S055472, Opinion — State v. Castilleja

473
On respondent on review Michael Santos Castilleja's petition for reconsideration
filed October 2, considered and under advisement November 19, * petition for
reconsideration allowed; former opinion (345 Or 255, 192 P3d 1283) adhered to
December 18, 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)
198 P3d 937
* 345 Or 255, 192 P3d 1283 (2008).

474 	State v. Castilleja
CJS, Searches and Seizures § 168.
En Banc
Leland R. Berger, Portland, filed the petition for respon-
dent on review Michael Santos Castilleja.
No appearance on behalf of petitioner on review State of
Oregon or respondent on review Amber Serenity Castilleja.
GILLETTE, J.
The petition for reconsideration is allowed. Former opin-
ion is adhered to.

Cite as 345 Or 4 73 (2008) 	475
GILLETI'E, J.
In State v. Castilleja, 345 Or 255, 192 P3d 1283
(2008), this court held that the Court of Appeals erred in
affirming a trial court ruling that suppressed evidence of
drug activity of defendants Michael and Amber Castilleja,
who are husband and wife. The trial court had entered its
order suppressing evidence on the ground that a police offi-
cer's affidavit that led to issuance of a search warrant for
defendants' home did not supply probable cause to support
the search. In particular, as relevant here, this court held
that the Court of Appeals erred in deferring to the trial
court's decision to discount statements made to police officers
by Loewen, who is Amber Castilleja's mother and Michael
Castilleja's mother-in-law, during an initial, warrantless
search of defendants' home. This court held that Loewen's
statements to the police should not have been discounted
and, when those statements were given their due weight, it
was clear that probable cause supported the warrant. Id. at
270-71.
Petitioner 	Michael 	Castilleja 	("Michael") 	seeks
reconsideration of this court's decision. He asserts that, in
the trial court hearing on the defendants' motion to suppress,
both defendants asked the trial court to find that an initial,
warrantless entry by the police into their house was unlawful
and, therefore, that all the evidence obtained as a result of
that entry into their house should be suppressed. The trial
court agreed that the initial entry by the police into the house
was unlawful, and the state did not challenge that ruling.
Then, because information that the police obtained in that
initial search was used in a police officer's affidavit to support
a subsequent search warrant, both defendants asked the
trial court to excise the improperly obtained information
from the affidavit and determine ifthe affidavit still provided
probable cause to justify issuing the warrant.
The trial court agreed to excise from the affidavit all
information concerning what the officers saw when they first
searched the house. Among other things, however, defen-
dants also asked the trial court to excise all the statements
that Loewen made to the officers after she went inside the

house with them. Defendants argued that the officers' con-
versation with Loewen would not have taken place but for
the unlawful entry. Specifically, defendants argued that,
when Loewen was showing the officers around the house, she
was commenting on what she knew about the defendants'
drug-related conduct, such as the fact that both defendants
had 	had 	permits 	for 	possession 	of medical 	marijuana
(although she believed that Michael's permit had lapsed),
that defendants possessed marijuana in excess of their per-
mit limits, and that defendants had two pounds of marijuana
in plastic bags in a closet. That conversation, defendants
argued, would not have happened if not for the unlawful
entry. The trial court rejected that argument, stating that
nothing suggested that the conversation that Loewen had
had with the officers inside the house was anything more
than a continuation of the conversation that she had already
begun outside the house. Accordingly, the trial court declined
to excise Loewen's statements to the police officers from the
affidavit.
However, when the trial court reviewed the parts of
the affidavit remaining after the excisions to determine if the
affidavit provided probable cause to support the warrant, the
trial court discounted Loewen's statements in their entirety,
because Loewen was wrong about the validity of Michael's
medical marijuana permit and because the court believed
that Loewen was not neutral in her motives in giving the
police information. Having discounted Loewen's statements
for those reasons, the trial court concluded that the affidavit
did not provide probable cause to issue the warrant. It there-
fore suppressed the evidence seized as result of the warrant.
The state appealed that ruling to the Court of
Appeals. Michael1 cross-appealed, arguing that the trial
court erred when it failed to excise from the search warrant
affidavit the statements Loewen made to the officers inside
the house. The Court of Appeals affirmed the ruling of the
trial court suppressing the evidence seized as a result of the
warrant, State v. Castilleja, 215 Or App 235, 168 P3d 1177
1 Amber Castilleja, who was represented by different counsel, did not cross.
appeal.

Cite as 345 Or 4 73 (2008) 	477
(2007), and therefore did not need to and did not address
Michael's cross-appeal. Id. at 253-54.
We allowed the state's petition for review of the
Court of Appeals 	decision. 	Michael filed a 	merits brief
answering the state's arguments on review, in which he
stated, in a footnote, that he did not intend to abandon his
argument made on cross-appeal in the Court of Appeals.
As noted, this court reversed the decision of the
Court of Appeals. We concluded that the Court of Appeals
erred in deferring to the trial court's determinations regard-
ing the truth of the information in the affidavit and that,
when that information, including Loewen's statements, was
properly considered, the affidavit more than amply provided
probable 	cause justifying the 	search 	warrant. 	State 	v.
Castilleja, 345 Or at 270-71.
Defendant now seeks reconsideration, contending
that this court's decision revived his argument that the trial
court erred in failing to excise Loewen's statements from the
affidavit, because those statements were derived from the
illegal entry into the Castilleja home. Because this court did
not address that argument in its opinion, he asks that we do
so now. We agree with defendant that our former opinion
overlooked the point that he raises. We therefore allow recon-
sideration to address it.
Turning to the merits of his argument, Michael
asserts that all evidence derived from an illegal search must
be suppressed. He argues that, in this case, that includes
information that the police obtained from Loewen about his
drug activities, because the police officers were exploiting the
illegal entry into his home when they obtained Loewen's
statements. He therefore argues that it was incumbent on
the state to prove either that Loewen's statements inevitably
would have been obtained through lawful means, that the
police obtained the evidence independently of the earlier vio-
lation of his rights, or that the earlier violations of his rights
had such a tenuous connection to the disputed evidence that
the unlawful police conduct cannot properly be viewed as the
source of that evidence. See State v. Johnson, 335 Or 511,
520-21, 73 P3d 282 (2003) (explaining that approach); State
v. Hall, 339 Or 7, 24-25, 115 P3d 908 (2005) (same).

478 	State v. Castilleja
Here, the initial illegality is undisputed. During
much of their conversation with Loewen, the police were
unlawfully in defendants' home. However, it does not appear
on this record that where Loewen was had anything to do
with either the fact of or the content ofLoewen's statements
to the police: Whether the police had been invited into the
house or not, Loewen was going to say what she said. At
least, that was the trial court's view of the evidence. The evi-
dence 	permits that inference, 	and this court ordinarily
accepts such findings as binding. See Ball u. Gladden, 250 Or
485, 487, 443 P2d 621 {1968) (explaining that practice). We
see nothing to justify our departing from that practice here.
Michael's argument thus is not well taken, and our former
opinion should be adhered to.
The petition for reconsideration is allowed. Former
opinion is adhered to.