128 July 31, 2024 No. 527

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

CAROLYNE DEE COLGROVE,

Defendant-Appellant.

Linn County Circuit Court

20CR12369; A177892

Thomas McHill, Judge.

Argued and submitted August 21, 2023.

Emily P. Seltzer, Deputy Public Defender, argued the 

cause for appellant. Also on the brief was Ernest G. Lannet, 

Chief Defender, Criminal Appellate Section, Office of Public 

Defense Services.

Timothy A. Sylwester, Assistant Attorney General, 

argued the cause for respondent. Also on the brief were Ellen 

F. Rosenblum, Attorney General, and Benjamin Gutman, 

Solicitor General.

Before Ortega, Presiding Judge, and Hellman, Judge, 

and Armstrong, Senior Judge.

HELLMAN, J.

Reversed and remanded.
Cite as 334 Or App 128 (2024) 129

HELLMAN, J.

Defendant appeals from a judgment of conviction for possession of methamphetamine, ORS 475.894. 

Defendant’s conviction was the result of a conditional no 

contest plea, which reserved her right to appeal the trial 

court’s denial of her motion to suppress evidence obtained 

during the warranted search of her apartment and her 

motion for reconsideration of that denial. On appeal, defendant raises two assignments of error. In the first, she argues 

that the trial court erred in denying her motion to suppress 

evidence obtained from the warranted search of her apartment. She asserts that the search warrant was invalid 

under ORS 133.565(2), Article I, section 9, of the Oregon 

Constitution, and the Fourth Amendment to the United 

States Constitution because the supporting affidavit did 

not establish a sufficient nexus between any drug activity 

and the apartment.1

 In the second, she argues that the trial 

court erred when it denied her motion for reconsideration of 

the denial of her motion to suppress. We conclude that the 

search warrant affidavit did not establish probable cause to 

search the apartment, and, as a result, the trial court erred 

in denying defendant’s motion to suppress. We therefore 

reverse and remand. In light of that disposition, we do not 

reach defendant’s second assignment of error.

Police were investigating Phillips, defendant’s 

cotenant, for drug activities. As part of that investigation, 

they sought a warrant to search the apartment where 

defendant and Phillips lived. The affidavit reflected that, 

prior to seeking the residential search warrant, police had 

observed Phillips exiting the apartment and selling controlled substances to a confidential reliable informant (CRI) 

in three controlled buys at undisclosed locations outside 

1 ORS 133.565(2)(b) and (c) provide that “[t]he warrant shall state, or describe 

with particularity *** [t]he name of the person to be searched, or the location and 

designation of the premises or places to be searched,” and “[t]he things constituting the object of the search and authorized to be seized.” Similarly, Article I, section 9, provides that “no warrant shall issue but upon probable cause, supported 

by oath, or affirmation, and particularly describing the place to be searched, and 

the person or thing to be seized,” and the Fourth Amendment provides that “no 

Warrants shall issue, but upon probable cause, supported by Oath or affirmation, 

and particularly describing the place to be searched, and the persons or things to 

be seized.”
130 State v. Colgrove

the residence. Because the information in the affidavit, or 

rather, the lack of it, is dispositive in this case, we discuss 

the affidavit in some detail.

After discussing his training and experience, 

Detective Posthuma (affiant) explained that during the two 

months prior to seeking the search warrant, he had spoken 

with a CRI who agreed to purchase drugs from Phillips in 

a controlled-buy format. The affiant presented the reasons 

for which he considered the CRI to be reliable, as well as the 

precautions that police took to ensure that the CRI was not 

in possession of controlled substances, money, or weapons 

before leaving custody and upon returning to police custody 

after the controlled buy. The affiant further recounted that 

prior to seeking the search warrant he had verified information that the CRI had supplied and reviewed Phillips’s 

criminal history, noting that Phillips had prior drug crime 

convictions.

The affiant then presented information about 

each controlled buy. Of the first controlled buy, the affiant 

explained:

“Detective Jered McLain [(McLain)] told me he observed 

[Phillips] exit his apartment * **. Detective Ty Volin told 

me he observed [Phillips] meet CRI. [McLain] told me that 

he observed [Phillips] break contact with CRI. [McLain] 

told me he observed [Phillips] walk back into his apartment ***.”

The affiant described the second controlled buy as follows:

“[McLain] told me that he observed [Phillips] exit his 

apartment * **. [McLain] told me he observed [Phillips] 

enter the driver seat of [a vehicle]. [McLain] told me he 

observed [Phillips] start driving the vehicle and exit the 

parking lot as the only occupant of the vehicle. I observed 

[Phillips] arrive at the pre-arranged meet location and 

meet CRI, by arriving at the location. I observed CRI get 

into [Phillips’s vehicle]. A short time later I observed CRI 

exit. [Phillips] was followed back to his residence by detectives and [McLain] told me he observed [Phillips] go back 

into his apartment ** *.”

Finally, the affiant described the third controlled buy as 

follows:
Cite as 334 Or App 128 (2024) 131

“[McLain] told me that he observed [Phillips] exit his 

apartment * **. [McLain] told me he observed [Phillips] 

enter the driver seat of [the same vehicle Phillips used in 

the second controlled buy]. [McLain] told me he observed 

[Phillips] start driving the vehicle and exit the parking lot. 

I observed [Phillips] arrive at the pre-arranged meet location and meet CRI, by arriving at the location. I observed 

CRI make contact with [Phillips]. A short time later I 

observed CRI exit.

“[Phillips] was followed back to his residence by detectives and Lieutenant Jerry Drum told me he observed 

[Phillips] go back into his apartment * **.”

The affiant additionally said that during surveillance of 

“one of the above-mentioned controlled buys,” he watched 

Phillips park a different vehicle and get into the vehicle in 

which he travelled to the second and third controlled buys. 

The affiant explained, “CRI has told me that [Phillips] operates several different vehicles and travels with his supply of 

methamphetamine while he travels in vehicles.”

The magistrate issued a search warrant for the 

apartment where Phillips and defendant lived. When police 

executed that warrant, they found inculpatory evidence. 

Defendant and Phillips were both charged with drug related 

offenses.

Defendant moved to suppress the evidence found at 

the apartment, arguing that the search warrant affidavit 

did not establish probable cause to search the apartment. 

Specifically, defendant argued that there was an insufficient 

nexus between Phillips’s drug sales and the apartment. The 

trial court disagreed and denied defendant’s motion to suppress. Defendant thereafter entered a conditional no contest 

plea, reserving the right to appeal the denial of her motion 

to suppress and motion for reconsideration of that denial. 

This appeal followed.

In defendant’s first assignment of error, she argues 

that the search warrant affidavit did not provide a sufficient 

nexus between the apartment and Phillip’s drug transactions. We review “a challenge to the sufficiency of an affidavit supporting a magistrate’s issuance of a warrant” for legal 

error. State v. Castilleja, 345 Or 255, 264, 192 P3d 1283, adh’d 
132 State v. Colgrove

to on recons, 345 Or 473, 198 P3d 937 (2008). In that review, 

we “determin[e] whether, given the uncontroverted facts in 

the affidavit and reasonably derived inferences, the issuing 

magistrate reasonably could have concluded that the affidavit ** * established probable cause to search.” State v. Miller, 

254 Or App 514, 516, 295 P3d 158 (2013) (internal quotation 

marks omitted); see also Castilleja, 345 Or at 270-71 (explaining that “to uphold the warrant, the reviewing court need 

only conclude that the issuing magistrate reasonably 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” (emphasis omitted)). “We view the affidavit 

in a commonsense, nontechnical and realistic fashion, with 

doubtful cases to be resolved in favor of the magistrate’s determination of probable cause.” State v. Nelson, 307 Or App 226, 

232, 476 P3d 100 (2020) (internal quotation marks omitted).

Because defendant does not challenge the veracity of the facts in the affidavit, our inquiry is limited to 

“whether the facts and circumstances disclosed by the affidavit * ** are sufficient to establish probable cause to justify 

the search requested.” Id. (internal quotation marks omitted). “[A]s relevant here, probable cause exists only if the 

affidavit sets forth facts that create a nexus between the 

place to be searched and the objects to be found.” State v. 

Webber, 281 Or App 342, 348, 383 P3d 951 (2016).

We conclude that the facts in the affidavit did not 

create a sufficient nexus between the apartment and the 

suspected drug activity. The affidavit provided that during 

each of the controlled buys, one officer observed Phillips 

exiting the apartment, and at some unknown time later, a 

different officer observed Phillips meeting up with the CRI 

at an undisclosed location to distribute drugs. The affidavit did not show that police observed Phillips’s travel path 

to the undisclosed locations, nor that police ensured that 

Phillips did not stop somewhere prior to meeting the CRI. 

In addition, the affiant did not discuss the distance between 

the apartment and the undisclosed locations, nor how much 

time elapsed between Phillips leaving the apartment and 

arriving at those locations.
Cite as 334 Or App 128 (2024) 133

Confronted with a similar set of facts in Miller, we 

concluded that an “affidavit [was] insufficient to permit a 

magistrate reasonably to conclude that it [was] more likely 

than not that the evidence sought in the warrant would be 

found at [the] defendant’s residence.” 254 Or App at 528. In 

that case, the state charged the defendant with multiple 

drug-related offenses after police executed a search warrant on his car and his residence and found inculpatory evidence in both. Id. at 519-20. The affidavit in support of the 

search warrant recounted three controlled buys. Id. at 517. 

The first two controlled buys were not connected to the residence. Id. at 517-18. However, before the third controlled 

buy, officers surveilled the defendant’s residence, during 

which they watched the defendant leave the residence and 

walk directly to his vehicle. Id. at 518. Police then followed 

the defendant as he travelled directly to the location of the 

controlled buy and made the sale. Id. In concluding that the 

affiant had not established a sufficient nexus between the 

residence and the suspected drug activity, we explained,

“[A]t most, [the] affidavit established that (1) [the] defendant sold a small amount of methamphetamine to the 

[undercover informant] during each of three controlled 

drug buys that occurred within two weeks of issuance of 

the warrant at an undisclosed location; (2) [the] defendant 

lived at the residence * **; and (3) [the] defendant drove 

directly from that residence to the third controlled buy and 

returned thereafter.”

Id. at 527. We cited as dispositive that “[t]he drug activity 

*** did not occur at [the] defendant’s residence. Instead, 

each of the three controlled buys occurred at an undisclosed 

location other than defendant’s residence.” Id. at 528.

Here, like in Miller, “each of the three controlled 

buys occurred at an undisclosed location other than defendant’s residence.” Id. More so than Miller, the affidavit in 

the present case did not establish that Phillips travelled 

directly from the apartment to the any of the controlled 

buys. Id. Although an officer observed Phillips leaving the 

apartment some undisclosed amount of time prior to all 

three buys, the affidavit did not establish what occurred 

between Phillips leaving the apartment and arriving at the 

three buys. The mere fact that Phillips left the apartment 
134 State v. Colgrove

and then sometime later arrived at a controlled buy does not 

lead to a reasonable inference that “it [was] more likely than 

not that the objects of the search [would] be found” in the 

apartment. Nelson, 307 Or App at 232 (internal quotation 

marks omitted). Thus, we conclude that the facts in the affidavit, alone, did not permit a magistrate to determine that 

it was more likely than not that evidence of Phillips’s drug 

activity would be found in the apartment.

We further conclude that the affiant’s discussion 

of his training and experience did not bridge the gap to 

“establish probable cause to justify the search requested.” 

Id. (internal quotation marks omitted). We have explained 

that “the significance of [an affiant’s] training and experience ** * depends on the degree to which it was connected 

to the affidavit’s objective content and may have assisted the 

magistrate’s understanding of that content,” which in turn is 

“largely dependent upon the strength of that underlying content.” Webber, 281 Or App at 352. Here, the affiant’s “training 

and experience averments do not contribute the necessary 

factual nexus,” because “there is nothing in the affidavit ** * 

permitting and supporting a nonspeculative inference” that 

evidence of Phillips’s drug offenses would be found in the 

apartment. Miller, 254 Or App at 528. Restated, the underlying facts are too lean for the affiant’s general statements of 

training and experience to “shore up [the] affidavit’s objective content.” Webber, 281 Or App at 352 (internal quotation 

marks omitted); see also Nelson, 307 Or App at 233 (explaining that Oregon courts have “expressly rejected a blanket 

rule that, if there is probable cause to suspect that a person 

has committed a crime, an officer need only cite his or her 

training and experience to establish probable cause to believe 

that evidence of the crime will be found at the person’s home.” 

(Internal quotation marks omitted.)); contra State v. SotoSarabia, 333 Or App 46, 53, ___ P3d ___ (2024) (explaining 

that “the objective facts in the affidavit *** and the connection between those objective facts and [the affiant’s] training 

and experience * ** established probable cause to believe that 

evidence of drug activity would be found in defendant’s car”).

In reaching our conclusion, we reject the state’s 

argument that under a “commonsense and realistic reading 
Cite as 334 Or App 128 (2024) 135

of the affidavit,” the absence of information about the route 

and length of travel time between the apartment and the 

controlled buys “suggests that Phillips did not make any 

significant detours or stops between his apartment and the 

meeting place,” thereby allowing the magistrate to reasonably infer a nexus between suspected drug activity and the 

apartment. That argument turns the warrant requirement 

on its head. Warrant affidavits are required to provide information to a magistrate so that the magistrate can make an 

independent decision about probable cause. ORS 133.545(6) 

(stating that an application for a search warrant “shall be 

supported by one or more affidavits particularly 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” (emphasis added)). The complete absence of facts does not fulfill that requirement. See 

Webber, 281 Or App at 349 (concluding “that the absence of 

objective facts connecting that illegal activity to [the] defendant’s home foreclosed the conclusion that the affidavit provided a sufficient nexus to that location”); see also State v. 

Melendy, 49 Or App 441, 444, 619 P2d 952 (1980) (“Probable 

cause must be determinable from the facts recited in the 

‘four corners’ of the affidavit.”). A magistrate cannot infer 

probable cause from an absence of facts, especially when, as 

here, there are any number of reasons why the affidavit did 

not provide critical information, such as the route Phillips 

took or the amount of time it took him to travel between the 

apartment and the sites of the controlled buys, and not all of 

them are favorable to the police.

Here, the only drug sales known to police occurred 

at undisclosed locations away from the residence and, considering the absence of information about Phillips’s journey 

from the apartment to the controlled buys, “[t]here are simply no facts in the affidavit that would allow an inference 

that [Phillips] conducted any drug-dealing activity in the 

house.” Nelson, 307 Or App at 236. We conclude that the affidavit did not establish probable cause to search the apartment because it did not establish a sufficient nexus between 

Phillips’s drug activity and the apartment. See id. (“Viewing 

the affidavit as a whole and in a commonsense manner, we 

conclude that those inferences cannot be fairly drawn from 
136 State v. Colgrove

the facts stated in the affidavit.”); Miller, 254 Or App at 528 

(“In sum, the affidavit [was] insufficient to permit a magistrate reasonably to conclude that it is more likely than not 

that the evidence sought in the warrant would be found at 

defendant’s residence.”). We therefore conclude that the trial 

court erred when it denied defendant’s motion to suppress 

evidence obtained during the residential search.

Reversed and remanded.