State v. Evans

• Decision Date: 17 March 1970
• Citation: 1 Or.App. 489,463 P.2d 378,90 Adv.Sh. 43
• Parties: STATE of Oregon, Respondent, v. Fred Victor EVANS, Appellant.
• Court: Oregon Court of Appeals

Page 378

463 P.2d 378

1 Or.App. 489

STATE of Oregon, Respondent, v. Fred Victor EVANS, Appellant.

Court of Appeals of Oregon, In Banc.

Argued and Submitted Nov. 24, 1969.

Decided Jan. 8, 1970.

Rehearing Denied Feb. 26, 1970.

Review Denied March 17, 1970.

Howard R. Lonergan, Portland, argued the cause and filed the briefs for appellant.

Thomas H. Denney, Asst. Attorney General, Salem, argued the cause for respondent. With him on the brief was Roger Rook, Dist. Atty., Oregon City.

FORT, Judge.

The defendant was convicted of the crime of illegal possession of marihuana. ORS 474.020. In appealing he sets forth three assignments of error. We consider them seriatim following a brief summary of the facts.

The police received information from an informer indicating that marihuana was present at the defendant's premises. Accordingly a search warrant was sought based upon an affidavit by a police officer which states in its pertinent portions:

'I have been informed by an informant whose information has proved reliable in the past that the informant purchased a quantity of a substance purporting to be marijuana from one Victor Evans at 577-4th Street, Lake Oswego, Clackamas County, State of Oregon, where the said Victor Evans resides. At the time he made this purchase and within the past week the informant observed a large quantity of the same substance in the house and garage at the above address. The informant has delivered the substance purchased from Mr. Evans to me.'

It then recites the officer's special training in the identification of marihuana and flatly asserts the substance given him by the informant is marihuana.

Based on the affidavit a search warrant was issued. At the time of the search defendant was not at home. His wife and small child were.

The search revealed substantial quantities of marihuana. Mrs. Evans thereupon was arrested for illegal possession of narcotics. While the officers were at the home, the defendant telephoned his wife. At his request she called one of the officers to the phone. The defendant identified himself to the officer. Following the call, one of the officers left, picked up the defendant and returned to the residence with him.

Subsequently defendant and his wife were taken to the police station. While there, defendant, in the presence of his wife and after receiving full warning of his rights, voluntarily made an oral statement to the police. This was promptly reduced to writing but defendant, though not denying its accuracy, declined to sign it.

In due course defendant filed a motion to suppress the seized marihuana. At the hearing he sought to elicit the name of the 'reliable informant' described in the affidavit. The state objected and the court sustained it. This ruling is challenged by the first assignment of error.

It is well established that the state has a privilege to withhold the identity of a person who furnishes information concerning law violations to appropriate law enforcement officers. This is commonly known as the 'informer's privilege.' Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). In that case the court said:

'* * * The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.' 353 U.S. at 59, 77 S.Ct. at 627.

The privilege, however, is not absolute. For example,

'* * * Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful * * * to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. * * *' 353 U.S. at 60--61, 77 S.Ct. at 628.

More recently, McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), reviewed Roviaro at length and stated:

'What Roviaro thus makes clear is that this Court was unwilling to impose any absolute rule requiring disclosure of an informer's identity even in formulating evidentiary rules for federal criminal trials. Much less has the Court ever approached the formulation of a federal evidentiary rule of compulsory disclosure where the issue is the preliminary one of probable cause, and guilt or innocence is not at stake. Indeed, we have repeatedly made clear that federal officers need Not disclose an informer's identity in applying for an arrest or search warrant. As was said in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684, we have 'recognized that 'an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant,' so long as the magistrate is 'informed of some of the underlying circumstances' supporting the affiant's conclusions and his belief that any informant involved Whose identity need not be disclosed * * * was 'credible' or his information 'reliable." * * *" 386 U.S. at 311, 87 S.Ct. at 1062.

We note that here the question arises in connection with the issue of probable cause. Our Supreme Court recently stated in State v. Cortman, 87 Or.Adv.Sh. 319, 446 P.2d 681 (1968), cert. den. 394 U.S. 951, 89 S.Ct. 1294, 22 L.Ed.2d 487 (1969):

'* * * (W)here the identity of...