State v. Age, 77-128

• Decision Date: 20 February 1979
• Docket Number: No. 77-128,No. 77-211,77-128,77-211
• Citation: 38 Or.App. 501,590 P.2d 759
• Parties: STATE of Oregon, Respondent, v. Jesse Lee AGE, Appellant. STATE of Oregon, Respondent, v. Alan Dale HICKS, Appellant. C; CA 9998 andC; CA 10351.
• Court: Oregon Court of Appeals

Page 759

590 P.2d 759

38 Or.App. 501

STATE of Oregon, Respondent, v. Jesse Lee AGE, Appellant.

STATE of Oregon, Respondent, v. Alan Dale HICKS, Appellant.

No. 77-128 C; CA 9998 and No. 77-211 C; CA 10351.

Court of Appeals of Oregon.

Argued and Submitted Oct. 19, 1978.

Decided Feb. 20, 1979.

S. Randall Johnson, Certified Law Student, Salem, argued the cause for appellants. With him on the brief were Gary D. Babcock, Public Defender, and Marianne Oswald, Deputy Public Defender, Salem.

Kathryn A. Logan, Certified Law Student, Salem, argued the cause for respondent. With her on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before SCHWAB, C. J., and THORNTON, TANZER and BUTTLER, JJ.

BUTTLER, Judge.

Defendants in this consolidated appeal were jointly tried and convicted for criminal activity in drugs (possession of more than one ounce of marijuana). Defendant Age was sentenced to five years on probation and defendant Hicks was sentenced to four years on probation. They have raised three assignments of error on appeal, each of which is discussed below.

I. Denial of Motion to Suppress

Defendants contend that the affidavit filed in support of a search warrant did not describe the premises to be searched with sufficient particularity to establish probable cause to authorize the issuance of the warrant. Therefore, it is argued, evidence derived from the ensuing search should have been suppressed.

Defendants' argument is based on the following portion of the affidavit executed by a police officer in support of the application for a warrant:

" * * * I learned the following information by talking to a confidential reliable citizen, a private citizen who resides at Klamath Falls, Klamath County, Oregon on May 26, 1977 and who advised me that on May 26, 1977 she went to a residence on Biehn Street in Klamath County, Klamath Falls, Oregon and spoke with an individual named Alan Hicks, who from my own personal knowledge I know Alan Hicks to reside at 2307 Biehn Street. The citizen informed me that at the residence she requested to purchase marijuana from Alan Hicks. Hicks advised the citizen that he did not have any marijuana at the time, but to return at 5:30 on May 26, 1977 at which time she could make the purchase. * * * "

Defendants contend that the affidavit did not state that the informant actually went to Hicks' residence at 2307 Biehn Street. While the contention is technically correct, such affidavits are to be tested in a commonsense, nontechnical manner, State v. Ashkar, 24 Or.App. 447, 545 P.2d 912 (1976), looking at both the facts it recites and the reasonable inferences that can be drawn from those facts. State v. Thomas, 7 Or.App. 50, 489 P.2d 962 (1971). A reasonable inference that can be drawn from the facts stated in the affidavit is that the informant talked to Alan Hicks at his residence and was told to return to that residence, which was the same residence described by the officer in his affidavit. The trial court found, and we agree, that the facts and reasonable inferences drawn therefrom, taken together, advised the magistrate that the informant went to Hicks's residence at the address stated, and that information, with the remaining facts set forth in the affidavit ¹ constituted a sufficient showing of probable cause to support the search warrant. The motion to suppress was properly denied.

II. Denial of In Camera Examination of Unnamed Informant

At trial, defendants filed motions to controvert, supported by an affidavit designed to show a substantial basis under ORS 133.693 for questioning the good faith, truthfulness, or accuracy of the evidence presented by the affiant for the search warrant. The trial judge found that defendants had not met their burden under ORS 133.693(3) and that the confidential informant existed and was reliable ² as required by ORS 133.703(b). ³ The latter two determinations were based upon the testimony of Officer Simon and defendant Hicks. The trial judge complied fully with the statutory requirements. Defendants argue on appeal that denial of an In camera examination of the confidential informant infringed upon their constitutional rights to due process and confrontation of witnesses. An In camera examination is not constitutionally required where the "informant's role does not go beyond the preliminary state of providing facts which helped form the basis of probable cause" for the search warrant, State v. Jessie, 17 Or.App. 368, 371-73, 521 P.2d 1323 Rev. den. (1974). There is nothing in the record to suggest that an In camera hearing would have affected the result in this case. The judge must determine from the Affiant that the informant exists and is reliable. ORS 133.703(b). In this case the existence of the informant was verified by defendant Hicks, who testified he asked the informant back to his house for a "date." The trial judge expressly found that Hicks' version was not believable, and that, in general, he was not a credible witness and that Officer Simon, the affiant, was credible, on the basis of which the judge found the informant was reliable.

Accordingly, the trial court did not err in denying defendants' request for an In camera examination of the unnamed informant.

III. Constitutionality of Conditions of Probation

The defendants contend that several of the conditions of their respective probations, which are set forth in the margin, ⁴ are unconstitutional and thus invalid under the principles announced in State v. Martin, 282 Or. 583, 580 P.2d 536 (1978), and State v. Fisher, 32 Or.App. 465, 574 P.2d 354 (1978). Those cases hold that conditions of probation are invalid unless they are reasonably related to the offense for which the defendant was convicted or to the needs of an effective probation.

A. Polygraph Tests

A condition of each of the probations involved herein is that the defendant-probationer submit to "lie detector" (polygraph) tests at the request of his probation officer or the district attorney's office, and that the results of any such tests be admissible in any probation revocation proceedings. While we have discussed such a condition in prior cases, we have not held squarely that requiring a probationer to submit to a polygraph test is valid. In State v. Wilson, 17 Or.App. 375, 521 P.2d 1317 (1974), Cert. den. 420 U.S. 910, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975), the question was presented, but we held that since the defendant had agreed to the polygraph stipulation, we would not reach the constitutional issue as to whether the condition was an unconstitutional infringement upon defendant's Fifth Amendment right against self-incrimination. In State v. Hovater, 37 Or.App. 557, 588 P.2d 56 (1978), we rejected that contention, stating that the trial court may not simply accept the agreement of the parties as to the conditions of the probation. However, we held in Hovater that there was no basis in the record to determine if periodic polygraph tests were reasonably necessary to accomplish the purposes of probation, and remanded the proceedings for the development of a factual basis for the condition. The statutory foundation for the trial court's determining conditions of probation is ORS 137.540, ⁵ subsection (1)(e) of which provides that the probationer shall "answer all reasonable inquiries of the probation officer." Defendants do not contend that the statutorily authorized condition unconstitutionally infringes their rights against self-incrimination; indeed, without such a condition probation would be a chancy and probably ineffective alternative to incarceration. Since the probationer must answer all reasonable inquiries of the probation officer or risk revocation, we see no impermissible extension of that condition in requiring that the probationer submit to polygraph tests. The intrusion into the area of self-incrimination is no greater; its main function appears to be the added psychological factor that if the probationer fails to tell the truth, he will be detected. Such purpose would be in furtherance of a successful probation.

Accordingly, we hold that a condition requiring the probationer to submit to polygraph tests does not violate the defendants' Fifth Amendment rights, and that the condition may be imposed, in the discretion of the trial judge, with no more than a general finding of the court that it is reasonably necessary to accomplish the purpose of probation.

However, requiring the defendants to submit to a polygraph test at the request of the district attorney is not proper. State v. Hovater, supra.

B. Warrantless Search

Our cases dealing with the probationer's submitting to a warrantless search as a condition of probation, except for State v. Culbertson, 29 Or.App. 363, 563 P.2d 1224 (1977), have dealt with overbroad conditions which would permit "any peace officer," State v. Jones, 36 Or.App. 271, 584 P.2d 349 (1978); State v. Holm, 34 Or.App. 503, 579 P.2d 860 (1978), a "police officer," State v. Fisher, supra, or "the district attorney's office," State v. Hovater, supra, to conduct or authorize the search. In each of those cases, we held that the condition was overly broad with respect to who could conduct the warrantless search. Hovater is squarely on point with respect to permitting the District Attorney's office to order or conduct the search, and we adhere to that holding.

There is, however, the requirement that the condition of probation be reasonably related to the offense for which the defendant was convicted or to the needs of an effective probation. State v. Martin, supra; State v. Hovater, supra. In State v. Fisher, supra, the defendant pled guilty to four counts of forgery in the first degree, and at the time of sentencing indicated that part of her problem was involvement with drugs. The trial court, in placing defendant on probation, imposed as a condition that the defendant consent to the search of her person, premises, or any vehicle she...