State v. McManus

• Decision Date: 13 December 1973
• Citation: 517 P.2d 250,267 Or. 238,98 Adv.Sh. 143
• Parties: STATE of Oregon, Respondent, v. Steve McMANUS, Petitioner.
• Court: Oregon Supreme Court

Page 250

517 P.2d 250

267 Or. 238

STATE of Oregon, Respondent, v. Steve McMANUS, Petitioner.

Supreme Court of Oregon.

Argued and Submitted June 1, 1973.

Decided Dec. 13, 1973.

Keith Burns, Portland, argued the cause for petitioner. With him on the briefs was Jane Edwards, Portland.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

Before O'CONNELL, C.J., and DENECKE, HOLMAN, TONGUE, HOWELL and BRYSON, JJ.

BRYSON, Justice.

The defendant was indicted for Criminal Activity in Drugs (ORS 167.207). The defendant filed a motion to quash the search warrant and to suppress the evidence (marijuana) seized. It was stipulated that the court would hear the case without a jury and try 'the issues in the indictment and the issues raised by the motion to quash and suppress at the same time.'

The trial court denied defendant's 'Motion to Quash and to Suppress Evidence' and found the defendant guilty as charged in the indictment.

Defendant appealed and the Court of Appeals affirmed by a divided court. State v. McManus, Or.App., 96 Adv.Sh. 385, 504 P.2d 1046 (1973). We allowed the petition for review.

The defendant contends that the affidavit on which the warrant was issued was insufficient to show probable cause ¹ and that the officer who executed the affidavit controverted the statements in the affidavit in his testimony on the motion to suppress.

Defendant's first assignment of error before the Court of Appeals was:

'The court erred in denying defendant's motion to suppress, which read as follows:

'Defendant * * * moves the Court for an Order quashing the affidavit for a search warrant of Lucia B. Wilson, * * * a copy of which affidavit is attached * * *; quashing the search warrant issued by said Justice of the Peace * * * based on said affidavit; and suppressing as evidence any items seized * * *; and for an Order setting a time and a place for a hearing on this Motion.

'Defendant's grounds for this Motion are that his Federal and State constitutional right(s) to be secure in his automobile against unreasonable search and seizure have been violated, and the provisions of ORS 141.030 have not been met, and the Affidavit is not sufficient in the following particulars, to-wit:

'* * *.

'2. The Affidavit does not show that any criminal activity was present on either the defendant's person, automobile or residence.

'3. Said Affidavit is not based on probable cause but mere suspicion.'

The defendant argued in the Court of Appeals and before this court:

(1) 'Defendant submits the officer in the instant case did not have probable cause for a search; the search was based on mere suspicion.

'In Officer Wilson's affidavit, he stated defendant is 'known to me as a trafficker in narcotics and dangerous drugs.' However, at trial, (and on the motion) he indicated he did not know this of his personal knowledge, but it was hearsay.

'* * * (T)here was nothing to show how the person or persons who informed Officer Wilson (that) defendant was a trafficker in dangerous drugs reached their conclusions and there was no evidence to show these persons were reliable or truthful.'

(2) 'The only part of Officer Wilson's affidavit that it relevant in determining whether there was probable cause for a search are his statements that he saw defendant hand Graven what appeared to be a baggie of marijuana and receive something that looked like money in return. However, he admitted on cross-examination the object he saw could have been an ordinary plastic container and he could not see what it contained, and he was not sure what defendant received from Graven.

'* * * It is unreasonable to assume that simply because two people are exchanging objects, these objects are contraband. * * * These circumstances are hardly suspicious, let alone sufficient to constitute (probable) cause for invading one's privacy.'

The threshold question is whether the defendant can contest the accuracy of or the negligent mistakes in an affidavit in support of a search warrant by a motion to quash and suppress or does a motion to controvert, as provided in ORS 141.150 and 141.160, provide the exclusive procedure for doing so.

Certain facts from the record are necessary to explain the posture of the case. State Police Officer Wilson was standing in the Harney County Courthouse. He looked out the window and observed the incident involving defendant as described in his affidavit in support of the search warrant. Wilson's affidavit for the search warrant stated three basic facts: (1) 'that Steve McManus is known to me as a trafficker in narcotics and dangerous drugs'; (2) 'that I have this date * * * observed Steve McManus to hand to Randall Mark Graven what appeared to be a baggie of marijuana'; and (3) that the affiant observed defendant 'receive money in return.'

At the trial, which was stipulated to also be the evidence on the motion to suppress, Officer Wilson testified:

'A. At that time, I observed two vehicles pull up--one belonging to Mr. McManus and the other belonging to Mr. Graven--on the street out there, pull up side by side and observed Mr. McManus hand something plastic like a plastic baggie, or something, over to Mr. Graven. And then I saw him return something that was green, it looked to me like money.

'* * *.

'Q. What, if anything, did you know about him (defendant)?

'* * *.

'THE COURT: Yes, for the affidavit.

'* * *.

'A. Well, we have had information and stuff that he uses and sells, uh, marijuana and other items.

'Q. Did you have this knowledge at the time you were looking out this window?

'A. Yes, sir.'

On cross-examination he testified:

'Q. Now, Officer Wilson, you stated that you were in the District Attorney's office at the time you observed Mr. McManus and Mr. Graven?

'A. Yes, sir.

'Q. And you saw something passed, uh, between them.

'A. Yes, sir.

'Q. And it appeared to be a baggie.

'A. Yes, sir.

'Q. Could it have been, uh, uh, any--an ordinary plastic container?

'A. Yes, sir.

'Q. And you couldn't see the contents of this I take it.

'A. No, sir.

'Q. And, uh, could you be certain that what you saw come back from Mr. Graven was money?

'A. No, sir, I could not.

'Q. (Pause) So then, you're not certain what was passed.

'A. No, sir.'

It should be noted that the above testimony was solely for the purpose of testing the accuracy of the affidavit. The court acknowledged this, and both parties acceded to this procedure. The search warrant had been issued, the marijuana seeds were seized from defendant's car, and the state introduced them in evidence. This evidence proved the state's case on the question of guilt. No objection was taken by the state as to this procedure for controverting Officer Wilson's affidavit.

In People v. Butler, 64 Cal.2d 842, 52 Cal.Rptr. 4, 415 P.2d 819 (1966), the court was faced with the same problem when a motion to suppress was filed to test the accuracy of an affidavit on which a search warrant was issued rather than filing a motion to controvert. California Penal Code sections 1539--1540 were almost identical to ORS sections 141.150--141.160. ² The court concluded that a defendant may 'attack the validity of a warrant at the preliminary hearing and at the trial whether or not he attacked it under sections 1539 and 1540.'

'* * * (T)he Legislature's purpose in enacting those sections (1539, 1540) was not to regulate the procedure for objecting to the introduction of evidence in criminal trials but to afford the person from whom property was wrongfully seized an expeditious remedy for its recovery. (See Aday v. Superior Court (1961) 55 Cal.2d 789, 800, 13 Cal.Rptr. 415, 362 P.2d 47.)' 52 Cal.Rptr. at 6, 415 P.2d at 821.

The California court reasoned that the remedy provided by sections 1539 and 1540 'would serve the deterrent purpose of the exclusionary rule fitfully at best. It would not preclude an officer from testifying to what he saw in the course of a search under an invalid warrant or from using information obtained in such a search to secure other evidence. * * * It would afford no relief to a defendant from whom the property was not taken. * * * It would afford no relief when the property is contraband, which cannot be returned (as in the case at bar). * * * Since the state must afford to 'every defendant a full and fair opportunity to secure an adjudication of all claimed deprivations of his constitutional rights in the securing of the evidence offered against him at the trial' (In re Sterling (1965) 63 Cal.2d 486, 488, 47 Cal.Rptr. 205, 207, 407 P.2d 5, 7; see Townsend v. Sain, 372 U.S. 293, 312--318, 83 S.Ct. 745, 9 L.Ed.2d 770), a requirement that he must exhaust the remedy under sections 1539--1540 would entail either a broadening of the remedy beyond the statutory terms or the adoption of exceptions when the statutory remedy was inadequate.'

The procedure in Butler was affirmed in the recent case of Theodor v. Superior Court, 8 Cal.3d 77, 104 Cal.Rptr. 226, 501 P.2d 234 (1972). In Theodor the defendant contended that he could, by a motion to suppress, attack the accuracy of the affidavit in an effort to prove there was no probable cause for the issuance of the warrant. The court stated:

'The standard of probable cause is most often relevant in the determination of whether the inferences drawn by a magistrate or officer from the facts presented (see Aguilar v. Texas, supra (378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)); Spinelli v. United States (1969) 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637) are reasonable. (Dumbra v. United States, supra, 268 U.S. 435, 441, 45 S.Ct. 546, 69 L.Ed. 1032.) However, if a magistrate is presented with false or inaccurate information in an application for a warrant, the inferences he draws from such information are not based on reality but on the fantasies of the misinformed or misinforming affiant. Regardless of whether misstatements are...