State v. Nearing
| Decision Date | 17 December 1973 |
| Citation | 16 Or.App. 30,517 P.2d 308 |
| Parties | STATE of Oregon, Respondent, v. Thomas R. NEARING, Appellant. STATE of Oregon, Respondent, v. Doris BAKER, Appellant. |
| Court | Oregon Court of Appeals |
Robert Laman, Portland, argued the cause for appellants. With him on the brief were Darrell E. Bewley, Francis F. Yunker and J. Reynolds Barnes, Portland.
Jim G. Russell, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C.J., and LANGTRY and FORT, JJ.
These are consolidated criminal cases in which separately indicted defendants were convicted of criminal activity in drugs arising out of the same transaction. ORS 167.207. The assignments of error relate essentially to the validity of a search warrant.
On November 25, 1972, Deputy Sheriff Erin Kelley and Sgt. Rodney D. Englert applied for and obtained a search warrant to search the premises at 5631 S.E. 83rd Avenue, Portland, Oregon.
The affidavit was sworn to jointly by the officers and stated, inter alia, that a reliable informant, who had been inside the premises within the past 48 hours had observed narcotics in the possession of both defendants and within the past ten days, on other occasions, had observed these defendants engaged in both the sale and possession of narcotics there.
The warrant was served the following day, November 26, 1972, and a quantity of narcotics seized from the half of the basement defendants were subleasing from a family which occupied the rest of the house.
Defendants assert the court erred in denying their motion to controvert the supporting affidavit to the search warrant. They contend that they proved, with uncontradicted evidence, that the following allegation in the affidavit was untrue.
'Within the past 48 hours I was informed by a confidential, reliable informant that within the past 4, hours, the said informant had been inside a premises located in the 5600 block of SE 83rd, which premises I have personally observed and know to be entered through the rear door to the rear of the house in a two story, wood frame dwelling, green in color with white colored trim, black comp. roof located on the west side of the street adjacent to the Chinese Alley Restaurant Parking Lot, one lots (sic) south of the intersection of 83rd Ave and Foster Rd Streets in Portland, Multnomah County, Oregon(.)'
ORS 141.150 provides:
'If the person from whose possession the property was taken controverts the grounds of issuing the warrant, the magistrate shall proceed to examine the matter by taking testimony in relation thereto.'
At the outset we note that there is no supporting affidavit accompanying the motion to controvert, as is required by State v. Wright, 97 Or.Adv.Sh. 792, 795--797, 511 P.2d 1223, 1225 (1973), where the court said:
The court held in State v. Wright, supra:
'* * * (T)he trial court erred in conducting such a hearing at all in the absence of a preliminary showing by defendant by affidavit that there were reasons to doubt the bona fides of the affiant for the warrant.'
Because this case was tried before Wright was decided, we consider defendants' contention. As with other attacks on a search pursuant to warrant, the burden of proof rests on the defendants. 1 State v. Elkins, 245 Or. 279, 292, 422 P.2d 250 (1966).
The California Supreme Court, in Theodor v. Superior Court of Orange County, 8 Cal.3d 77, 104 Cal.Rptr. 226, 243, 501 P.2d 234, 251 (1973), has recently stated:
Defendants concede this fact but assert they had met this burden and that absent any contrary evidence by the state, the court should have granted their motion.
Generally, the credibility of witnesses is determined by the trier of fact. It is only in those instances where, as the Supreme Court has said, "'* * * disbelief of the story could not reasonably arise in the rational process of an ordinary intelligent mind * * *"' that the issue becomes one of law rather than of fact. See Rickard v. Ellis, 230 Or. 46, 51, 368 P.2d 396, 398 (1962).
Defendants testified that the witnesses called were the only persons within the premises during the 48-hour period alleged in the affidavit. Since each of the witnesses testified that he or she was not the informant, defendants assert that it necessarily follows that no informant had been in their residence as alleged. Regardless of the credibility of these witnesses, their testimony alone does not controvert the affidavit.
Only a few hours of the 48-hour period involved were accounted for by the testifying visitors. There were many more hours unaccounted for by any of the witnesses when none of them were present other than the defendants.
The issue then is whether, from the testimony produced by the defendants, the persons testifying on the motion to controvert were the only visitors on the premises during the 48-hour period and thus the defendants must be believed.
The court stated in Rickard v. Ellis, supra at 52, 368 P.2d at 398 that:
Clearly, defendants' interest in suppressing the evidence was such that the court below did not act unreasonably in disbelieving them. 2
Defendants next assert that the search warrant was invalid because it did not sufficiently describe the premises to be searched.
The warrant states, in pertinent part:
'* * * (Y)ou are hereby COMMANDED to make an immediate search...
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State v. Trax
...nature of the exception. For the proposition that this exception was "recognized," the court in Willcutt relied on State v. Nearing/Baker, 16 Or.App. 30, 517 P.2d 308 (1973) (where the officer who obtained the warrant did not know that defendants were renting only a portion of what appeared......
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State v. Mellinger
...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......
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...seized was pursuant to the warrant. The burden to show that the search was too extensive is the defendant's. State v. Nearing/Baker, 16 Or.App. 30, 517 P.2d 308 (1973); State v. Elkins, supra; see ORS 133.693(4). Defendant has not met the burden. The parameters of the search are determined ......
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State v. Johnson
...of the statements now challenged by defendant are not properly in issue before this court. See ORS 133.694(2); State v. Nearing/Baker, 16 Or.App. 30, 517 P.2d 308 (1973); See also State v. Wright, 266 Or. 163, 511 P.2d 1223 (1973); State v. Downes, 19 Or.App. 401, 528 P.2d 110 (1974), Sup.C......