State v. Diaz

• Decision Date: 23 May 1977
• Parties: STATE of Oregon, Respondent, v. Steven Leroy DIAZ, Appellant.
• Court: Oregon Court of Appeals

Page 1066

564 P.2d 1066

29 Or.App. 523

STATE of Oregon, Respondent, v. Steven Leroy DIAZ, Appellant.

Court of Appeals of Oregon.

Argued and Submitted March 21, 1977.

Decided May 23, 1977.

Gary L. Hooper, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary Babcock, Public Defender, Salem.

Catherine Allan, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and LEE and RICHARDSON, JJ.

RICHARDSON, Judge.

Defendant was convicted of criminal activity in drugs, ORS 167.207, for the possession of hashish. The sole issue on appeal is whether the police had a right to seize the hashish. The police entered the residence where defendant was living to execute a search warrant authorizing them to search for the fruits of a residence burglary. While searching the residence the police seized a film canister which contained the hashish. Defendant asserts there was not sufficient information in the search warrant affidavit to support issuance of the warrant. Secondly, he contends, if the warrant was properly issued and the police were properly on the premises, there was no probable cause to believe the film canister contained an illegal drug.

Defendant filed a motion to suppress the evidence (the hashish) and a supplemental motion to controvert the affidavit. The two motions were heard together prior to the trial. The motion to suppress was denied.

A supplementary motion to controvert the contents of a search warrant affidavit is authorized by ORS 133.693(2). If, during the hearing on a motion to suppress evidence obtained by search warrant, the defendant establishes the information presented to the issuing magistrate was not offered in good faith, was not accurate and was not truthful, the court then shall determine if the issuing magistrate could, relying on the accurate parts of the affidavit and disregarding the inaccurate parts, have determined there was probable cause to search. ORS 133.693(5); State v. McManus, 267 Or. 238, 517 P.2d 250 (1973); State v. Hughes, 20 Or.App. 493, 532 P.2d 818 (1975). The testimony at the suppression hearing can detract from the affidavit to the extent that it proves inaccuracies, but the testimony cannot add to the affidavit because information known to the affiant or his informers, but not communicated to the issuing magistrate, cannot be the basis of a probable cause determination. State v. Hughes, supra. See also ORS 133.545(3). In determining the validity of this warrant we examine the information contained within the affidavit, excising inaccurate information, to determine if there is probable

cause to search the residence where defendant was living.

THE SEARCH WARRANT

Officer Cain of the Oregon State Police, in the process of investigating a house burglary, submitted the affidavit for search warrant challenged in this case. The affidavit contained no information based on Officer Cain's personal observations but was based solely on hearsay information from three named informants, designated as private citizens, and two unnamed informants also designated as private citizens.

Hearsay information in an affidavit supporting an application for a search warrant is appropriate and can be, standing alone, sufficient to establish probable cause to allow a search. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960). The Supreme Court cautioned in Jones, however, that hearsay may serve as a predicate for a warrant only 'so long as a substantial basis for crediting the hearsay is presented.' 362 U.S. at 269, 80 S.Ct. at 735. The analytical framework for determining the 'substantial basis' was provided by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and further explicated in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). ¹

The framework of Aguilar for analyzing the trustworthiness of hearsay is contained in the following paragraph:

'Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, * * * the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, * * * was 'credible' or his information 'reliable." 378 U.S. at 114, 84 S.Ct. at 1514.

The Supreme Court in Spinelli labeled this analytical framework as the "two-pronged test' of Aguilar.' Both prongs of the test must be satisfied before the hearsay information may become an ingredient of the probable cause determination.

In assessing the hearsay information to decide if it is trustworthy the magistrate must have sufficient raw data to make an independent judgment of trustworthiness. The data must first disclose the basis of the informant's knowledge, the first prong, so the magistrate may independently determine the weight to give such information in support of a conclusion the sought for evidence exists exists and in a particular place. Secondly, the data must be sufficient to inform the magistrate of the informant's veracity, the second prong. The veracity determination can be made either from information concerning the informant's credibility or from data supporting a conclusion his information is reliable. ²

In applying these decisional guidelines to determine the validity of the issuing magistrate's action in granting a search warrant a court must apply some basic standards. An affidavit of probable cause is tested by less rigorous standards than those governing admissibility of evidence at trial. Spinelli v. United States, supra; McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). In judging probable cause the magistrate is not to be confined by niggardly limitations or by restrictions on the use of of common sense. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

We now turn to the affidavit in this case to determine if it contained sufficient data to satisfy both prongs of the Aguilar test.

The first named informant reported that his house had been burglarized on June 6, 1976, and listed numerous items taken in the burglary including stereo equipment, phonograph records, pictures and some clothing. The affidavit contained a complete list and description of the missing items.

The second named informant told the officer on June 16, 1976, ³ he had been in the burglarized residence with the defendant on June 4, two days before the burglary, and that defendant had commented the residents were doing well and that there were a great number of records for the stereo. He also told the officer the defendant was present when the victim said he would be going to Klamath Falls for the weekend.

The information from these two named informants is not challenged in this appeal and will be accepted as truthful and reliable in measuring the affidavit against the requirements of probable cause.

The third named informant was Marjorie Diaz, the mother of defendant. On June 25, 1976, she told Officer Cain her son had burglarized a residence from which he took a great amount of property including clothing and household appliances and that he had the property where he lived; the residence named in the warrant. The affidavit did not contain any information as to how she learned the facts she recited to Officer Cain. During the hearing on the motion to suppress it was established she obtained her information from the two unnamed informants.

The information from Marjorie Diaz, when evaluated under the first prong of the Aguilar-Spinelli test, i.e., the 'basis of knowledge' prong, was insufficient to be included in the issuing magistrate's probable cause analysis. There was no data in the affidavit disclosing how she obtained the information from which the magistrate could make an independent evaluation of the weight to be accorded the stated facts. This left the magistrate to speculate as to whether she learned these facts from her own observations, from talking with the defendant or from some other hearsay source. This is clearly not sufficient under the test of Aguilar and Spinelli.

The first unnamed informant, who we designate as 'informant number one' for convenience of analysis, talked to Officer Cain on June 25, 1976. ⁴ This informant told Cain she had been in the residence where defendant was living while he was there, that she observed approximately 80 record albums, (approximately 80 records were taken in the burglary), a 'long haired sheepskin, brown,' a multicolored tapestry depicting a scene of buffalo hunting. All of these items fit the description of things taken in the burglary. At the suppression hearing Officer Cain testified he showed her the list of stolen items and she picked out those she saw at defendant's residence. We do not deem this as detracting from her statement set forth in the affidavit. It was an acceptable means used by the officer to determine what she had observed in defendant's residence. She also stated to the officer, as disclosed in the affidavit, that the defendant told her 'he had ripped off a residence and has stolen enough property to furnish his house.'

The information from informant number one passes muster under the 'basis of knowledge' prong of Aguilar. The magistrate had before him the exact source of her information. She had personally observed the items in defendant's residence sometime prior to June 25, 1976. Assuming, for the moment, she is a truthful informant i.e., her veracity is sustainable under the second prong of Aguilar, the fact she personally observed the items is sufficient data from which the magistrate may make an independent judgment that her...