State v. Matsen
| Decision Date | 15 January 1979 |
| Docket Number | Nos. 77-09-13613,s. 77-09-13613 |
| Citation | 38 Or.App. 7,588 P.2d 1284 |
| Parties | STATE of Oregon, Respondent, v. Mark Allen MATSEN, Appellant. STATE of Oregon, Respondent, v. Tyrrell Lee WILSON, Appellant. ; CA 10520, 77-09-13612; CA 10429. |
| Court | Oregon Court of Appeals |
S. Randall Johnson, Certified Law Student, Salem, argued the cause for appellant. With him on the brief were Gary D. Babcock, Public Defender, and James E. Mountain, Jr., Deputy 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 Walter L. Barrie, Sol. Gen., Salem.
Before SCHWAB, C. J., and THORNTON and TANZER, JJ.
Defendants in this consolidated appeal seek reversal of their convictions for criminal activity in drugs and assign as error the denial of their joint motions to suppress evidence gained in the search of their residence.
After numerous contacts with informants and nearly two weeks of surveillance, the police entered defendants' house, frisked the occupants, detained them while a search warrant was obtained, and then searched the house and found the drugs.
Defendants argue that the police should have obtained a search warrant prior to entering the residence. We consider whether the warrantless entry was based on probable cause and exigent circumstances. Because we hold that it was, we need not consider the defendants' contention that the action of the police in securing a warrant after they had "frozen" the situation does not validate the earlier entry.
Defendants challenge the reliance upon observations of defendants' house and activities made by the police from the grounds surrounding defendants' house as a basis for probable cause. In State v. Albertson, 1 Or.App. 486, 462 P.2d 458 (1970), we held that where a search is based in part upon unlawfully obtained information, the search nevertheless will be upheld if the remaining unchallenged information is sufficient to constitute probable cause. Here, as we discuss below, the unchallenged information is abundantly sufficient. Consequently, we do not consider the lawfulness of the challenged observations.
Probable cause may be established through verified information provided by reliable informants. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). In this case the police made about 30 contacts with three informants over a 13-day period. The informants suspected a large-scale drug operation to be going on in defendants' house. They provided the police with a physical description of the house, the identity of the occupants and samples of marijuana supplied to them by the occupants. They informed the police that the occupants had been in the house of one of the informants with marijuana and that the occupants had transported marijuana from their house in their own cars. Fifty pounds of marijuana was seen at one time in the defendants' house as well as cocaine, amphetamine, heroin and LSD in various amounts. The informants also described one Max or Pete (later identified as co-defendant Tolomei) as the apparent drug supplier, implying that evidence of crime was more likely to be present during his presence than otherwise.
The reliability of the informants may be established, among other ways, through independent investigations by the police, State v. Hayward and Hayward, 18 Or.App. 128, 523 P.2d 1278 (1974), by past undercover work, State v. Fugate, Peterlla, 24 Or.App. 419, 545 P.2d 922 Rev. den. (1976), and by the informant tendering contraband to police, State v. Hayward and Hayward; State v. Evans, 1 Or.App. 489, 463 P.2d 378 Rev. den. (1970). All of these indicia of reliability occurred in the present case.
Probable cause may also, of course, be established by the firsthand observations of police. In this case a police officer concealed in the house of an informant neighbor observed Tolomei and defendant Matsen standing in defendant Matsen's driveway and...
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State v. Rein
... ... The Supreme Court held in State v. Matsen/Wilson, 287 Or. 581, 587, 601 P.2d 784 (1979), that "[t]he fact that drugs are usually of a destructible nature * * * does not ipso facto create exigent circumstances." In that case, police officers received information that substantial drug traffic was occurring at a particular house. They ... ...
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State v. Eacret, 77-3025-C-3
...evidence of crime and that exigent circumstances outweighed the need for judicial predetermination of probable cause. State v. Matsen, 38 Or.App. 7, 9-10, 588 P.2d 1284 Rev. allowed (1979); State v. Basler, 24 Or.App. 723, 727, 546 P.2d 1084 Rev. den. (1976). Here, the officers had probable......
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State v. Montigue
...26 Or.App. 185, 189, 552 P.2d 554, 556 rev. den. (1976); State v. Hughes, 20 Or.App. 493, 532 P.2d 818 (1975); see also State v. Matsen, 38 Or.App. 7, 588 [38 Or.App. 367] P.2d 1284 (1979); State v. Diaz, 29 Or.App. 523, 564 P.2d 1066 (1977). Excising the inconsistency regarding cocaine, th......