concurring.
When we decided State v. Maxfield, 133 Or App 371, 891 P2d 1342 (1995), I thought the opinion stood for the proposition that the seizure of the photograph portraying live, growing marijuana was insufficient by itself to afford probable cause to search the home of defendant, the person who had dropped the roll of film off at the photo finishing store. After all, the photograph could have been taken by anyone at any place. It did not provide probable cause to believe that evidence of a crime would be found at defendant’s home. Consequently, I joined in the opinion.
After reading the state’s motion for reconsideration, and the majority’s response to it, I understand now that I was mistaken. The opinion also stands for the legal proposition that, in the words of the majority, ‘ ‘by itself, a photograph of a marijuana plant is [not] seizable evidence. There is no person pictured in those photos.” 134 Or App at 544. The conclusion that the photograph is not “seizable evidence” in the context of the facts of this case is clearly wrong. The police knew that the rolls of film submitted by defendant for processing contained photographs of defendant, as well the growing marijuana. That fact leads to an inference that someone personally took a picture of the marijuana in its live state. Such a photograph of marijuana in a growing stage is evidence that, more likely than not, a crime has been committed.1 See ORS 475.992. When probable cause exists to believe that a crime has been committed, evidence of that crime is seizable. However, that is not to say that the picture also afforded probable cause to search defendant’s residence. Our prior opinion was correct in that respect. Because defendant correctly argued that the affidavit in support of the issuance of a search warrant for the search of her residence was insufficient to establish probable cause, I agree with the majority’s result, but dissociate myself from part of its reasoning.
For instance, if the photograph found in the possession of a private citizen had been of a dead body with a knife sticking in the body, the photograph would be seizable evidence that a crime had been committed. Similarly, a photograph of growing marijuana is evidence that a crime has been committed.