State v. Dunning

• Decision Date: 10 September 1986
• Parties: STATE of Oregon, Respondent, v. Charles G. DUNNING, Appellant. C85-03-30821; CA A36715.
• Court: Oregon Court of Appeals

Page 924

724 P.2d 924

81 Or.App. 296

STATE of Oregon, Respondent, v. Charles G. DUNNING, Appellant.

C85-03-30821; CA A36715.

Court of Appeals of Oregon.

Argued and Submitted April 14, 1986.

Decided Sept. 10, 1986.

Dave E. Groom, Portland, argued the cause for appellant. With him on the brief was Des Connall, P.C., Portland.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ.

YOUNG, Judge.

Defendant seeks reversal of his conviction for the unlawful delivery of a controlled substance. ORS 475.992(1). ¹ He makes three challenges to the lawfulness of the search warrant. We affirm.

Defendant first argues that the trial court erred in denying his motion to controvert. ORS 133.693. ² The affidavit in support of the search warrant recites that most of the affiant's information came from a named special agent of the U.S. Drug Enforcement Administration, who in turn received his information from a "confidential reliable informant." The affiant also received information directly from two other unnamed informants. Defendant contends that it was error to deny his motion to controvert, because the state failed to establish the truthfulness, accuracy and good faith of the affiant or the agent in that the affiant and the agent "failed to give any information which would vouch for the truthfulness of the [confidential reliable] informants and * * * refuse[d to] reveal the names or any information about those informants." That argument is without merit.

First, defendant has the burden of proving the affiant's lack of truthfulness, accuracy and good faith. See ORS 133.693(3). In addition, a motion to controvert is directed solely at the good faith, accuracy and truthfulness of the affiant and not at the underlying information supplied by the informant. See ORS 133.693(2); State v. Coatney, 44 Or.App. 13, 18, 604 P.2d 1269, rev. den. 289 Or. 107 (1980). Finally, defendant attempts, under cover of a motion to controvert, to argue that the trial court erred in refusing to require the state to reveal the informants' identities. Because that issue is not properly raised by a motion to controvert, the trial court did not err in denying the motion.

Defendant's second assignment is that it was error to deny defendant's motion to require the state to disclose the identity of the informants or, alternatively, to dismiss. He contends that the informants' names should have been revealed, because otherwise the hearing had a "Star Chamber quality" and the "entire event remains shrouded in mystery." We disagree. The state may withhold a confidential reliable informant's identity unless failure to disclose will infringe on the defendant's constitutional rights. ORS 135.855(1)(b); OEC 510; State v. Waterbury, 50 Or.App. 115, 118, 622 P.2d 330, rev. den. 290 Or. 651 (1981). When production of the informant is essential to a fair determination of a defendant's guilt, the privilege to withhold must give way. State v. Elliott, 276 Or. 99, 102, 553 P.2d 1058 (1976) (citing Roviaro v. United States, 353 U.S. 53, 60-62, 77 S.Ct. 623, 627-29, 1 L.Ed.2d 639 (1957)). If, however, the question is not guilt or innocence, but rather the question of probable cause for an arrest or search, the state need not disclose the informant's identity "unless the record reveals that there was inadequate proof of probable cause without the informant's identity." State v. Waterbury, supra, 50 Or.App. at 119, 622 P.2d 330. Defendant fails to explain, and the record does not reveal, how revelation of the informants' identities bears on the existence of probable cause. The trial court did not err.

Finally, defendant argues that it was error to deny his motion to suppress, because the affidavit is insufficient on its face to establish probable cause. Specifically, he contends (1) that the affidavit does not show the unnamed informants' veracity and basis of knowledge and (2) that the information in the affidavit was stale. We address those arguments in turn.

An affidavit which relies on an unnamed informant must meet a "two-pronged" test: (1) it must set forth the informant's basis of knowledge; and (2) it must establish the informant's veracity, by showing either (a) that the informant is credible or (b) that the information is reliable. ORS 133.545(4); ³ State v. Montigue, 288 Or. 359, 362, 605 P.2d 656 (1980); State v. Souders, 74 Or.App. 123, 128, 700 P.2d 1050 (1985). Corroboration either by police investigation or by co-informants can establish an unnamed informant's reliability. State v. Souders, supra, 74 Or.App. at 129 700 P.2d 1050. If a tip is sufficiently detailed, it can be inferred that the basis of the informant's knowledge is personal information. See Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1969); State v. Delker, 26 Or.App. 497, 502, 552 P.2d 1313, rev. den. 276 Or. 387 (1976).

Defendant does not argue that the affidavit must meet the two-pronged test with respect to the named agent. He argues only that the affidavit fails the two-pronged test with respect to the three unnamed informants. We first examine the agent's confidential informant's basis of knowledge and veracity. The affidavit provides in part:

"That the confidential reliable informant advised [the agent] that [defendant] resides at 7216 N. Amherst Street, City of Portland, County of Multnomah, State of Oregon. Further, that a subject by the name of Karen Thornton resides with [defendant] at that address. That the informant advised [the agent] that the subject Karen Thornton works for Chevron Oil Company in the computer division. That on February 19, 1985, [the agent] contacted Portland General Electric and was advised that utilities at 7216 N. Amherst Street were subscribed in the name of Karen F. Thornton. PGE information indicates that Karen Thornton is employed by Chevron USA and lists a home phone number of 286-8506. A subsequent query of Pacific Northwest Bell telephone records indicates that the phone number 286-8506 is in fact subscribed to the name of K.F. Thornton at 7216 N. Amherst Street, Portland, Oregon. * * *

"That this confidential reliable informant told [the agent] that [defendant's] and Ron Hodges' business, C.R.A. Construction Company, is located on N. Lombard Street, and that [defendant] co-mingles funds derived from the sale of cocaine with monies used to operate the C.R.A. Construction Company. Further, that [defendant] invests portions of those monies derived from cocaine trafficking in Chevron USA stocks and real estate purchases, with a real estate company located next to his business. That on 2/19/85, I went to 8040 N. Lombard Street, City of Portland, County of Multnomah, State of Oregon, and at that location found the Penninsula Real Estate office which I believe to be a Century 21 Real Estate office by the signs present on the outside of the building. That I observed no signs that would indicate that this office contains a construction business, but entered that office during business hours in an undercover capacity. Once in what appeared to be a real estate office, I spoke with an employee and asked where C.R.A. Construction Company was located. The employee pointed out a partitioned cubicle in the northeast corner of the business office and stated that that was C.R.A. Construction Company, but that no one was there at the time. I could see a desk and what appeared to be a small office present within this cubicle. * * *

"That furthermore, the confidential reliable informant advised [the agent] on February 19, 1985, that [defendant] uses a pager to facilitate drug transactions and provided the number of (503) 250-7146. That on this same date [the agent] verified through Pacific Northwest Bell that the above listed pager telephone number is subscribed to Portland Paging Company in Portland, Oregon.

"That this confidential reliable informant advised [the agent] that [defendant] has two daughters who distribute cocaine for him. That the Portland Police Computer System shows a previous address of 8124 N. Hartman listed for [defendant]. That a check with the Portland Police Computer System shows as of 3/18/84, the occupant of 8124 N. Hartman was a Sandra Jean Dunning with a date of birth of 5/4/40, the same year that [defendant] was born. That further checks indicate two other subjects reside at the address of 8124 N. Hartman, one Debra Jean Dunning, with a date of birth 10/18/59, and one Theresa A. Dunning, with a date of birth of 6/14/65. * * * "That this confidential reliable informant advised [the agent] that [defendant], in addition to the 'laundering' of funds in real estate, stocks, and the construction company, wraps money in freezer bags and places the monies in a freezer located in the garage of the residence at 7216 N. Amherst Street in Portland, Oregon;

"Further, that this confidential reliable informant advised [the agent] that in addition to the monies which are secreted in the freezer in the garage, [defendant] maintains scales, packing paraphernalia, and other items associated with the use and distribution of controlled substances in his house. * * *

"That on February 19, 1985, [the agent] told me he was contacted by the above described citizen informant and advised that in the preceding 75 hours from the time this affidavit is sworn that that informant had been within the residence situated at 7216 N. Amherst Street, City of Portland, County of Multnomah, State of Oregon; Further, that while in said residence, [the agent] told me the informant did observe [defendant] in possession of a quantity of cocaine in excess of one ounce and that when this informant left the residence [defendant] was still in possession of that amount of cocaine. That this informant told [the agent] that the informant has observed [defend...