State v. Fugate
| Decision Date | 17 February 1976 |
| Citation | 545 P.2d 922,24 Or.App. 419 |
| Parties | STATE of Oregon, Respondent, v. Douglas Leo FUGATE, Appellant. STATE of Oregon, Respondent, v. Danny Ray PETERLLA, Appellant. |
| Court | Oregon Court of Appeals |
Stephen A. Moen, Portland, argued the cause and filed the brief for appellants.
James A. Hill, Jr., Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.
Defendants were arrested at the same time in the same premises and each charged in separate indictments with four counts of criminal activity in drugs. Together, they moved to suppress drugs seized pursuant to a search warrant at their time of arrest on the ground that the affidavit forming the basis for the warrant was insufficient. The motions were denied; thereafter, they each stipulated to the facts of one count each of the respectively applicable indictments, were found guilty and sentenced. These appeals, heard together, challenge the ruling on the motions to suppress.
The challenged affidavit is questioned only in regard to the sufficiency of the following paragraphs:
'* * *
'That I believe this informant to be familiar with cocaine and the packaging of cocaine because this informant has in the past purchased and used cocaine;
'That this informant informed me that within the past 48 hours this informant has been in the premises of John Doe 'Dan' and John Doe 'Doug', located at 5353 S.E. 28th Avenue, apartment #26, and while in these premises this informant purchased from the subject known to my informant only as John Doe 'Doug' a quantity of suspected cocaine;
'Further, that my informant informed me that in the past my informant has been in the premises located at 5353 S.E. 28th Avenue, apartment #26, and has purchased from the subject known to my informant only as John Doe 'Dan' a quantity of suspected cocaine;
'* * *.'
In State v. Willis, Or.App., 545 P.2d 1392 (1976), decided this day in a split decision, we held that an affidavit for search warrant which related only one drug sale 'within the past 48 hours,' on certain premises occupied by defendant, and no corroborating circumstances, was sufficient to form the basis of a well-warranted suspicion that more contraband was presently on the same premises. The challenged affidavit at bar contained a similar allegation,...
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State v. Gribskov, 18-877
...persons involved, the allegation supports the inference that drugs are continually present at this residence, see State v. Fugate, Peterlla, 24 Or.App. 419, 422, 545 P.2d 922, rev. den. Giving a common sense reading to this supporting affidavit, United States v. Ventresca, 380 U.S. 102, 108......
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