the first issue
that Villagran (and the cases that have followed it) requires
us to decide: whether the magistrate reasonably could believe
that the facts stated in the affidavit are true.7 In Villagran,

6 In this case, the trial court relied on in-court testimony to conclude that the
initial warrantless entry was unlawful. The trial court's factual findings support-
ing that ruling are entitled to deference on review. That is, with respect to the facts
that the trial court relied upon to support its decision to excise certain facts from
the affidavit, the Court of Appeals, as the reviewing court, is bound by the trial
court's findings of fact, if there is evidence in the record to support them. State v.
Johnson, 335 Or 511, 523, 73 P3d 282 (2003); Ball v. Gladden, 250 Or 485, 487, 443
P2d 621 (1968). That, however, does not affect the standard of review that the trial
court, or the Court of Appeals, was required to apply in reviewing the remainder of
the affidavit for probable cause. Rather, those courts were required to evaluate the
sufficiency of the affidavit based on the remaining accurate allegations in the
affidavit after excision. See, e.g., State v. Harp, 299 Or 1, 9, 697 P2d 548 (1985)
(describing process).

" Although the trial court expressly stated that it would not decide defendants'
motion to controvert the warrant under ORS 133.693 unless and until that became
necessary, there appears nonetheless to have been some confusion among the par-
ties and in the Court of Appeals as to whether the trial court, in deciding that
Loewen's statements should be discounted because she lacked veracity, was
directly or implicitly deciding that motion as well. The trial court could not have
done so on that stated basis under the plain wording of ORS 133.693, That statute
provides that, in a motion to controvert, a party may "contest, by cross-examination
or offering evidence, the good faith, accuracy and truthfulness of the affiant with
respect to the evidence presented to establish probable cause for search or seizure."
ORS 133.693(1) (emphasis added). This court has held on numerous occasions that
that statute only permits a party to challenge the good faith, accuracy, or truthful-
ness of an affiant, not that of an informant. Illustrative cases are State v. Esplin,
314 Or 296, 839 P2d 211 (1992); State v. Coffey, 309 Or 342, 788 P2d 424 (1990); and
State v. Hitt, 305 Or 458, 753 P2d 415 (1988). (And, in this case, defendants' motion
to controvert challenged only the affiant's (Stone's), and not the informant's
(Loewen's), good faith, accuracy, and truthfulness.) Thus, under ORS 133.693, if
Stone subjectively believed that Loewen was truthful, and if that belief was objec-
tively reasonable, then defendants could not controvert the warrant even if Loewen
was later proved to have acted in bad faith in providing information to the police.
See Esplin, 314 Or at 304-05 (stating principle). However, the fact that defendants
may not controvert a warrant under ORS 133.693 by attempting to show that an
informant lacked veracity does not relieve the reviewing court of its obligation to
determine from the four corners of the affidavit whether a magistrate reasonably
could believe that the facts set out in the affidavit are true.

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this court reviewed various factors that a court may consider
in reviewing a magistrate's determination of the veracity of a
person who had provided information to the police. First, the
court considered the connection of the informant to the crime
itself. According to the court,

"[a]t the one extreme is the participant in the criminal
activity who, for a variety of reasons, decides to become an
'informer' in the second dictionary sense-one who informs
against another, often for money or for other reward or
gain. Then there is the person who, though not a party to
the crime, is closely connected with the criminal establish-
ment. A third category would include witnesses, including
victims. A fourth category would include other persons
unconnected with the crime who provide information, the
significance of which the provider may or may not be aware.
Courts have held that persons in the latter two categories
may be more worthy of belief than an informant from the
criminal establishment. See State v. Montigue, 288 Or 359,
605 P2d 656 (1980); United States v. Harris, 403 US 573, 91
S Ct 2075, 29 L Ed 2d 723 (1971). Identification of the
informant by name may also be a factor to consider."

294 Or at 409-10. In Villagran, the informant was not com-
plicit in the crime, and his information did not accuse the
defendant of a crime. However, the court observed, nothing in
the affidavit directly established the informant's veracity.
Accordingly, the court stated, the informant's veracity would
have to inhere in the circumstances of the inquiry. Having
considered those circumstances, the court concluded that the
magistrate reasonably concluded that the informant was
truthful. Id. at 411-12.

In this case, Loewen was not complicit in the crime,
but might be said to be closely connected to the criminal
establishment, at least insofar as she is related to the defen-
dants. However, we think that the issuing magistrate would
have been entitled to infer that her status as such enhanced
her credibility, because her statements were against the
criminal interests of her own daughter. Loewen also was
identified by name, which tends to enhance her credibility. In
addition, Loewen's statements about her own experience
dealing drugs, together with her knowledge of defendants'

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income level and acquisition of valuable property, lent credi-
bility to her conclusions concerning the likelihood that defen-
dants also were dealing drugs. Finally, Loewen's statements
reflected a familiarity with the medical marijuana laws and
limits, which provided a basis for her asserted knowledge
that defendants possessed more marijuana than the medical
marijuana law permits. All those factors reasonably permit-
ted the magistrate to conclude that Loewen was truthful.
Still further, Loewen's information about the marijuana and
stereo equipment in defendants' bedroom closet was very
specific, which supported an inference that that information
was based on first-hand knowledge.

As noted above, the trial court came to a contrary
conclusion with respect to the information that Loewen pro-
vided to Stone. Of particular relevance to the trial court was
the fact that Loewen stated that she believed that Michael
Castilleja did not hold a valid medical marijuana permit.
According to the trial court, Loewen was "flat wrong" about
that, and that fact, coupled with the fact that Loewen was
clearly upset about what had happened at her daughter's
house, caused the trial court to doubt Loewen's veracity in
every respect.8 As our recitation of the part of Stone's affida-
vit recounting his conversation with Loewen shows, however,
Loewen did not simply state that she believed that Michael
Castilleja's permit was invalid; she added that "she did not
know for sure." (Emphasis added.) Instead of suggesting that
Loewen was not credible, the issuing magistrate was entitled
to infer from that equivocal admission of uncertainty that
Loewen was concerned with providing accurate information
to the police. At the least, no necessary inference can be
drawn from that statement that Loewen lied to the police, an
inference which then might have required the magistrate to
find that Loewen was not credible.9 Moreover, nothing in

" As noted, nothing presented at the suppression hearing reflected one way or
another on Loewen's veracity. The evidence presented at that hearing was confined
to the subject of Loewen's authority to consent to the search of defendants' home.

9 We say "might" because, even in the context of a motion to controvert under
ORS 133.693, evidence that an affiant made an inaccurate statement, in the
absence of evidence that the affiant actively lied, is not a sufficient reason to dis-
regard the affiant's other statements. See State v. Keeney, 323 Or 309, 319, 918 P2d
419 (1996) ("A demonstration that an affiant has supplied inaccurate information
in a search warrant affidavit furnishes no reason for the court to conclude that the

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Stone's affidavit supports the inference drawn by the trial
court that Loewen had improper motives in making her
statements to the police. While the fact that Loewen was
upset that her son-in-law had been shot and that his and her
daughter's criminal activities had placed her grandchildren
in danger may show that Loewen was not "neutral," as the
trial court stated, it certainly was a natural response to
events, and it did not require the issuing magistrate to ques-
tion, much less reject, Loewen's credibility.

It follows from the foregoing that the trial court
erred in concluding that it was permitted to make its own
independent findings that the information that Loewen had
supplied was not truthful or reliable, and that the Court of
Appeals erred in affirming that methodology and conclusion.
We so hold.

That leads us to the second issue that Villagran
requires us to decide, viz., whether the facts and circum-
stances disclosed by the affidavit were sufficient to establish
probable cause to justify the search. 294 Or at 408. Both the
trial court and the Court of Appeals concluded that those
facts and circumstances were not sufficient. In that regard,
the Court of Appeals held that, even if the trial court's conclu-
sion that Loewen lacked veracity were not reasonable, "the
trial court could reasonably determine that the affidavit
failed to establish that the marijuana in the closet probably
was usable." Castilleja, 215 Or App at 251. Similarly, the
Court of Appeals upheld the trial court's conclusion that none
of the other allegations in the affidavit established that a
search probably would uncover more than six ounces of usa-
ble marijuana. Again, the Court of Appeals focused on the
wrong question, which led it to apply an incorrect standard of
review: Rather than considering the legal issue whether the
affidavit alleged sufficient facts to permit a neutral and
detached magistrate to determine that seizable evidence
probably would be found at the place to be searched, the court
accepted all the trial court's findings as true, as long as there
was evidence in the record to support them. Because the

affiant's remaining factual assertions also are inaccurate, in the absence of some
showing to support that conclusion. By contrast, a demonstration that the affiant
lied to the magistrate may lead the trial court to conclude that the affiant is not
credible and that it should give no weight to the affiant's other statements.").

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Court of Appeals applied the incorrect standard in reviewing
the trial court's ruling, we consider the matter anew.

Preliminarily, we agree with the Court of Appeals
that the issue in the case is not whether there was probable
cause to believe that any marijuana would be found in defen-
dants' house but, rather, whether there was probable cause
to believe that an unlawful amount of marijuana-more than
six usable ounces-would be found there. With the unlaw-
fully obtained information excised from the affidavit, but
with due consideration to Loewen's statements, the affidavit
permitted the issuing magistrate to find the following facts:
Loewen knew that defendants were "not supposed to have
more than three ounces of marijuana apiece in addition to the
growing marijuana"; Loewen reported that "there [were] two
pounds of marijuana in her daughter's bedroom closet as well
as marijuana all over the house" and that "there was mari-
juana on the floor and marijuana drying in the back of the
house"; Loewen stated that the two pounds of marijuana in
defendants' bedroom closet were in two large plastic bags;
and, finally, Stone stated that medical marijuana permit
holders each are permitted to possess up to three ounces of
usable marijuana, defined as the dried leaves and flowers of
the marijuana plant and, based on his training and experi-
ence, he had reason to believe that evidence of the crimes of,
among other things, manufacturing a controlled substance
and possession of a controlled substance would be found in
defendants' home.

We turn to the question whether a neutral and
detached magistrate could conclude, based on the facts and
circumstances shown by the affidavit, that there was proba-
ble cause to believe that the search would discover things
specified in the affidavit in the places requested to be
searched. Villagran, 294 Or at 408. In so doing, we also con-
sider all "inferences that fairly may be drawn from those
facts" to determine whether probable cause exists. Goodman,
328 Or at 326. We further observe, in that connection, that
"[p]robable cause is not certainty; 'there is a vast difference
between proof of probable cause and proof of guilt * * * '" Id.
(quoting State v. Tacker, 241 Or 597, 601, 407 P2d 851
(1965)). Thus, to uphold the warrant, the reviewing court
need only conclude that the issuing magistrate reasonably

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<!-- PageHeader="Cite as 345 Or 255 (2008)" -->

could conclude that the facts alleged, together with the
reasonable inferences that fairly may be drawn from those
facts, establish that seizable things probably will be found at
the location to be searched. We think that the affidavit here
was more than sufficient to meet that standard.

Apart from Loewen's statements that marijuana
was "all over the place," Loewen specifically stated that there
were two pounds of marijuana in plastic bags in defendants'
closet. Although that statement alone does not directly con-
vey how much, if any, of that marijuana was "usable," we
think it is fair to infer that the marijuana in the plastic bags
was dry, if for no other reason than because it was in the
closet rather than being dried in the back of the residence. It
also would be fair for the magistrate to infer that bags con-
taining 32 ounces of dried marijuana-even if all of it was not
usable marijuana-would at least contain more than six
ounces of marijuana that was usable. The issuing magistrate
also might have drawn a number of other inferences in sup-
port of probable cause, but we think that it is sufficient for
the purposes of this case to hold that the foregoing inferences,
standing alone, were sufficient to supply probable cause to
justify the search requested.

To summarize, we hold that the facts that Stone
recounted in his affidavit, together with reasonable infer-
ences drawn therefrom, would permit a neutral and detached
magistrate to believe that seizable things probably would be
found in defendants' home. Indeed, taken together, all the
facts and the inferences that reasonably could be drawn from
those facts would have permitted the issuing magistrate
reasonably to conclude that this affidavit was replete with
probable cause. The trial court erred in reaching a contrary
conclusion, and the Court of Appeals erred in affirming that
ruling.

The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.