46 June 5, 2024 No. 373

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

OLEGARIO SOTO-SARABIA,

Defendant-Appellant.

Jackson County Circuit Court

19CR05560; A178513

Paul D. Moser, Judge pro tempore.

Argued and submitted January 24, 2024.

Kristen Carveth, 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.

Erica L. Herb, Assistant Attorney General, argued 

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

Rosenblum, Attorney General, and Benjamin Gutman, 

Solicitor General.

Before Aoyagi, Presiding Judge, Joyce, Judge, and 

Jacquot, Judge.

JOYCE, J.

Convictions for unlawful possession of heroin and unlawful delivery of heroin reversed and remanded for entry of 

a judgment of conviction for unlawful delivery of heroin; 

remanded for resentencing; otherwise affirmed.

Jacquot, J., dissenting.
Cite as 333 Or App 46 (2024) 47
48 State v. Soto-Sarabia

JOYCE, J.

Defendant appeals from a judgment of conviction for 

unlawful delivery of heroin, ORS 475.850, and unlawful possession of heroin, ORS 475.854(2)(b). He raises two assignments of error. First, defendant argues that the trial court 

erred in denying his motion to suppress evidence because 

the search warrant affidavit that led to the discovery of the 

evidence lacked probable cause. Second, defendant argues 

that the trial court plainly erred when it failed to merge the 

possession verdict into the delivery verdict. We reverse and 

remand for merger and resentencing, and otherwise affirm.

MOTION TO SUPPRESS

In determining whether an affidavit supported the 

issuance of a warrant, our review is “based on the facts 

before the issuing court.” State v. Chamu-Hernandez, 229 

Or App 334, 341, 212 P3d 514, rev den, 347 Or 43 (2009). We 

give “no deference to the trial court’s findings or conclusions, 

but we allow all inferences that the issuing court may have 

fairly drawn from the facts in the affidavit * **.” Id. (emphases in original). We thus describe the facts consistently with 

that standard of review.

In December 2018, Officer Dode applied for a warrant to search defendant and his car for evidence of the 

crimes of delivery, manufacture, and possession of a controlled substance, specifically, heroin. In the affidavit in 

support of the warrant, Dode stated that within the past 

72 hours, a confidential reliable informant (CRI) had purchased a “dealer amount” of heroin from defendant at a predetermined location. Prior to the controlled buy, two officers 

met with and then followed the CRI to the predetermined 

location, where they observed defendant arrive in a grey 

2011 Honda Accord. Dode further averred that after the CRI 

met with defendant, the officers followed the CRI back to 

a designated meeting site, where the officers retrieved the 

heroin that the CRI had purchased.

Dode explained that within the prior four weeks, the 

same CRI bought a dealer amount of heroin from defendant 

in the same manner—at a predetermined location where 

officers observed defendant arrive in his 2011 Honda Accord. 
Cite as 333 Or App 46 (2024) 49

Dode also discovered that defendant had been arrested for 

possession of a controlled substance in June 2002.

The affidavit went on to state that Dode has 12 

years of experience in law enforcement, including, most 

recently, one year of working drug investigations. From his 

training and experience, Dode knows that people trafficking 

in controlled substances often keep items such as records of 

their sales, packaging material, cutting agents, and scales, 

in automobiles, because it “enables the trafficker to quickly 

depart a residence and ensure that the necessary tools are 

readily accessible for the purpose of selling or purchasing 

drugs.”

Dode requested “a ten day warrant to identify 

[defendant’s] drug source.” Dode sought evidence that 

included but was not limited to heroin, packaging materials, scales, cutting agents, recipes and books relating to 

the manufacture and distribution of controlled substances, 

records of sales, any paperwork that would implicate conspirators, locked containers, and any other items related to 

the manufacture and distribution of controlled substances, 

in particular heroin.

A judge signed the search warrant on December 7, 

2018. After the judge signed the warrant, the CRI informed 

Dode that they had arranged another buy with defendant. 

Six days later, when defendant was on his way to meet the 

CRI, Dode located defendant’s car; another officer stopped 

the car, with defendant driving. Dode then drove to the location and executed the search warrant.

The officers discovered 44.70 grams of heroin inside 

a shoe on the backseat floorboard. A user amount is generally less than a quarter of a gram. The state charged defendant with unlawful delivery of heroin and unlawful possession of heroin.

Defendant filed a pretrial motion to suppress evidence, arguing that the affidavit in support of the search warrant failed to establish probable cause. Defendant argued that 

the facts in the affidavit were stale, noting that the first controlled buy occurred four weeks before the warrant, and that 

continued possession of heroin is unlikely because heroin is 
50 State v. Soto-Sarabia

highly inculpatory, easily moved, and perishable. Defendant 

also argued that the affidavit failed to establish probable 

cause because the affidavit did not assert that defendant had 

additional heroin available for future purchase or that anyone 

had observed drug paraphernalia in defendant’s car.

The state responded that under the totality of the 

circumstances—two controlled buys involving defendant’s 

car, most recently within 72 hours; the veracity and reliability of the CRI; and Dode’s training and experience—the 

affidavit established probable cause.

The trial court denied the motion. At trial a jury 

convicted defendant of one count of unlawful delivery of heroin and one count of unlawful possession of heroin.

As he did below, defendant argues that the trial 

court erred in denying his motion to suppress because the 

search warrant affidavit did not establish probable cause. 

That claim of error presents a question of law. State v. 

Klingler, 284 Or App 534, 539, 393 P3d 737 (2017). Search 

warrants are presumptively valid; thus, it is a defendant’s 

burden to establish that the warrant was not supported by 

probable cause. State v. Webber, 281 Or App 342, 347, 383 

P3d 951 (2016).

Probable cause exists when the facts, as set forth 

in the affidavit, along with any reasonable inferences, could 

“permit a neutral and detached magistrate to determine 

that seizable evidence probably would be found at the place 

to be searched.” State v. Castilleja, 345 Or 255, 269, 192 P3d 

1283, adh’d to on recons, 345 Or 473, 198 P3d 937 (2008); 

see State v. Castro, 194 Or App 109, 115, 93 P3d 815 (2004) 

(the probability standard requires that the information in 

the affidavit “must be such that a reasonable person could 

conclude that it is more likely than not that the objects of 

the search will be found at the specified location” (emphasis in original)). We view the affidavit “‘in a commonsense, 

nontechnical and realistic fashion’ with ‘doubtful cases * * * 

to be resolved by deferring to an issuing magistrate’s determination of probable cause.’” State v. Miller, 254 Or App 

514, 516-17, 295 P3d 158 (2013) (quoting State v. Wilson, 178 

Or App 163, 167, 35 P3d 1111 (2001)).
Cite as 333 Or App 46 (2024) 51

Miller, in particular, informs the issues on appeal; 

we thus turn to that case. There, the state charged the defendant with various drug-related offenses (both possession and 

delivery) after police executed a search warrant on his residence and car and found inculpatory evidence. 254 Or App 

at 519-20. With respect to the information in the affidavit 

relevant to the defendant’s car, a detective stated that, in 

three controlled buys, a CRI purchased a “small amount of 

methamphetamine” from the defendant through an unwitting informant. Id. at 517. The first two buys occurred on 

separate occasions within two weeks preceding the request 

for the warrant, and the third buy occurred 72 hours before 

the request. Id. at 517-18. In each controlled buy, detectives 

observed the defendant arrive at an undisclosed location in 

his black Hyundai and meet with the unwitting informant. 

Id.

The affidavit went on to state that, in the detective’s 

training and experience, “[i]tems of value including drugs, 

currency, records of sales, or purchase of drugs are often 

kept in automobiles by persons trafficking in control[led] 

substances[, which] enables the trafficker to quickly depart 

a residence and ensure that the necessary tools are readily 

accessible for the purpose of selling or purchasing drugs.” 

Id. at 519 (second brackets in original). The affidavit also 

stated that the defendant had been convicted in 1977, 1999, 

and 2000 of drug-related offenses. Id. at 517.

On appeal, we upheld the warranted search of the 

car. Id. at 529. We explained that “the affidavit sufficiently 

substantiates that defendant drove his [car] to each of the 

controlled buys and that, based on [the officer’s] training 

and experience, ‘[i]tems of value including drugs, currency, 

records of sales, or purchase of drugs are often kept in automobiles by persons trafficking in control[led] substances * * *.’ 

The nexus to the vehicle is patent.” Id.; see State v. Goodman, 

328 Or 318, 328, 975 P2d 458 (1999) (“Facts derived from 

training and experience may contribute [the] necessary factual nexus in a determination of probable cause.”); Webber, 

281 Or App at 348 (“[P]robable 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.”).
52 State v. Soto-Sarabia

With that legal framework in mind, we turn to 

Dode’s affidavit. Similar to the affidavit in Miller, the affidavit here established that defendant drove his car to each of 

the controlled buys and that, based on Dode’s training and 

experience, drugs, drug paraphernalia, and sales records 

are often kept in automobiles by persons trafficking in controlled substances. In both cases, the most recent controlled 

buy occurred 72 hours before the warrant was issued, and 

in neither case did the affidavit contain information that 

the CRI or anyone else had observed drug paraphernalia or 

drugs in the defendant’s car.

Unlike in Miller, this case involved two controlled 

buys rather than three; defendant had one 15-year-old 

arrest for a drug-related offense rather than three prior 

convictions; and defendant sold a dealer quantity of drugs 

rather than a user quantity. Defendant does not argue that 

the distinctions between the number of buys or defendant’s 

lack of drug convictions are dispositive, and we did not rely 

on those factors to reach our holding in Miller. Defendant 

contends, however, that this case is distinguishable from 

Miller because defendant sold “dealer” amounts in the controlled buys rather than user amounts.

In defendant’s view, “[a]s a matter of common-sense, 

it is unlikely that a person carries large quantities of drugs 

around in his vehicle at all times [because] [i]t is highly 

inculpatory, more difficult to hide than user amounts, and 

risky—cars, much more than homes, are subject to police 

intrusion or criminal break-ins.” Defendant also argues 

that, while it may be reasonable to infer that a person who 

sells small amounts of drugs out of their car likely keeps 

drug paraphernalia in their car, that inference is unavailable where a person sells dealer quantities. Thus, defendant 

argues, because defendant sold dealer rather than user 

quantities, the affidavit did not establish probable cause.

We disagree. As a threshold matter, the kind of conduct that would be “common sense” where a dealer amount 

is involved is speculative.1

 More to the point, however, is that 

1 We note that, although the affidavit did not specify how much heroin defendant sold in the two controlled buys, when Dode executed the warrant, he found 

nearly 45 grams of heroin in defendant’s car. That quantity was small enough 
Cite as 333 Or App 46 (2024) 53

the dispositive question is whether the affidavit establishes 

probable cause to believe that there is a connection between 

defendant and the suspected drug activity, and that evidence of that drug activity will be found in the location that 

the officer seeks to search. See Webber, 281 Or App at 348.

In making that determination, we note that in 

Miller, the defendant’s conduct of driving to controlled 

buys with drugs, combined with the officer’s training and 

experience, was sufficient to establish probable cause that 

there would be evidence of the distribution of a controlled 

substance, including drugs and drug paraphernalia, in the 

defendant’s vehicle. See Goodman, 328 Or at 328 (an officer’s 

training and experience, when connected to objective facts, 

may be considered in determining whether probable cause 

exists).

Here, the objective facts in the affidavit—two controlled buys of heroin out of defendant’s car—and the connection between those objective facts and Dode’s training 

and experience that persons who traffic in drugs often keep 

drugs, drug paraphernalia, and sales records in their cars, 

established probable cause to believe that evidence of drug 

activity would be found in defendant’s car. The affidavit is 

thus functionally similar to the one that we upheld in Miller.

Moreover, this case is distinguishable from cases 

in which we have held that, because there was not a nexus 

between the place to be searched and the objects to be found, 

the affidavit did not establish probable cause. See Webber, 

281 Or App at 349 (affidavit in support of warrant to search 

the defendant’s home did not establish probable cause where 

the defendant’s suspected drug activities occurred in locations other than his home; the “absence of objective facts 

connecting that illegal activity to defendant’s home foreclosed the conclusion that the affidavit provided a sufficient 

nexus to that location”); Wilson, 178 Or App at 165, 170 

(affidavit to search the defendant’s home did not establish 

probable cause where previous controlled buy occurred at a 

third-party’s home; the affidavit failed to establish a nexus 

between the place to be searched and the items to be found).

that defendant was able to hide it in a shoe. A dealer amount, then, is not necessarily more difficult to hide than a user amount.
54 State v. Soto-Sarabia

Unlike in those cases, where the affidavits did not 

aver that any drug activity had occurred at the locations to 

be searched, here the affidavit stated that both controlled 

buys occurred from defendant’s car. Just like in Miller, then, 

the nexus to defendant’s car is “patent,” and the affidavit 

established probable cause to believe that, more likely than 

not, evidence of drug activity would be found in defendant’s 

car. Miller, 254 Or App at 529. Thus, “cognizant of the preference for warrants and our concomitant duty to resolve 

doubtful or marginal cases in favor of that preference,” we 

conclude that defendant did not meet his burden to establish 

that the warrant was defective. Webber, 281 Or App at 358. 

Accordingly, the trial court did not err in denying defendant’s motion to suppress.2

MERGER OF VERDICTS

In his second assignment of error, defendant argues 

that the trial court plainly erred in failing to merge the possession of heroin verdict and the delivery of heroin verdict. 

See State v. Hubbell, 314 Or App 844, 500 P3d 728 (2021), 

aff’d, 371 Or 340, 537 P3d 503 (2023) (unlawful possession of 

controlled substances is subsumed in delivery of controlled 

substances when the guilty verdicts arise out of the same 

conduct); see also State v. Serbin, 324 Or App 792, 801, 527 

P3d 794 (2023) (unlawful possession of controlled substances 

merges with delivery of the same controlled substances when 

the guilty verdicts arise out of the same conduct because a 

person cannot deliver controlled substances without at least 

constructively possessing the controlled substances). The 

state concedes that the trial court plainly erred and further asserts that we should exercise our discretion to correct 

that error. We agree with and accept the state’s concession 

and agree that this case is an appropriate one in which to 

2 The dissent is concerned that the warrant here is an “‘anticipatory warrant’ 

of the type that the Oregon Supreme Court found was not supported by statute 

in State v. Lee, 371 Or 200, 532 P3d 894 (2023).” 333 Or App at 55 (Jacquot, J., 

dissenting). In the dissent’s view, it is less likely that a person selling dealer quantities would keep evidence of drug activity in their car at all times, and thus the 

affidavit did not establish probable cause to believe that, at the time the warrant 

was issued, evidence of drug activity would be found in defendant’s car. Id. at 56. 

As discussed above, we disagree, and we also note that whether the police executed 

the warrant immediately or waited for a controlled buy does not affect the analysis 

of whether the affidavit established probable cause.
Cite as 333 Or App 46 (2024) 55

exercise our discretion to correct the error. See State v. Carr, 

319 Or App 684, 690, 511 P3d 432 (2022), rev den, 371 Or 771 

(2023) (exercising discretion to correct plain error because 

“raising issue would have been futile because existing law 

was to the contrary, correction serves the ends of justice, 

and the error was not harmless” (internal citation omitted)).

Convictions for unlawful possession of heroin and 

unlawful delivery of heroin reversed and remanded for entry 

of a judgment of conviction for unlawful delivery of heroin; 

remanded for resentencing; otherwise affirmed.

JACQUOT, J., dissenting.

I agree with the majority opinion to the extent 

that it holds that convictions for possession of a controlled 

substance and delivery of a controlled substance should be 

merged under the circumstances of this case if both convictions were to stand. I disagree that the facts and reasonable inferences contained in and flowing from the warrant 

affidavit established probable cause to search defendant’s 

car for the ten days after the warrant was issued. I also 

have concerns that the warrant the majority upholds is an 

“anticipatory warrant” of the type that the Oregon Supreme 

Court held was not supported by statute in State v. Lee, 371 

Or 200, 532 P3d 894 (2023). Because the motion to suppress 

should have been granted, I dissent.

As the majority notes, probable cause is established 

“when the facts, as set forth in the affidavit, along with any 

reasonable inferences, could ‘permit a neutral and detached 

magistrate to determine that seizable evidence probably 

would be found at the place to be searched.’” State v. SotoSarabia, 333 Or App 46, 50, ___ P3d ___ (June 5, 2024) 

(citing State v. Castilleja, 345 Or 255, 269, 193 P3d 1283, 

adh’d to on recons, 345 Or 473, 198 P3d 937 (2008)). The 

majority relies on an analogy to State v. Miller, 254 Or App 

514, 295 P3d 158 (2013), to conclude that the nexus between 

the vehicle and the crime is “patent.” Soto-Sarabia, 333 

Or App at 51. As the majority notes, here, there are fewer 

controlled buys (two dealer quantity buys within four weeks) 

supporting the warrant than in Miller, which was based on 

three user quantity buys within two weeks. Additionally, 
56 State v. Soto-Sarabia

defendant’s drug history was much less significant than 

the history of the defendant in Miller. However, the warrant 

here and in Miller included similar statements by the officers averring to knowledge, based on each officer’s training 

and experience, that items of value including drugs, currency, and sales records are likely to be kept in cars because 

the trafficker will be able to depart quickly and ensure that 

necessary tools are available and accessible for the purpose 

of selling drugs.

I am persuaded by defendant’s argument that it is 

less likely that dealer quantities of heroin would be kept in 

the car at all times and less likely that paraphernalia would 

be necessary or likely to be used in the transaction from 

dealer to dealer and therefore less likely to be in the car 

when stopped. Although it is possible that dealer to dealer 

sales records would be kept in a car, it seems a stretch to 

say that they would more likely be in the car than not. One 

can imagine that a dealer of controlled substances in large 

quantities completes relatively fewer transactions than a 

user-quantity dealer and would be able to remember them 

until arriving at a better, safer, and more convenient place 

to keep records. The majority points out that a dealer quantity of heroin still fits inside a running shoe, so reasons that 

defendant’s argument that larger quantities are difficult to 

hide is undercut. However, that does not make it less risky

to carry valuable amounts of drugs in a car all the time 

because automobiles are more susceptible than fixed locations to be subject to unrelated law enforcement scrutiny 

and the criminal activities of others.

Ultimately, I disagree with the majority because 

the differences between this case and Miller are more 

important than the similarities. Although defendant drove 

his car to two drug transactions a month apart, in my view, 

the totality of the circumstances that the officer knew at 

the time he sought the warrant did not make it more likely 

than not that he would find evidence of the crime of delivery 

of a controlled substance in the car at any time during the 

ten days after the warrant was issued, especially given that 

the time between the two buys was three weeks and four 

days apart. Holding otherwise weakens the probable cause 
Cite as 333 Or App 46 (2024) 57

doctrine that is fundamental to the constitutional rights of 

all Oregon motorists.

Between the filing of the opening and answering 

briefs in this case, the Oregon Supreme Court decided State 

v. Lee, 371 Or 200, 532 P3d 894 (2023). It held that ORS 

133.545(6), which authorizes magistrates to issue warrants 

upon a showing that objects of the search are in the places 

to be searched, does not allow for the issuance of “anticipatory warrants” which contain averments that the objects of 

the search are not at the time of issuance in the place to be 

searched but will be in the future. Anticipatory warrants 

have been used in the past to combat the staleness that 

occurs rapidly in cases involving narcotics, because they 

are not executed until a triggering event, like an additional 

delivery or controlled buy, occurs. The answer to the Lee 

decision cannot be to dilute the meaning of probable cause, 

as I am concerned the majority disposition here does. The 

solution is to address ORS 133.545(6) with the body that 

created it and has the power to amend it.

Therefore, I respectfully dissent.