State v. Montigue
| Decision Date | 06 February 1979 |
| Docket Number | No. 78,78 |
| Citation | 38 Or.App. 363,590 P.2d 274 |
| Parties | STATE of Oregon, Respondent, v. Terry Edward MONTIGUE, Appellant. 0544; CA 11143. |
| Court | Oregon Court of Appeals |
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.
Before SCHWAB, C. J., and THORNTON, TANZER and BUTTLER, JJ.
Defendant was convicted of illegal possession of dangerous drugs, ORS 167.207. He assigns as error the denial of his motion to suppress evidence seized in a search pursuant to a search warrant and his motion to controvert the underlying affidavit.
Defendant argued that suppression was required due to lack of probable cause in that neither the credibility of the informant nor the reliability of his information was established in the affidavit. This argument was rejected in State v. Poteet, 9 Or.App. 231, 235-37, 495 P.2d 783, rev. den. (1972), which holds that an informant's reliability is sufficiently established where, as here, he is named and his information comes from personal observation. See also State v. Bidwell, 14 Or.App. 679, 514 P.2d 559 (1973) rev. den. (1974); State v. Poole, 11 Or.App. 55, 500 P.2d 726 rev. den. (1972).
Defendant's second assignment of error is that the trial court improperly denied his motion to controvert. The motion challenged the truthfulness of the informant's statements. It did not challenge the truthfulness of the affiant's reportage of the information he received. Motions to controvert are governed by ORS 133.693, 1 which provides for controversion only of the affiant's allegations, not of the underlying information. Subsection (1) provides that the defendant may contest the "good faith, accuracy and truthfulness of the affiant." This means that "the defendant may challenge the good faith but not the objective truth of testimony offered in support of probable cause." Commentary, Oregon Criminal Procedure Code § 168 at 107 (1968). The wording of the other sections differ slightly but the changes are not significant. The reference in subsection (2) to the "the evidence presented to the issuing authority" and the reference in subsection (5) to "any inaccuracy," simply refer back to subsection (1); they do not contradict it. Because the motion did not seek to controvert the affiant's allegations, it was properly denied.
Defendant renewed his motion at trial after the informant testified to different facts than those attributed to him in the affidavit. The difference is scant. The affidavit recounts that the informant observed marijuana and white powder which defendant identified as cocaine in defendant's home; he testified that he observed white powder, pills and marijuana, but he was equivocal about whether he knew the white powder he observed was cocaine or whether defendant so identified it. The affidavit and testimony also differed by four hours as to the time of day of the observation.
Assuming for argument that the motion would have resulted in a finding that the affiant's report was inaccurate in this respect and that certain portions of the allegations of the affidavit must be stricken, that would not automatically require suppression. The test would be whether the court, "relying only on the accurate parts of the affidavit and disregarding the inaccurate parts (could) have independently determined there was probable cause to search." State v. Johnson, 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...
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State v. Montigue
...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, ......
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State v. Hitt
...Dunning, 81 Or.App. 296, 298-99, 724 P.2d 924 (1986); State v. Coatney, 44 Or.App. 13, 17-18, 604 P.2d 1269 (1980); State v. Montigue, 38 Or.App. 363, 365-66, 590 P.2d 274, aff'd on other grounds, 288 Or. 359, 605 P.2d 656 (1980). This court has noted but not decided the issue. See State v.......
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State v. Hodges
...asserts that the allegations derived from Louise Mitchell are legally incompetent to establish probable cause. See State v. Montigue, 38 Or.App. 363, 590 P.2d 274 Rev. allowed (1979). We do not reach the issue because if we assume the allegations are improper and disregard them, it becomes ......
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State v. Coatney, 35910
...a defendant may only controvert the Affiant's allegations, not the underlying information supplied by the informant. State v. Montigue, 38 Or.App. 363, 365-66, 590 P.2d 274, Review allowed 286 Or. 149 (1979). We agree with the trial court that it was proper to deny defendant's motion to con......