State v. Carlile

• Decision Date: 28 November 1980
• Citation: 619 P.2d 1280,290 Or. 161
• Parties: STATE of Oregon, Respondent, v. Judith Ann CARLILE, Petitioner. STATE of Oregon, Respondent, v. Robert Morgan REITER, Petitioner. STATE of Oregon, Respondent, v. David SHAW, Petitioner. CA 12378; SC 26792, CA 12377; SC 26803 and CA 12379; SC 26804.
• Court: Oregon Supreme Court

Page 1280

619 P.2d 1280

290 Or. 161

STATE of Oregon, Respondent, v. Judith Ann CARLILE, Petitioner.

STATE of Oregon, Respondent, v. Robert Morgan REITER, Petitioner.

STATE of Oregon, Respondent, v. David SHAW, Petitioner.

CA 12378; SC 26792, CA 12377; SC 26803 and CA 12379; SC 26804.

Supreme Court of Oregon.

Argued and Submitted June 2, 1980.

Decided Nov. 28, 1980.

Laurie K. Smith of Frye, Smith & Franz, P. C., Eugene, argued the cause and filed briefs for petitioner, Carlile.

Robert J. McCrea, Eugene, argued the cause for petitioner, Reiter. With him on the briefs were Paul R. Frisch and Morrow, McCrea & Divita, P. C., Eugene.

Donald D. Diment, Jr., argued the cause for petitioner, Shaw. With him on the briefs were Lauren S. Holland and Diment, Jagger & Billings, Eugene.

[290 Or. 162-A] Frederick A. Hugi, Asst. Dist. Atty., Eugene, argued the cause for respondent. With him on the briefs was J. Pat Horton, Dist. Atty., Eugene.

Before DENECKE, C. J., and TONGUE, HOWELL, LENT, LINDE and PETERSON, JJ.

HOWELL, Justice.

In these three consolidated cases, the defendants challenge the legal sufficiency of the affidavits upon which a Lane County district judge relied in finding probable cause to issue search warrants to conduct searches of defendants' homes. Defendants contend that the affidavits did not establish the veracity of the police informants, as required by our decisions and those of the United States Supreme Court. The trial court agreed and granted defendants' motions to suppress. The state appealed, ORS 168.030(3), and the Court of Appeals reversed in per curiam opinions. State v. Carlile, 43 Or.App. 692, 603 P.2d 783 (1979); State v. Reiter, 41 Or.App. 389, 598 P.2d 699 (1979); State v. Shaw, 41 Or.App. 632, 598 P.2d 1305 (1979). We allowed review to consider whether the results below are consistent with the requirements of ORS 133.545; article I, section 9 of the Oregon Constitution; and the fourth amendment to the United States Constitution. ¹

In State v. Montigue, 288 Or. 359, 605 P.2d 656 (1980), we applied the "two-pronged test" of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), for analyzing the trustworthiness of hearsay information offered to show probable cause to obtain a search warrant. We held that the test for determining the sufficiency of an affidavit based on facts supplied by informants is (1) whether the affidavit sets forth the informant's "basis of knowledge" and (2) whether the affidavit sets forth facts showing the informant's "veracity" by indicating either that the informant is credible or that his information is reliable. State v. Montigue, supra 288 Or. at 362, 605 P.2d 654. See also Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741 (1974).

Montigue involved an affidavit based on hearsay information provided by a named "citizen-informer." The present cases involve an issue not presented in Montigue, that is, the sufficiency of affidavits that are based on hearsay information supplied, not by "citizen-informers," but by named informers who are criminally involved.

Challenges to the sufficiency of two search warrants are involved. The first warrant covered the Carlile residence; the second warrant covered the home shared by Reiter and Shaw. In support of their application for the Carlile warrant, police filed an affidavit by Officer Dennis Williams of the Eugene Police Department. The affidavit stated, in relevant part:

"That I have been working a series of narcotics transactions with David Guth of the Lane Interagency Narcotics Team (LINT). That Mr. Guth has been a LINT agent for the past 4 years and has had extensive training in the identification and recognition of dangerous and narcotic drugs.

"That Mr. Guth indicated to me that on the evening of 30 March 1978 he had a conversation with Joan Alma Sundstrom, 936 Adams, Eugene, Lane County, Oregon. That Joan Sundstrom had in her possession a white powder substance that subsequently field tested positive for the Narcotic Drug Cocaine.

"That Mr. Guth indicated that Joan Sundstrom said that earlier on 30 March 1978 she had been in Judith Carlisle's (sic) residence where she had obtained the Cocaine.

"That surveillance by police agents indicated that Joan Sundstrom had entered the Carlisle residence which is located at 1160 Almaden, Eugene, Lane County, Oregon. That a check with the Eugene Telephone directory further confirms that Judith Carlisle resides at 1160 Almaden, Eugene, Lane County, Oregon."

Carlile challenges the sufficiency of this affidavit on grounds that it gave the judge no basis to believe Sundstrom's allegations. She argues that the affidavit fails to show that Sundstrom was either a credible source or, on this occasion, a reliable informant. Carlile contends that Sundstrom's admission of criminal involvement places Sundstrom's credibility under suspicion.

The State contends that Sundstrom's reliability and credibility was established in the affidavit by the following: Sundstrom's name and address; and statements that police surveillance indicated that Sundstrom had been to the Carlile residence, that Sundstrom admitted obtaining cocaine from Carlile (which is an admission against penal interest), and that police confirmed that Sundstrom possessed cocaine.

We held in Montigue that the informant there was entitled to a presumption of veracity because the magistrate issuing the search warrant could infer from the affidavit that the informant, who was named, was a citizen-informer who had voluntarily initiated the report of a crime. The naming of the informant was not sufficient to establish the informant's veracity. But the fact that the named citizen-informer had voluntarily initiated the report of criminal activity supported issuance of the search warrant.

We noted in Montigue that the naming of an informant is one factor which may be weighed in determining the sufficiency of an affidavit. 288 Or. at 365, 605 P.2d 654, quoting 1 LaFave, Search and Seizure 599, § 3.4 (1978). We explained that by revealing her name, and thus exposing her identity, an informant may be liable for damages in a civil action for malicious prosecution or may be called later as a witness so as to be exposed to the penalties of perjury if her testimony is contrary to the facts stated in the affidavit. 288 Or. at 367, 605 P.2d 654.

In the present case, therefore, the naming of the informant was one factor that would lead a judge to infer that the informant was telling the truth.

With respect to Sundstrom's admission of criminal involvement, we refer to the decision of the United States Supreme Court in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). In that case a search warrant was issued on the basis of an affidavit by a federal tax investigator which recited that the investigator received information from an unnamed informant. The informant had stated that he had purchased illicit whiskey from within the residence described in the warrant. The investigator also stated in his affidavit that he had personal knowledge of the illegal activity.

The Harris court upheld the sufficiency of the affidavit, stating:

"Quite apart from the affiant's own knowledge of respondent's activities, there was an additional reason for crediting the informant's tip. Here the warrant's affidavit recited extrajudicial statements of a declarant, who feared for his life and safety if his identity was revealed, that over the past two years he had many times and recently purchased 'illicit whiskey.' These statements were against the informant's penal interest, for he thereby admitted major elements of an offense under the Internal Revenue Code. Section 5205(a) (2), Title 26, United State Code, proscribes the sale, purchase, or possession of unstamped liquor.

"Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements. People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility-sufficient at least to support a finding of probable cause to search. That the informant may be paid or promised a 'break' does not eliminate the residual risk and opprobrium of having admitted criminal conduct. Concededly admissions of crime do not always lend credibility to contemporaneous or later accusations of another. But here the informant's admission that over a long period and currently he had been buying illicit liquor on certain premises itself and without more,...