State v. Ronniger

• Decision Date: 27 December 1971
• Citation: 7 Or.App. 447,492 P.2d 298,93 Adv.Sh. 1576
• Parties: STATE of Oregon, Respondent, v. Stephen Laurence RONNIGER, Appellant.
• Court: Oregon Court of Appeals

Page 298

492 P.2d 298

7 Or.App. 447

STATE of Oregon, Respondent, v. Stephen Laurence RONNIGER, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted Sept. 23, 1971.

Decided Dec. 27, 1971.

David H. Blunt, Salem, argued the cause and filed the brief for appellant.

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 SCHWAB, C.J., and FOLEY and FORT, JJ.

FOLEY, Judge.

Defendant was convicted in a court trial of illegal possession of narcotics (marihuana). Thereafter he pleaded guilty to illegal possession of a dangerous drug (LSD) and received concurrent 10-year sentences. He appeals, alleging lack of probable cause to issue a search warrant, errors in the search warrant procedure, failure to allow defendant to controvert the affidavit for search warrant, insufficient proof of possession, errors in accepting his guilty plea and that the sentences are constitutionally invalid as constituting cruel and unusual punishment.

On January 16, 1970, the district court judge issued a search warrant 'to any sheriff or police officer * * *' commanding him to

'* * * make immediate search * * * of the house, garage and any vehicles parked therein at the residence located at 2458 1/2 Monroe Street, Eugene, Lane County, Oregon, for the narcotic drug marihuana and the dangerous drug amphetamine * * *.'

On January 22, 1970, the return of search warrant was filed in the District Court for Lane County. This inventory included not only drugs mentioned in the search warrant, but numerous chemicals, beakers, funnels, stirring rods, spatulas, bottles, needles, syringes, and a variety of textbooks on chemistry, pharmacy, and synthetic drugs. The defendant filed in the circuit court a motion to suppress all of the evidence seized in the search, and after a hearing the circuit court suppressed all of the evidence seized except:

'Three (3) small plastic containers with white powder in them. Removed from Ronniger's person.

'Three (3) lids of vegetable material resembling marihuana. Taken from lower dresser drawer in bedroom.

'Two (2) plastic bags full of white powder taken from between two skis in bedroom.

'One plastic bag of pills seized by Detective Veteto.

'One spoon with white powder from kitchen table.

'One (1) spoon from waste basket in kitchen.

'One (1) box of yellor and yellow and white capsules from bedroom.

'Several needles and syringes from waste basket in kitchen.

'One (1) box containing many small plastic bags.

'One (1) clear heat bulb from attached shed.

'Two syringes, one needle, eight empty capsules, from attached shed.',

apparently on the ground that the scope of the search and seizure exceeded that authorized by the search warrant.

Defendant's first assignment of error asserts irregularities and variations in the issuance, execution and return of the search warrant, which he claims invalidated the search and seizure. We will discuss them in order.

Defendant asserts that the issuance of the search warrant was based in part on the informal 'notes' which the district court judge took as supplemental corroborating information of that contained in the affidavit. However, the affidavit for a search warrant that Detective John Hayes, Eugene Police Department, originally presented to the district court judge adequately sets forth facts which warranted the issuance of the search warrant. It is not necessary for us to here decide in what form corroborative information taken by a magistrate should be. It is sufficient to say in this case that nothing in the notes was in any way contrary to the facts set forth in the affidavit and may simply be considered surplusage.

Defendant complains that the search warrant was directed to a 'police officer' contrary to the requirements of ORS 141.080. ORS 141.080 provides that a 'search warrant shall be in substantially' the form set forth therein. Emphasizing 'shall' and ignoring 'substantially,' defendant contends that the search in this case is invalid because the warrant is directed to 'any sheriff or police officer,' rather than to 'any sheriff or constable,' and because the warrant was in fact executed by a city police officer. Defendant's argument is without merit. A search warrant may be directed to any peace officer. ORS 141.020. 'Peace officer' includes a city policeman. ORS 133.170. It is such common practice for city police officers and members of the Oregon State Police to seek, obtain and execute search warrants that we take judicial note thereof. The form greeting set forth in ORS 141.080, 'To any sheriff or constable * * *' is an example, not an exclusive enumeration of persons to whom a search warrant may be directed.

Defendant next contends that the search warrant fails to designate the class of property being sought in the terms used in ORS 141.010. ¹ The search warrant recites '* * * that there are narcotics and dangerous drugs located at * * * (a residence), in violation of the laws of * * * Oregon * * *.' This language indicates that the warrant commands a search for property which is used in the commission of the crime of illegal possession of narcotics. More specific language is not required by the Statute.

Defendant objects that in executing the search warrant another police officer assisted Officer Hayes and that when Officer Hayes filed the return on the search warrant he used the other officer's list of property seized in preparing his return. There is no requirement that a single police officer must execute a search warrant unassisted by other officers. Defendant's objection that the officers failed to list in the receipt left with defendant two items seized is not material here, for those items (a driver's license and a book) were amoung the items suppressed by the trial court. United States v. Bridges, 419 F.2d 963, 967 (8th Cir. 1969). Also, seizure of items not used against him at trial is not grounds to invalidate an entire search. State v. Rutherford, Or.App., 91 Adv.Sh. 1049, 1051, 477 P.2d 911, Sup.Ct. review denied (1970).

Next, defendant complains that the search was overbroad, since the warrant commanded the seizure of only marihuana and amphetamine and not the other evidence seized. This complaint is without foundation. It is clear that other evidence of the crime under investigation can be seized, even though not described in a search warrant, if it is discovered in the course of a search no broader in scope than that authorized by the warrant. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); United States v. Bridges, supra (narcotics paraphernalia seized under warrant commanding search for heroin); State v. Garrett, Or.App., 93 Adv.Sh. 813, 489 P.2d 994 (1971). The seizure of other evidence was lawful. Indeed, it is not clear why the trial court suppressed as much evidence as it did.

Defendant complains that his person could not be searched under a warrant commanding only the search of the premises which he occupied. Even assuming that the search of defendant's person could not be upheld as substantially contemporaneous with, and incident to, a lawful arrest for possession of the drugs found elsewhere on the premises, the matter is moot. The evidence seized from defendant's person was not utilized in defendant's trial for possession of marihuana. The marihuana was found elsewhere. And even if the 'white powder' removed from defendant's person was some of the LSD which defendant pleaded guilty to possessing in that case, he cannot challenge the legality of this search and seizure on the direct appeal from his guilty plea. ORS 138.050 (appeal solely on basis of excessive penalty). Defendant's complaint, if he has one, lies in the post-conviction court.

In his first assignment defendant also argues that the police did not know the nature of some of the drugs and paraphernalia seized, and for that reason the fruits of their search should have been suppressed In toto, under the rule enunciated in State v. Elkins, 245 Or. 279, 284--286, 422 P.2d 250 (1966). Probable cause to seize may arise from the snythesis of what the officers know and observe as trained officers. Among the officers participating in the search of defendant's premises were personnel from the Eugene crime laboratory and the Oregon State Crime Laboratory. We agree with the trial court's finding that the police had reasonable grounds for seizing the drugs not suppressed, and were not acting on mere suspicion. Elkins is not applicable here. Cf. State v. Shaw, 3 Or.App. 346, 473 P.2d 159, Sup.Ct. review denied (1970).

Defendant also complains of the fact that the property seized from his residence was not physically delivered to the magistrate who issued the search warrant in this case. However, it is settled law that defects in the return of a search warrant are ministerial and are not grounds for invalidating the search, at least where defendant is not prejudiced thereby. See, e.g., State v. Cortman, 251 Or. 566, 571, 446 P.2d 681 (1968), cert. denied 394 U.S. 951, 89 S.Ct. 1294, 22 L.Ed.2d 487 (1969); State v. Marcus,2 Or.App. 269, 271--272, 467 P.2d 121, Sup.Ct. review denied (1970); United States v. Averell, 296 F.Supp. 1004, 1014 (E.D.N.Y.1969). This rule is applicable here. Defendant makes no claim that he was prejudiced by the fact that the property seized in the search complained of was retained in police custody, rather than physically delivered to the magistrate as provided in ORS ch. 141. His complaint in this regard is unwarranted.

Defendant complains that the district judge who issued the search warrant did not return the warrant and accompanying papers '* * * forthwith to the next court of the county having jurisdiction of the crime * * *' in accordance with ORS 141.190. Defendant does not contend that the magistrate's alleged failure to comply with ORS 141.190 prejudiced...