State v. Montigue

• Citation: 288 Or. 359,605 P.2d 656
• Parties: STATE of Oregon, Respondent, v. Terry Edward MONTIGUE, Petitioner. TC 78 0544; CA 11143; SC 26112.
• Decision Date: 22 January 1980
• Court: Supreme Court of Oregon

Page 656

605 P.2d 656

288 Or. 359

STATE of Oregon, Respondent, v. Terry Edward MONTIGUE, Petitioner.

TC 78 0544; CA 11143; SC 26112.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 5, 1979.

Decided Jan. 22, 1980.

Thomas J. Crabtree, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, 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.

TONGUE, Justice.

Defendant was convicted of illegal possession of dangerous drugs, ORS 167.207. On appeal to the Court of Appeals he assigned as error the denial of his motion to suppress evidence seized in a search of his apartment pursuant to a search warrant, based upon the affidavit of a police officer which stated that one Marshall Edward Morton had "contacted" the officer and informed him that while he (Morton) was in defendant's apartment he saw a large quantity of what he was able to identify as marijuana, as well as a large quantity of a white powdery substance which defendant represented to be cocaine and offered to sell to Morton.

Defendant contended that "the affidavit (in support of the application for search warrant) was insufficient to support a finding of probable cause by the magistrate," in that neither the credibility of the informant nor the reliability of his information was established in the affidavit, as required by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

The Court of Appeals rejected that contention, 38 Or.App. 363, 590 P.2d 274 (1979), holding that an informant's reliability is sufficiently established for the purposes of such an affidavit when, as in this case, he is named and his information comes from personal observation, citing its previous decisions in State v. Poteet, 9 Or.App. 231, 495 P.2d 783, Rev. den., (1972); State v. Poole, 11 Or.App. 55, 500 P.2d 726, Rev. den., (1972), and State v. Bidwell, 14 Or.App. 679, 514 P.2d 559, Rev. den., (1974). We allowed defendant's petition for review in order that this court may consider the intrinsic sufficient of such an affidavit to support a search warrant. ¹

Both Aguilar v. Texas, Supra, and Spinelli v. United States, Supra, involved the sufficiency of search warrants based upon affidavits stating facts supplied by anonymous, unnamed informants. The test established by Aguilar-Spinelli to be applied in determining the sufficiency of such affidavits is the following "two pronged" test:

1. The affidavit must set forth informant's "basis of knowledge."

2. The affidavit must set forth facts showing the informant's "veracity," either by showing:

a. The informant is credible, or

b. That his information is reliable. ²

This case involves the "veracity prong."

The difference between the "credibility spur" and the "reliability spur" of the "veracity prong" has been stated as follows:

"Unless the alternative phraseology of Aguilar Is meaningless, the informant's 'credibility' would seem to involve his inherent and ongoing character as a person his reputation and demonstrated history of honesty and integrity. Informational 'reliability,' as something separate from its source's credibility, would seem to involve some circumstances assuring trustworthiness on the particular occasion of the information's being furnished. * * *" Moylan, 25 Mercer L.Rev. at 757-58. ³

A distinction is recognized, however, in the application of these requirements to cases in which search warrants are based upon affidavits setting forth facts supplied by named "citizen-informers," as distinguished from paid or protected, anonymous and unnamed police informants.

Thus, the "citizen-informer" is distinguished from the ordinary "police informer" in 1 LaFave, Search & Seizure, § 3.3, p. 499 (1978), as follows:

"Everyone who gives information to the police might be called an 'informant' in the broad sense of that word. 'But the person most of us have in mind when we discuss this subject is in a somewhat more restricted category. He is likely to be a person in the underworld or a person on its periphery; in its confidence, or so much 'a part of the scenery' to the criminal that this person is in a particularly good position to know the story of a crime committed, the story of criminal business done, being transacted or proposed for the future; or at least he gets significant bits of information which, when placed in context by the investigator, will demonstrate an accurate picture of crime.' It is this type of person to which the word 'informant' is intended to apply herein.

"This narrower interpretation of the word is necessary in this context, for the courts have quite properly drawn a distinction between such a person and the average citizen who by happenstance finds himself in the position of a victim of or a witness to criminal conduct and thereafter relates to the police what he knows as a matter of civic duty."

To the same effect, as stated in Harney & Cross, The Informer in Law Enforcement 40 (2d ed. 1968):

"On the probable cause issue, courts quite properly have drawn a distinction between such a person and the average citizen who by happenstance finds himself in the position of a victim of or a witness to criminal conduct and thereafter relates information to the police as a matter of civic duty. One who qualifies as the latter type of individual, sometimes referred to as a 'citizen-informer,' is more deserving of a presumption of reliability than the informant from the criminal milieu."

As Justice Harlan noted (in his dissenting opinion) in United States v. Harris, 403 U.S. 573, 599, 91 S.Ct. 2075, 2089, 29 L.Ed.2d 723 (1971),

"(T)he ordinary citizen who has never before reported a crime to the police may, in fact, be more reliable than one who supplies information on a regular basis. 'The latter is likely to be someone who is himself involved in criminal activity or is, at least, someone who enjoys the confidence of criminals.' "

As stated in Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L. Rev. 741, 769-72 (1974):

"The typical paid or protected police informant drawn from the criminal milieu is almost universally viewed with a jaundiced eye. He is inherently suspect. He hides behind a cloak of anonymity. His information just as the testimony of an accomplice is looked upon with a healthy skepticism and is examined with great scrutiny. The citizen-informer with no ax to grind and motivated by civic duty is in stark contrast * * *."

"* * *"

" 'Veracity,' rather, in one or the other of its disjunctive manifestations (i. e., credibility or reliability), flows from the very status of the citizen-informer."

In accord with these distinctions, probably most courts which have considered this problem have held that an affidavit naming a "citizen informant" as the source of the information set forth in the affidavit sufficiently satisfies the "veracity" requirement of Aguilar-Spinelli, without setting forth further facts showing that such an informant was "credible" or that his information was "reliable." See, E. g., opinion by Friendly, J., in United States v. Burke, 517 F.2d 377 (2d Cir. 1975); Cundiff v. United States, 501 F.2d 188 (8th Cir. 1974); United States v. Bell, 457 F.2d 1231 (5th Cir. 1972); Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.1976); State v. Drake, 224 N.W.2d 476 (Iowa 1974); State v. Lindquist, 295 Minn. 398, 205 N.W.2d 333 (1973); State v. Paszek, 50 Wis.2d 619, 184 N.W.2d 836 (1971); People v. Glaubman, 175 Colo. 41, 485 P.2d 711 (1971); State v. Northness, 20 Wash.App. 551, 582 P.2d 546 (1978).

Some other courts have held that identification of a citizen informant does not of itself satisfy the requirement of "veracity," and that the affidavit must also affirmatively set forth the circumstances from which the status of the named informant as a "citizen informant" can be inferred by the magistrate in issuing the search warrant. See People v. Smith, 17 Cal.3d 845, 132 Cal.Rptr. 397, 553 P.2d 557 (1976). See also Commonwealth v. Stokes, 480 Pa. 38, 389 A.2d 74 (1978).

Still other courts have held that when it affirmatively appears that the person named in the affidavit was not a disinterested "citizen informant," but was a possible accomplice or participant in the crime, such a person was not entitled to a presumption of reliability. See United States v. Pincus, 450 F.Supp. 66 (W.D.Pa.1978); Wilson v. State, 314 A.2d 905 (Del.1973). See also People v. Trontell, 188 Colo. 253, 533 P.2d 1124 (1975).

Also, according to LaFave, Supra, at § 3.4, p. 599:

"It does not follow from what has been said above that if the name of the person providing the information Is Disclosed, then he is by virtue of that fact alone properly characterized as a citizen-informer entitled to the presumption of reliability. 'That a person is named is not alone sufficient grounds on which to credit an informer, but it is One factor which may be weighed in determining the sufficiency of an affidavit.' " (Emphasis added)

In this case, however, there is another "factor" in addition to the naming of the informant in the affidavit in this case which entitled this named informant to the presumption of veracity. Also, this is not a case in which it appears on the face of the affidavit that the named informant was himself a participant or accomplice in the criminal acts or in which other facts appeared on the face of the affidavit reflecting adversely upon the reliability of the named informant.

The affidavit of the police officer in this case stated as follows:

"That on January 17, 1978 at approximately 9:00 p. m., I was contacted by Marshall Edward Morton, 1037 W. 4th Ave., Apt. # 29, Eugene, Lane County, Oregon during the course of a burglary investigation. That ...