State v. Collicott
| Citation | 56 Or.App. 605,642 P.2d 1187 |
| Decision Date | 13 May 1982 |
| Docket Number | No. C80-11,C80-11 |
| Parties | STATE of Oregon, Respondent, v. Jay Monroe COLLICOTT, Appellant. 33999; CA A20816. |
| Court | Court of Appeals of Oregon |
Clint A. Lonergan, Portland, argued the cause for appellant. With him on the brief were Howard R. Lonergan, and Richard L. Lonergan, Portland.
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.
Before GILLETTE, P. J., JOSEPH, C. J., and ROBERTS, Judge Pro Tem.
Defendant appeals his conviction for possession of a controlled substance. 1 He contends that the trial court erred in denying his motion to suppress evidence found at his residence as the result of a warrantless search. Although the issue framed by the parties is whether there were exigent circumstances to justify the warrantless search, the primary question is at what time probable cause arose.
In the presence of police, the women telephoned defendant and arranged to meet him and another man at defendant's house on the evening of September 19, 1980. The women were told they would receive drugs for services and that drugs would be at the house. They were to leave defendant's house for Prineville, where the filming of a pornographic movie would take place.
Police were to follow the women to the house, and two officers were to wait in an unmarked car and watch the driveway. Deputy Sayler and Deputy Farr were to wait in a telephone booth some six blocks away, and the women were to call there and use the words "Uncle Charlie" as soon as they saw any narcotics. The police informed the women that, if no telephone call were made, they would go into the house to "save" them if they were not out within 10 minutes.
Everything was carried out as planned. The women were followed to defendant's house. Two to five minutes after entering, they called Deputy Farr at the designated phone booth and gave him the "Uncle Charlie" signal. The police then knocked on the door and, when the latch clicked, opened the door with their weapons drawn. They saw "Mickey Mouse acid" 2 on the coffee table seized it and then searched the house. 3 A search warrant was never sought.
The trial court concluded that, because
" * * * it wouldn't necessarily be true that the drugs would be on the premises that were searched in this case * * * (and) the first time that the police really had that information was when the telephone call came from the girls with the prearranged signal," (emphasis supplied)
the police did not have probable cause to believe drugs would be present at defendant's residence until that prearranged signal was given. Because defendant's departure for Prineville was imminent at the time of the signal, the court further concluded, there were exigent circumstances justifying the warrantless search.
The trial court misapplied the probable cause standard. Probable cause does not require certainty. While a mere possibility that drugs would be present at defendant's residence would not give rise to probable cause, State v. Feehely, 27 Or.App. 343, 347, 556 P.2d 142 (1976), rev. den. (1977), a "well-warranted suspicion" would. State v. Evans, 16 Or.App. 189, 193, 517 P.2d 1225, rev. den. (1974); but see State v. Butler, 56 Or.App. 318, 641 P.2d 655 (1982).
The police had ample grounds to believe that the informants were credible and that their information was reliable. 4 According to Deputy Sayler's testimony, the women said that they were familiar with drugs, that they knew what "Mickey Mouse acid" looked like and that they had "in fact, experimented at one time or another with some drugs." He said that they had earlier turned over to police marijuana which had been given them at another house by defendant and the other man. Deputy Sayler stood next to the women as they made the telephone call to defendant. He instructed them to ask about the pornographic movie and overheard them ask about the presence of drugs at defendant's house. They indicated defendant's affirmative replies. The entire plan was premised on the reliability of the two informants. There is no reason to believe that the informants were more credible or their information more reliable at the moment they gave the "Uncle Charlie" signal than when they telephoned defendant in the presence of the police. We conclude that the police had probable cause to believe drugs would be present at defendant's residence at the time the women made the arrangement to meet defendant. 5
The state points out that Deputy Sayler testified that, although he personally believed that defendant would have drugs at his residence, he did not think that he had sufficient cause for that belief to obtain a search warrant. Be that as it may, an officer's subjective belief as to the existence of probable cause is not determinative. See State v. Cloman, 254 Or. 1, 456 P.2d 67 (1969); State v. Christian, 35 Or.App. 339, 343, 581 P.2d 132, rev. den. 284 Or. 521 (1978).
Stockton testified that she telephoned defendant two to three days before they were to meet. Deputy Sayler stated that the phone call was made either one or two days before the meeting. In either event, the officers had time to obtain a warrant before the planned meeting. See State v. Rubert, 46 Or.App. 843, 612 P.2d 771 (1980). The exigency that the evidence would be destroyed was brought about by the police and, as such, cannot support the warrantless entry into defendant's house. State v. Fondren, 285 Or. 361, 367, 591 P.2d 1374 (1979). What was said in State v. Matsen/Wilson, 287 Or. 581, 587, 601 P.2d 784 (1979), is particularly in point:
"The police cannot weave together a web of information, then claim exigent circumstances when the suspect arrives and can conveniently be snared."
Reversed and remanded for a new trial.
I concur in the lead opinion, and write only to note how narrow our holding is, and to answer two questions it might, at first glance, appear to create.
We hold today that an officer...
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...they respond to turn out to be false. "Probable cause" to conduct a warrantless search does not require certainty. State v. Collicott, 56 Or.App. 605, 608, 642 P.2d 1187, rev. den., 293 Or. 190, 648 P.2d 852 (1982). In general, probable cause to search exists when a reasonable person would ......
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