State v. Mellinger

• Citation: 627 P.2d 897,52 Or.App. 21
• Decision Date: 04 May 1981
• Docket Number: No. 25726,25726
• Parties: STATE of Oregon, Respondent, v. Keith Wayne MELLINGER, Appellant. ; CA 17214.
• Court: Court of Appeals of Oregon

Page 897

627 P.2d 897

52 Or.App. 21

STATE of Oregon, Respondent, v. Keith Wayne MELLINGER, Appellant.

No. 25726; CA 17214.

Court of Appeals of Oregon.

Argued and Submitted Dec. 9, 1980.

Decided May 4, 1981.

Michael V. Johnson, La Grande, argued the cause and filed the brief for appellant.

Robert C. Cannon, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

Before RICHARDSON, P. J., and THORNTON and BUTTLER, JJ.

RICHARDSON, Presiding Judge.

Defendant appeals his conviction after jury trial for possession of more than one ounce of marijuana. ORS 475.992(4)(a). Defendant was indicted for Count One: possession of more than one ounce of marijuana and Count Two: possession of amphetamines. He was convicted of Count One and acquitted of Count Two. He assigns as error: (1) the denial of his motion to suppress evidence seized pursuant to a search warrant; (2) the exclusion of certain impeachment evidence; (3) overruling of his demurrer to Count One of the indictment; and (4) the denial of his motion for a judgment of acquittal on both counts. ¹ We affirm.

On July 3, 1979, defendant's residence was searched pursuant to a warrant. A quantity of marijuana, growing marijuana plants and drug paraphernalia were discovered along with a single amphetamine tablet.

Defendant first assigns as error ² the denial of his motion to suppress. Defendant contends the search warrant affidavit set out in the margin ³ is legally insufficient to support probable cause. Specifically, he argues that the affidavit must provide the issuing magistrate with (1) some indication of the underlying circumstances from which the informant concluded drugs were present; (2) some of the underlying circumstances to show either that the information is credible or that the informant is reliable; and (3) some indication as to the "means" by which the information was obtained. Defendant contends that the first two requirements are necessary to satisfy relevant constitutional considerations and that the third is necessary to satisfy ORS 133.545(3). ⁴

In State v. Diaz, 29 Or.App. 523, 564 P.2d 1066 (1977), we discussed the proper analytical framework for determining if a search warrant affidavit based on hearsay establishes probable cause to issue a search warrant:

"In assessing the hearsay information to decide if it is trustworthy the magistrate must have sufficient raw data to make an independent judgment of trustworthiness. The data must first disclose the basis of the informant's knowledge, the first prong, so the magistrate may independently determine the weight to give such information in support of a conclusion the sought for evidence exists and in a particular place. Secondly, the data must be sufficient to inform the magistrate of the informant's veracity, the second prong. The veracity determination can be made either from information concerning the informant's credibility or from data supporting a conclusion his information is reliable." (Footnote omitted.) 29 Or.App. at 527, 564 P.2d 1066.

See also Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); State v. Carlile, 290 Or. 161, 619 P.2d 1280 (1980); State v. Montigue, 288 Or. 359, 605 P.2d 656, cert. den. --- U.S. ----, 101 S.Ct. 131, 66 L.Ed.2d 56 (1980); State v. Henderson, 40 Or.App. 27, 594 P.2d 419 (1979).

Defendant contends that in order to meet the "first prong," the affidavit must both specify where the marijuana was located in defendant's residence and include some independent verification of the information by the affiant. Whether a particular affidavit supports the magistrate's determination does not depend upon the existence of specific facts or information. Each affidavit must be examined in a common sense, nontechnical manner, looking at the facts recited and the reasonable inferences that can be drawn from those facts. State v. Harp, 48 Or.App. 185, 616 P.2d 564, rev. den. 290 Or. 171 (1980); State v. Age, 38 Or.App. 501, 590 P.2d 759 (1979). In this case, the affidavit indicates that the informant personally viewed marijuana in defendant's possession at defendant's residence during the preceding twenty-four hour period. In addition, the affiant stated that he was led to believe by his conversation with the informant that more marijuana was present. The basis of the informant's information was his own observations. He personally saw the marijuana in defendant's possession in defendant's residence. The affidavit contained sufficient information to establish the basis of the informant's knowledge and belief that marijuana was present in defendant's residence. See State v. Henderson, supra.

Defendant next contends that the "second prong" has also not been met here. Again, defendant submits that particular facts and information must exist to establish the veracity of the hearsay informant. In particular, he argues that because the informant's prior information was not stated by the affiant to have resulted in convictions and because there is no information indicating the basis for the informant's ability to identify marijuana and to determine its weight, the informant's veracity has not been established.

Again, we reject the notion that each affidavit must contain particular information regarding the informant's veracity. In the present case, the affiant stated that the informant had previously provided reliable information leading to arrests, including crimes involving controlled substances. The reliability of the informant may be established by recital of facts that show he has previously proven reliable. State v. Nehl, 19 Or.App. 586, 528 P.2d 553 (1974) rev. den. (1975); State v. Thacker, 9 Or.App. 250, 253, 496 P.2d 729 (1972). The reliability of past information does not solely depend on whether the affidavit recites that the previously supplied information resulted in convictions. In addition, the fact that the informant had previously provided information about controlled substances establishes the informant's ability to identify such substances. The affidavit contained sufficient information for the magistrate to conclude that the informant was reliable and that his information was credible.

Defendant next argues that the trial court erred in believing the information contained in the affidavit rather than the testimony of defendant and his witnesses. Defendant filed a motion to controvert the affidavit ⁵ along with his motion to suppress. In an affidavit attached to his motion to controvert, as well as at the hearing, defendant's evidence was to the effect that (1) the informant never existed; (2) no such person ever saw a pound or any substantial amount of marijuana on defendant's premises; (3) the informant was never on or around defendant's premises; and (4) the arrests referred to in the affidavit never happened.

The trial court, after considering the evidence presented, denied defendant's motion. Though the evidence presented by defendant and his witnesses conflicted with the affiant's statements, the court was not required to believe that evidence. State v. Nearing/Baker, 16 Or.App. 30, 517 P.2d 308 (1973). In denying the motion, the court made a factual determination. We conclude that the trial court did not err in denying defendant's motion to controvert. The affidavit established probable cause to support issuance of the warrant to search defendant's premises.

Defendant next assigns as error the trial court's exclusion of impeachment evidence. ⁶ Defendant contended at trial that the quantity of marijuana with which he was charged was not the quantity of marijuana recovered at his residence. Defendant wanted to introduce evidence of previous police contacts between himself and Officer O'Rourke, one of the officers involved in the search, which had occurred during the previous five or six years, to establish Officer O'Rourke's ill feelings toward him and to raise the apparent inference that the officer "planted" additional marijuana in the amount taken from his residence. The trial court allowed defendant to show the existence of pending civil litigation between himself and the officer, but refused to allow him to examine the officer or present other evidence about previous police contacts between himself and the officer.

Evidence which might otherwise be irrelevant may be admissible to show interest or bias of a witness, even though the evidence offered has only a mere tendency to prove bias or interest. State v. Dowell, 274 Or. 547, 547 P.2d 619 (1976); Shrock v. Goodell, 270 Or. 504, 528 P.2d 1048 (1974); O'Harra v. Pundt, 210 Or. 533, 310 P.2d 1110 (1957). However, the trial court has discretion to exclude evidence which has little or no probative value, Shrock v. Goodell, supra, and whose presentation would unduly delay the trial or tend to distract or confuse the jury. State v. Grabill, 34 Or.App. 639, 579 P.2d 316, rev. den. 284 Or. 521 (1978).

In State v. Grabill, supra, we addressed a similar problem. There, defendant sought the introduction of impeachment evidence which he argued tended to establish a police officer's motive in wanting to "make a case" against defendant. We noted that the relevance of the evidence on such a theory was highly attenuated and stated that "(t)he trial court properly exercised its discretion in ruling that the probative value, if any, of the evidence was outweighed by its tendency to unduly prolong the trial and to distract the jury from the primary issues." 34 Or.App. at 645, 579 P.2d 316.

The relevance of the evidence offered here was, at best, tenuous. The trial court allowed defendant to reveal the existence of the litigation between defendant and the officer. The quantity of marijuana seized from defendant was corroborated by other officers involved in the...