State v. Braun
| Decision Date | 22 September 1975 |
| Citation | 22 Or.App. 592,540 P.2d 1029,75 Adv.Sh. 3270 |
| Parties | STATE of Oregon, Respondent, v. John David BRAUN, Appellant. |
| Court | Oregon Court of Appeals |
Robert J. McCrea, Eugene, argued the cause for appellant. With him on the brief were Morrow & McCrea, P.C., Eugene.
Janet A. Metcalf, Asst. Atty. Gen., argued the cause for respondent. With her on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C.J., and LANGTRY and FORT, JJ.
Upon trial by jury defendant was convicted of criminal activity in drugs. ORS 167.207. On appeal he contends that: (1) the drugs which were the basis of the conviction should have been suppressed because they were seized pursuant to a search warrant which was based upon an affidavit containing a false statement of material fact; (2) the trial judge erred in refusing to require the state to produce a police informant at trial for interrogation by defendant; and (3) the trial judge erred in failing to grant a mistrial when the state produced evidence that, after he was arrested, defendant asked that an attorney be contacted for him.
The affidavit which was the basis of the warrant to search the defendant, his motel room, and his automobile read in part:
'That on September 3rd, 1974 I was in contact with a confidential and reliable informant who in the past has given Officer Marley and myself a considerable amount of information regarding persons dealing in the illicit trafficking of narcotics in the Portland metropolitan area. That on several of these instances related to me by this informant, the information was of such a nature that the informant had no idea that I knew this information beforehand to be true. Further, that said informant has caused for information to be given to me that will lead to the arrest of one (1) person after said information is presented to the Multnomah County Grand Jury. Further, that this informant has, at any direction, purchased for me a quantity of amphetamine sulfate which I caused to be analyzed by technicians of the Portland Police Crime Lab and the results of this was that the suspected amphetamine was in fact, amphetamine sulfate;
'That my informant informed me that within the past 48 hours my informant has been in Room #203 of the Cosmo Air-tel located at 6221 NE 82nd Street, County of Multnomah and State of Oregon. That my informant informed me that the occupant of this room is a subject known only to my informant as BRAUN. That while in Room #203 of the Cosmo Air-tel my informant did observe said John Doe also known as BRAUN in possession of Cross-tops. That my informant further observed in a Ford Motor Vehicle, California UAF--510 an additional quantity of amphetamine tablets. Further, That I know from my experience as a Narcotics Officer that 'Cross-tops' is the street name for amphetamine sulfate, a narcotic drug 'That on September 3rd, 1974 I did go to the Cosmo Air-tel located at 6221 NE 82nd Avenue, because my informant was of the opinion that said John Doe also known as BRAUN was going to leave. That I did go to the manager of the Cosmo Air-tel and was informed by that person that a person whose last name was BRAUN was registered in Room #203 of the said motel. Further, said manager did inform me that this subject BRAUN also had a vehicle registered to him, a Ford, California UAF--501 and that car was parked in front of the motel. That further, the manager reported that BRAUN had requested the motel personnel to wake him in the early morning;
'* * *.'
At the hearing on the motion to suppress, no evidence was introduced contrary to the allegations in the affidavit, with one exception--the officer who had executed the affidavit testified that it was the informant rather than a motel employe who had informed him that the automobile was shown by the motel register as belonging to the defendant. Under State v. Hughes, Or.App., 75 Adv.Sh. 859, 865, 532 P.2d 818, 821 (1975), the question is whether the issuing 'magistrate, relying only on the accurate parts of the affidavit and disregarding the inaccurate parts, (could) have independently determined there was probable cause to search * * *.'
The affidavit contained an uncontroverted statement that the reliable informant had, within 48 hours of the time the warrant was issued and served, personally observed...
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