State v. Castilleja

*238ROSENBLUM, J.

In these consolidated actions, the state appeals from a pretrial order granting defendants’ motion to suppress evidence of marijuana discovered in their home when the police executed a search warrant there. Defendants moved to suppress the evidence, claiming that some of the information in the police affidavit in support of the warrant application had been obtained unlawfully during a warrantless search of their home. The state contended that, even without the offending information, the affidavit was sufficient to furnish probable cause to believe that, more likely than not, defendants, who held medical marijuana cards, possessed more than the maximum amount of usable marijuana allowed them under the Oregon Medical Marijuana Act (OMMA). The trial court excised the unlawfully obtained information and concluded that, without that information, the affidavit did not furnish probable cause to issue a warrant. It therefore granted defendants’ motion to suppress. The state appeals. It does not challenge the trial court’s decision to excise from the affidavit the information obtained during the initial, warrantless search. It argues only that, even without the excised information, the affidavit was sufficient to issue the search warrant. We review the trial court’s determination that the affidavit did not furnish probable cause for errors of law, but we are bound by the trial court’s factual findings that are supported by evidence in the record. We affirm.

Before we recite the facts of this case, a brief overview of the pertinent provisions of the OMMA is helpful. The 2001 version of the OMMA was in effect at the time of the search at issue in this case. ORS 475.306(1) (2001), amended by Oregon Laws 2005, chapter 822, section 2, provided that a person who possessed a “registry identification card” — commonly referred to as a “medical marijuana card” — could lawfully possess three mature marijuana plants, four immature plants, and one ounce of “usable marijuana” per mature plant. The OMMA defines “usable marijuana” as “the dried leaves and flowers of the plant Cannabis family Moraceae, and any mixture or preparation thereof, that are appropriate for medical use as allowed in ORS 475.300 to 475.346. ’Usable marijuana’ does not include the seeds, stalks and *239roots of the plant.” Former ORS 475.302(10) (2001), renumbered as ORS 475.302(11) (2005).

On October 18, 2002, Trooper Stone of the Oregon State Police obtained a warrant to search the home of defendants Michael and Amber Castilleja, who are husband and wife and who both held medical marijuana cards at the time. The sufficiency of the affidavit supporting the request for the warrant forms the basis of this appeal, so the facts that we recite here are drawn from the affidavit. The first part of the affidavit sets forth in a general fashion Stone’s training and experience. Stone stated that, in his 12 years as a police officer, he had received extensive training in the investigation of controlled substances and had participated in obtaining or executing search warrants for at least 15 marijuana-growing operations. Among other things, he stated that his “observations of marijuana include both the sight and smell of it growing and dried and marijuana in its various stages of processing.” Nothing in his statement of training and experience indicates how much usable marijuana could be obtained as a result of processing a marijuana plant or how long it takes to process a plant into dried, usable marijuana.

Stone stated in the affidavit that he was called to defendants’ home shortly after midnight on October 7, 2002. The police were summoned there after Michael was shot by intruders who were apparently attempting to steal defendants’ marijuana plants. Both defendants had gone to the hospital when Stone arrived at the scene. Officers who were already there told Stone that there were six mature marijuana plants growing in a greenhouse as well as other plants growing behind the house. Stone noted in the affidavit that the number of plants growing was within the number allowed by the OMMA. He attached a copy of the OMMA to the affidavit as an exhibit and stated, “I know that the Oregon Medical Marijuana law allows for a card holder to have three mature marijuana plants and four immature marijuana plants and that a card holder may possess up to one processed ounce of marijuana per mature plant at the growfing] site.” He also stated that he called the Oregon Health Division (OHD) and verified that both defendants had valid medical marijuana cards.

*240The affidavit also states that Stone spoke with Amber’s mother, Loewen, at defendants’ home on the night of the shooting. Loewen told the officers that Amber had called her after Michael was shot and had asked her to take defendants’ children to her home. Stone described what Loewen told him as follows:

“[Loewen] was very upset and told me she knows Amber and Michael 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 what she meant, [Loewen] said that 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 Michael and Amber’s 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 the signs that go along with drug dealing, as well as the effects that drug dealing has on children. [Loewen] told me 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 Amber and Michael 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 Amber and Michael’s bedroom closet was in two large plastic bags.”

The affidavit also states that, on October 14, 2002, Stone learned that a man named Morrison had been arrested in McMinnville in defendants’ car with nine ounces of “processed marijuana.” Stone called OHD again and was informed that Morrison was Michael’s designated primary caregiver.1

*241Stone also stated in the affidavit that, on October 17, 2002, he spoke with Detectives Rosario and Ludwig. Rosario told Stone that, on the night of the shooting, Loewen had invited him into the house and had given him information similar to what she told Stone about the possibly expired medical marijuana card and that marijuana was “all over the house.” Rosario and Ludwig also told Stone that they had returned to defendants’ home later in the morning on October 7 to interview Amber about the shooting. They told him that they noticed that the plants that had been seen earlier in the greenhouse had been harvested and were in three clothes baskets inside the house. Rosario told Stone that the baskets “appeared to contain the stems with the marijuana bud on them.” He estimated that there were “approximately three pounds [of] marijuana in the baskets.” Rosario also told Stone that he saw numerous pipes and other smoking paraphernalia in the living room while talking to Amber.

According to the affidavit, Stone spoke with Rosario again the next day. Rosario told him that he had returned to defendants’ house again the day before to interview Michael about the shooting. He told Stone that, while he was there, he “observed a box in the residence that was full of bare marijuana stems.”

Stone next stated:

“I know based on my training and experience that the average mature marijuana plant will produce approximately a pound of marijuana. I further know that mature marijuana plants can produce well over a pound of marijuana depending on the plant and the skill of the grower. I further believe based on my training and experience that the plants being grown at the Castilleja residence were capable of producing a pound or more of marijuana.”

The affidavit also includes information indicating that Stone and Rosario had seen other marijuana in the house on the night that Michael was shot, but, as we explain below, the trial court excised that information from the affidavit after ruling that their observations were made during *242an unlawful warrantless entry into defendants’ home. The state does not challenge that ruling on appeal, so the details of that information are not material here.

Stone concluded the affidavit by stating that he had probable cause to believe that evidence would be found on defendants’ property related to manufacture, possession, and delivery of a controlled substance, conspiracy to commit those offenses, endangering the welfare of a minor, and money laundering.

The search warrant was issued on October 18, 2002, and was executed three days later. According to the evidence receipt attached to the return of warrant, they seized nearly 20 pounds of marijuana. Defendants were charged with manufacture and possession of a controlled substance as well as child neglect and endangering the welfare of a child. Michael was also charged with two counts of delivery of a controlled substance.

Amber filed a pretrial motion to suppress “all evidence obtained as the result of an unlawful warrantless search” of defendants’ home and all derivative evidence. She also moved to controvert the affidavit, arguing that Stone had left information out of the affidavit that would have affected the magistrate’s decision to issue the warrant. Michael joined in those motions. The trial court decided to hear the motions separately, concluding that, if it granted the motion to suppress based on the warrantless search of defendants’ home, there would be no need to hear the motion to controvert. At the hearing on the motion to suppress, defendants argued that the initial police entry into their home on October 7 constituted a warrantless search because defendants had not consented to their entry. They contended that none of the observations made in their house that night should have been included in the search warrant affidavit.2

The trial court agreed. To determine whether the evidence found upon execution of the search warrant was independent of the unlawful entry into defendants’ home, the court first excised from the affidavit all information related to *243the observations made by the police during that entry and then analyzed the remaining information to determine whether it furnished probable cause to issue a search warrant. Defendants argued to the court, among other things, that the OMMA does not limit the possession of unusable marijuana and that the affidavit did not establish that any of the marijuana seen in their house was usable. In response, the state did not argue that the OMMA does limit possession of unusable marijuana. Rather, it argued that Stone’s affidavit demonstrated that defendants possessed more than the six ounces of marijuana permitted by the OMMA.

The court concluded that the affidavit did not furnish probable cause to search defendants’ property. It concluded that the marijuana that Morrison was arrested with did not contribute to probable cause, because, in the court’s view, “it’s [not] too far a stretch to presume that this was marijuana that belonged to Mr. Morrison. It was with him. It was in his possession.” With respect to Loewen’s statements, the court found that she lacked veracity and that the affidavit did not establish the basis of her knowledge or that the marijuana that she told the police about was usable. The court doubted Loewen’s veracity in part because she had been mistaken about the status of Michael’s medical marijuana card. It stated, “[T]he manner in which she presented the statements [about the card] and the information that she had, I think painted her as being maybe somewhat less than neutral on the issue.”

The court also found insufficient the information regarding the freshly harvested marijuana that Rosario and Ludwig had seen. It stated, “[T]here’s nothing to tell me what this three pounds of harvested marijuana would have turned into in terms of usable marijuana, or whether [defendants] would have actually kept that in their possession or done something else with it if they determined that it was too much.” After excising the unlawfully obtained information, the court determined that the affidavit did not support probable cause. It therefore granted defendants’ motion to suppress.3

*244On appeal, the state argues that the trial court erred because it failed to defer to the issuing magistrate’s probable cause determination. It argues that both Loewen’s and Rosario’s statements in the affidavit were sufficient to allow a reasonable person to believe that more than six ounces of usable marijuana — the maximum amount allowed under the OMMA at the time for two medical marijuana cardholders-— would probably be found at defendants’ home.4 The state also contends that probable cause was supported by the fact that Morrison was arrested with nine ounces of marijuana in defendants’ car.5

Defendants respond that, because the trial court excised information in the affidavit, it was not required to defer to the magistrate’s probable cause determination. They also argue that the affidavit did not furnish a reason to believe that any of the marijuana in their house was usable or that it would have yielded more than six ounces of usable marijuana by the time the warrant was issued. Michael also cross-assigns error to the trial court’s refusal to excise additional statements from the affidavit.

We begin with the parties’ arguments concerning deference to the magistrate’s probable cause determination because the issue implicates our standard of review. Probable cause exists if the issuing magistrate “could reasonably conclude that seizable things probably will be found in the place to be searched.” State v. Apolo, 126 Or App 652, 656, 870 P2d 243, rev den, 319 Or 81 (1994). Ordinarily, review of an application for a search warrant is “limited to determining whether, on the basis of the information contained in the application for the warrant, a neutral and detached magistrate could have concluded that there was probable cause * * State v. Binner, 128 Or App 639, 645, 877 P2d 642, rev den, 320 Or 325 (1994). “In testing an affidavit, a court is to *245construe it, in a commonsense, nontechnical, and realistic fashion looking at the facts recited and the reasonable inferences that can be drawn from those [facts]State v. Wilson, 178 Or App 163, 167, 35 P3d 1111 (2001) (citation omitted; brackets in Wilson). “Because of the preference for warranted searches over those conducted without prior judicial authorization, doubtful cases are to be resolved by deferring to an issuing magistrate’s determination of probable cause.” Id.

However, when an application for a search warrant includes constitutionally tainted information, a reviewing court must excise that information and determine whether the remaining information in the application furnishes probable cause. That is so because the purpose of the exclusionary rule under Article I, section 9, of the Oregon Constitution is to restore the defendant to the position he or she would have been in had the police stayed within the law. State v. Hall, 339 Or 7, 24, 115 P3d 908 (2005). Thus, evidence discovered after unlawful police conduct is not subject to suppression if the evidence did not derive from the unlawful conduct. Id. at 25. If a defendant establishes a “but for” connection between the police illegality and the evidence, the state may show that the evidence did not derive from the unlawful conduct by showing that the police obtained it independently of the unlawful conduct. Id.

Where evidence was discovered by means of a search warrant that included unlawfully obtained information, the evidence is independent of the unlawful conduct if the lawfully obtained information in the search warrant application by itself established probable cause to issue the warrant. See Binner, 128 Or App at 645-46 (“That an application for a warrant contains some information that was obtained in violation of a defendant’s constitutional rights does not compel the conclusion that the search conducted pursuant to that warrant was invalid.”). As we explained in Binner, “[w]hen an application includes constitutionally tainted information, the correct action is for the magistrate and reviewing court to excise from the application all such information and to determine whether the remaining information is sufficient to establish probable cause.” Id. at 646.

*246When the police illegality is not revealed until after the warrant has been executed — in other words, until the case is before a trial court — the trial court essentially steps into the shoes of the magistrate and determines whether the lawfully obtained information in the affidavit supports issuance of a warrant. See State v. Harp, 299 Or 1, 10, 697 P2d 548 (1985) (when the magistrate’s decision to issue a warrant was the product of “faulty information,” the sufficiency of the affidavit must be assessed by the reviewing court independently of the magistrate’s decision).6 In doing so, the court goes through the same process that a magistrate does, which includes fact-finding, see ORS 133.555. The court must determine whether the affidavit in its totality establishes probable cause. State v. Culley, 198 Or App 366, 373, 108 P3d 1179 (2005). If the lawfully obtained information in the affidavit is sufficient to furnish probable cause to issue a search warrant, then any evidence found pursuant to the warrant is independent of the police illegality and thus is not subject to suppression. Binner, 128 Or App at 646.

In this case, the trial court ruled that the initial police entry into defendants’ home was an unlawful warrant-less search under Article I, section 9, a ruling that the state does not challenge. The court therefore excised from the affidavit all information derived from the initial entry.7 Given *247that the affidavit had included tainted information, the court was correct in reviewing it independently of the magistrate’s decision. We reject the state’s assertion that the trial court erred by failing to defer to the magistrate’s determination that probable cause existed.

We turn to the parties’ arguments as to whether the affidavit, as excised, furnished probable cause. It is important to note what the parties — in particular, the state — do and do not argue. The parties frame their arguments exclusively in terms of whether the affidavit demonstrated probable cause to believe that defendants possessed more than six ounces of usable marijuana as defined in the OMMA. Conversely, the state did not raise before the trial court — and does not advance on appeal — either or both of two arguments that Judge Edmonds now invokes in his dissent. First, the state has never contended that, because medical marijuana is an affirmative defense, it was sufficient for the affidavit to demonstrate probable cause to believe that defendants possessed any amount of marijuana.8 Second, the state has never contended that possession of any amount over six ounces was unlawful, even if the marijuana was not usable, *248and, therefore, that it was sufficient for the affidavit to show that defendants probably possessed more than six ounces of any marijuana — usable or not.9 Because it would be inappropriate to reverse the trial court on grounds that were neither preserved in that court nor presented to us by the parties on appeal, we voice no opinion on those issues.

Rather, adhering to fundamental precepts of preservation, we address the propriety of suppression as that issue was framed in the trial court and has been presented to us on appeal.10 We consider only whether the affidavit demonstrated that defendants likely possessed more than six ounces of usable marijuana.

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. Culley, 198 Or App at 373. In other words, like the trial court, we are not required to draw all reasonable inferences that are consistent with the magistrate’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. Id. *249at 374. “Normally, in the absence of other indications of the trial court’s findings, we resolve all disputed factual issues to support its ultimate conclusion.” State v. Pelster/Boyer, 172 Or App 596, 599 n 2, 21 P3d 106, rev den, 332 Or 632 (2001). “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.” Culley, 198 Or App at 374. 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 factual findings and all reasonable inferences that are consistent with that conclusion.

In reaching the ultimate conclusion that the affidavit did not demonstrate probable cause, the trial court necessarily 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 determination if any evidence in the record supports it. See State v. Johnson, 335 Or 511, 523, 73 P3d 282 (2003) (“[W]e are bound by a trial court’s ‘finding’ that a party’s evidence is not sufficiently persuasive.”); Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968) (“If findings are not made on all such facts, and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the ultimate conclusion * * *.”).

The linchpin of our analysis of the trial court’s determination is the distinction between “marijuana” as defined in the longstanding general prohibition of marijuana-related activities and “usable marijuana” as defined more recently in the OMMA. The general definition includes everything from viable seeds and growing plants to harvested plants in the drying process and fully dried leaves and flowers. ORS 475.005(16).11 “Usable marijuana,” on the other hand, *250includes only dried leaves and flowers and usable preparations or mixtures thereof. ORS 475.302(H).12 Perhaps the most significant distinction is that the general definition of “marijuana” includes “wet” marijuana — that is, parts of the plant that have been harvested but are not yet dry — whereas “usable marijuana” does not. The three-ounce-per-cardholder limit on usable marijuana thus does not include wet marijuana. In fact, the OMMA places no weight limit at all on wet marijuana.13 Thus, an affidavit that establishes that a medical marijuana cardholder possesses, for example, four ounces of “marijuana,” without further elaboration as to the condition of the marijuana, is insufficient to demonstrate that the cardholder possesses more than three ounces of “usable marijuana.” The affidavit must state facts demonstrating, either explicitly or implicitly, whether the marijuana is usable.

In this case, evidence in the record supports the trial court’s determination that the information in Stone’s affidavit did not establish that the marijuana in defendants’ home was usable. We begin with Loewen’s statement that defendants had “two pounds of marijuana” in the bedroom closet.14 The trial court determined that her statement did not support probable cause because it found that she lacked veracity,15 that the affidavit did not establish the basis of her *251knowledge, and that her statement failed to establish whether the marijuana was usable.

With respect to the issue of veracity, the state argues that Loewen never expressed any certainty that Michael’s medical marijuana card was invalid and, therefore, that her statements about the card were merely inaccurate and not dishonest. Thus, according to the state, her statements about the card provided no basis for disregarding her other statements. We disagree. The trial court could reasonably infer that, although Loewen’s statements were couched in terms of uncertainty, her intent was to mislead the police into thinking that Michael did not possess a valid medical marijuana card. Thus, we are bound by the trial court’s finding that she lacked veracity.

Even if the determination 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. The state argues that it is reasonable to infer that Loewen knew that defendants were limited to possessing six ounces of usable marijuana and, thus, in light of her statement that she knew that they were “way over” the legal limit, it is reasonable to infer that she had observed more than six ounces of usable marijuana. That argument, however, disregards our standard of review. As noted, the question is not whether the trial court could have drawn reasonable inferences that would support probable cause; rather, it is whether the inferences that the court did draw are reasonable. Again, our standard of review, properly understood and applied, compels affirmance.

According to the affidavit, Loewen told Stone that she knew that defendants were “not supposed to have more than three ounces of marijuana apiece in addition to the growing marijuana.” Loewen did not state that she knew that they were limited to three ounces of usable marijuana apiece. *252Further, because the affidavit did not explain the basis of her purported knowledge of the limits of the OMMA, the trial court had no context for assessing whether she had an accurate understanding of the law.16 The trial court could reasonably infer that Loewen harbored a mistaken belief that the OMMA limited possession to three ounces of any harvested marijuana — usable or not.

We fully appreciate that that is not the only reasonable inference that the trial court could have drawn — one could well have drawn the contrary inference. Nevertheless, given our standard of review, the availability of other reasonable inferences is immaterial. Thus, we reject the state’s argument that Loewen’s statement that she knew that defendants were “way over” the legal limit necessarily demonstrates that she had observed more than six ounces of usable marijuana.

In a related sense, the state argues that the only reasonable inference that can be drawn is that the bags that Loewen said were in the closet contained at least some usable marijuana; in the state’s view, it is not reasonable to infer that defendants would have stored two pounds of entirely unusable marijuana in their closet rather than simply disposing of it. We disagree. Although we might not draw the same inference if we were reviewing the affidavit in the first instance, we cannot say that it was unreasonable for the trial court to infer that the marijuana in the closet was not usable. For example, it would not be unreasonable to infer that defendants, who legally grew and processed marijuana, would be saving the unusable marijuana in plastic bags for disposal at an appropriate time and place. Because the inference that the trial court made is reasonable, we are bound by it.

We turn next to the statements in the affidavit about the freshly harvested marijuana that Rosario and Ludwig saw in baskets in defendants’ living room. The state argues *253that Rosario’s estimate that defendants had about three pounds of marijuana, coupled with Stone’s assertion that each plant was capable of producing a pound or more of marijuana, furnish probable cause to believe that defendants possessed an unlawful amount of marijuana. There are three problems with the state’s argument. First, the affidavit says nothing about how long it takes freshly harvested marijuana to dry. Thus, it is not possible to determine whether the marijuana that Rosario and Ludwig saw would have been usable by the time Stone applied for the search warrant. Second, Stone never saw the marijuana in the living room, so his “training and experience”-based averment did not relate to any personally observed circumstances. Third, neither Rosario nor Stone said that the harvested marijuana would yield more than six ounces of usable marijuana. As the trial court stated, “there is nothing to tell [us] what this three pounds of harvested marijuana would have tinned into in terms of usable marijuana * * It follows that the court could reasonably infer that it would not yield more than six ounces of usable marijuana.

We turn finally to the statements in the affidavit concerning Morrison and the nine ounces of marijuana that were in his possession when he was arrested. The trial court determined that the affidavit did not establish that the marijuana that Morrison was arrested with was connected with defendants. Nothing in the affidavit precludes the inference that Morrison obtained the marijuana from someone other than defendants, so the trial court’s determination is reasonable, and we are bound by it on appeal. Information concerning marijuana that was not shown to have any connection with defendants cannot support probable cause to believe that other marijuana will more likely than not be found in defendants’ home.

In sum, in light of the facts as the trial court found them, the affidavit did not establish probable cause to believe that, more likely than not, more than six ounces of usable marijuana would be found at defendants’ home. We therefore reject the state’s assignment of error to the trial court’s order granting the motion to suppress. Because we reject the state’s assignment of error, we need not address Michael’s *254cross-assignment of error to the trial court’s refusal to excise additional information from the affidavit.

Affirmed.

ORS 475.312 allows a medical marijuana cardholder to designate a primary caregiver. That person may assist in the medical use of marijuana and may *241manufacture and possess marijuana as long as the cardholder and the designated primary caregiver do not collectively possess more than the cardholder alone may possess. See ORS 475.306(1) (2001); ORS 475.320 (2005).

Defendants did not argue that the information concerning the marijuana plants in the greenhouse and behind the residence was subject to being excised.

Because the trial court granted defendants’ motion to suppress, it did not hold a hearing on or rule on their motion to controvert the affidavit.

The state does not argue that the affidavit included sufficient information to furnish probable cause to believe that evidence related to endangering the welfare of a child or money laundering would be found. Accordingly, we do not consider the sufficiency of the affidavit in those respects.

The state also argues that probable cause is supported by a statement in the affidavit indicating that Amber had told Rosario that defendants always have marijuana in the car. However, the trial court excised that statement from the affidavit, so we do not consider it.

Judge Edmonds asserts that, after a reviewing court excises information from an affidavit, it reviews “the remaining information in the affidavit for probable cause, as it would have done had no portions of the affidavit been excised.” 215 Or App at 260 (Edmonds, J., dissenting). However, the review that the court performs after excising information is not the same as the review of an affidavit that has had nothing excised. If no information has been excised, the court accepts all reasonable inferences that the issuing magistrate might have made in support of issuing the warrant. If information has been excised, the court tests the affidavit anew, independently of the magistrate’s decision.

Judge Edmonds expresses some uncertainty as to how the trial court proceeded, and he assumes that the court evaluated Loewen’s veracity as part of the excising procedure. See 215 Or App at 260-61 (Edmonds, J., dissenting). That is incorrect. The pertinent events unfolded as follows: (1) Defendants filed a motion to suppress all evidence derived from the warrantless search of their home and a separate motion to controvert alleging that Stone had left relevant information out of the affidavit. (2) The court held a hearing on the motion to suppress in order to determine the legality of the warrantless search. (3) The court concluded that the search was unlawful. (4) The court excised from the affidavit all information based on observations made during the warrantless search. (5) The court analyzed the *247remaining information in the affidavit to determine whether it established probable cause. (6) As part of that analysis, the court found that Loewen’s statements were unreliable or unhelpful and thus added little or no weight to probable cause. (7) The court concluded that the affidavit did not establish probable cause. The court did not hold a hearing on, or rule on, the motion to controvert, and it did not excise any information pursuant to ORS 133.693. Judge Edmonds’s discussion under that statute, see 215 Or App at 261-64 (Edmonds, J., dissenting), is simply not germane to what actually happened in this case.

In Judge Edmonds’s view, the proposition that a search warrant affidavit need not negate a statutorily provided affirmative defense constitutes an argument as to why explicit references to amounts of usable marijuana in search warrant affidavits are not required. 215 Or App at 269-70 (Edmonds, J., dissenting). In support of that argument, he asserts that this court “has a duty to correctly interpret the meaning and the application of statutes that govern the issue, whether or not a particular statute is relied on by the parties.” Id. at 269 n 9. We have no quarrel with that assertion, but our duty to correctly construe and apply statutes does not extend to making the parties’ arguments for them, even if the arguments are statutorily based. See State v. Walker, 192 Or App 535, 542, 86 P3d 690, rev den, 337 Or 327 (2004) (“The state plainly put in issue the proper construction of the statute. That is all that is required. * * * Once the construction of the statute is before us, we have an obligation to arrive at the correct construction, regardless of the parties’ arguments.” (Emphasis added.)). The proposition that a search warrant affidavit need not negate an affirmative defense, even if a valid argument, is not an argument that the state advanced either at trial or in this court.

Judge Edmonds contends that the state both preserved that argument in the trial court and advances it on appeal. 215 Or App at 269 n 9 (Edmonds, J., dissenting). We do not agree that the state adequately preserved any such argument at trial, but, in all events, any discussion of preservation on that point would be purely academic because the state does not advance that argument on appeal. According to Judge Edmonds, the state expressly argues in its brief to this court that “explicit references to amounts of‘usable marijuana’ were not required to justify the search warrant.” Id. Judge Edmonds takes that argument out of context. The point of the state’s argument is that it is implicit in the affidavit that the marijuana was usable, not that usability is irrelevant. The other sentence that the dissent quotes from the state’s brief demonstrates that that is the state’s point: “ ‘[t]he affidavit in this case provided probable cause to believe that defendants possessed more than six ounces of usable marijuana.’ ” Id. (Brackets in Judge Edmonds’s opinion; emphasis added.) Nowhere in its brief does the state argue that usability is irrelevant.

“[A]lthough it is axiomatic that we may affirm on grounds not argued to the trial court, there is no authority for the proposition that, without invoking ‘plain error,’ we can reverse the trial court on grounds not argued to it.” State ex rel Juv. Dept. v. Pfaff, 164 Or App 470, 480 n 6, 994 P2d 147 (1999), rev den, 331 Or 193 (2000) (emphasis in original). The state does not argue that the trial court committed plain error.

ORS 475.005(16) provides:

“ ‘Marijuana’ means all parts of the plant Cannabis family Moraceae, whether growing or not; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any *250other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.”

ORS 475.302(11) provides:

“ ‘Usable marijuana’ means the dried leaves and flowers of the plant Cannabis family Moraceae, and any mixture or preparation thereof, that are appropriate for medical use as allowed in ORS 475.300 to 475.346. “Usable marijuana’ does not include the seeds, stalks and roots of the plant.”

The OMMA does not expressly authorize possession of wet marijuana. It may be that harvested marijuana continues to constitute a “plant” until it is dried and, thus, that possession of wet marijuana is both authorized and limited by the OMMA provision allowing a medical marijuana cardholder to possess up to four immature and three mature plants. That issue is not before us, so we express no opinion as to it. For present purposes, it is necessary only to note that wet marijuana does not constitute usable marijuana.

Loewen also told Stone that defendants had marijuana “all over the house, indicating there was marijuana on the floor and marijuana drying in the hack of the residence.” That statement is unhelpful because it does not say whether the marijuana was, or could become, usable.

Judge Edmonds asserts that a court has no authority to make veracity findings outside the context of a motion to controvert. Castilleja, 215 Or App at 260, 266 (Edmonds, J., dissenting). That is incorrect. As part of the general obligation to *251construe an affidavit in a “commonsense and realistic fashion” to determine from the totality of the circumstances whether there is probable cause, the court must determine pertinent factors such as the reliability and veracity of informants. See State v. Johnson, 340 Or 319, 329, 131 P3d 173 (2006); Pelster/Boyer, 172 Or App at 602; State v. Milks/Sales, 127 Or App 397, 401, 872 P2d 988 (1994) (“The trial court correctly concluded that [a named informant] could not be found to be a credible informant.”).

Judge Edmonds asserts that Loewen had “personal experience with * * * the amount of marijuana permitted under the OMMA.” 215 Or App at 272 (Edmonds, J., dissenting). The affidavit says nothing about how she obtained knowledge about the OMMA, let alone that she gained it through “personal experience.”