State v. Russell

• Decision Date: 24 August 1982
• Citation: 293 Or. 469,650 P.2d 79
• Parties: STATE of Oregon, Petitioner on Review, v. Leland P. RUSSELL, Respondent on Review. CA A20189; SC 28331.
• Court: Oregon Supreme Court

Page 79

650 P.2d 79

293 Or. 469

STATE of Oregon, Petitioner on Review, v. Leland P. RUSSELL, Respondent on Review.

CA A20189; SC 28331.

Supreme Court of Oregon.

Argued and Submitted April 7, 1982.

Decided Aug. 24, 1982.

Charles Lee, Deputy Dist. Atty., Roseburg, argued the cause and filed the petition and brief for petitioner on review.

Dean Heiling, Roseburg, argued the cause for respondent on review. On the brief was Jack L. Banta, Roseburg.

Before DENECKE, C. J., ^* and LENT, LINDE, PETERSON, TANZER and CAMPBELL, JJ.

TANZER, Judge.

The state appeals an order suppressing evidence found in the execution of two search warrants. ¹ The Court of Appeals, in banc, 55 Or.App. 201, 636 P.2d 967, affirmed without opinion by an evenly divided court. The issue is whether an informant's credibility was established in a legally acceptable manner. We conclude that it was not.

The search warrant commanded the sheriff's office to search certain described property for marijuana and implements of cultivation. It was based upon an affidavit in which this was the allegation to establish probable cause.

" * * * (Y)esterday I talked to informant A and took A before the Judge to whom this affidavit is being brought so that the Judge could satisfy himself of A's credibility, that A told me that on August 17, 1980 about noon while looking for strayed livestock he came upon numerous plants growing at the location described on page one, which plants were being cultivated and were set out in a row along the edges of the clearing; and he saw plastic pipe laid out where the marijuana was growing; he further told me that at that time his companion identified the plants for him as marijuana; I showed him a marijuana plant in our office and he said it was the same as the plants he saw; A told me he was reporting this to me because marijuana is illegal and he hates people who sell marijuana to children."

Among the grounds stated in defendant's motion to suppress is:

"The search warrant affidavit * * * fails to state probable cause for issuance of the warrant in that it does not establish any substantial basis for crediting the hearsay of the unnamed informant * * *."

Preliminarily, it is necessary to sort out what is constitutional and what is statutory in order to address the statutory issues first. The Oregon code of criminal procedure specifies both the content of the information to be presented to the magistrate and the form in which that information is to be presented or recorded. ORS 133.545(1) and (2) provide that a search warrant may be issued by a judge upon application of a district attorney or police officer. Subsection (3) requires that applications be accompanied by affidavits which establish probable cause:

"(3) The application * * * shall be supported by one or more affidavits particularly setting forth the facts and circumstances tending to show that such things are in the places, or in the possession of the individuals, to be searched. If an affidavit is based in whole or in part on hearsay, the affiant shall set forth facts bearing on any unnamed informant's reliability and shall disclose, as far as possible, the means by which the information was obtained."

An alternative or supplemental means of establishing probable cause is provided by ORS 133.555(1) which authorizes an issuing magistrate to hear and record the testimony of witnesses:

"Before acting on the application, the judge may examine on oath the affiants, and the applicant and any witnesses he may produce, and may himself call such witnesses as he considers necessary to a decision. He shall make and keep a record of any testimony taken before him. The record shall be admissible as evidence on any motion to suppress."

Another subsection of ORS 133.545, not directly involved in this case, is nevertheless pertinent as it reflects the legislative design. ORS 133.545(4) provides:

"Instead of the written affidavit described in subsection (3) of this section, the judge may take an oral statement under oath when circumstances exist making it impracticable for a district attorney or police officer to obtain a warrant in person. The oral statement shall be recorded and transcribed. The transcribed statement shall be considered to be an affidavit for the purposes of this section. In such cases, the recording of the sworn oral statement and the transcribed statement shall be certified by the judge receiving it and shall be retained as a part of the record of proceedings for the issuance of the warrant."

Each of these sections requires that the sworn information submitted to the magistrate be made in or reduced to recorded form.

The drafters of ORS 133.545 intended that the statutory requirement as to content of the allegations reflect the Fourth Amendment requirements as expressed in existing and foreseeable decisions of the United States Supreme Court. See, Commentary to Proposed Criminal Procedure Code at 73. Requirements as to the form of the information, however, are distinct from requirements as to its content. The United States Supreme Court has apparently never held that any particular form of sworn information is constitutionally required. 2 LaFave, Search and Seizure, § 4.3(b), p. 45. ² Professor LaFave states that those jurisdictions which require recordation of sworn information provided to the magistrate do so by rule or statute. The Commentary to the Proposed Code indicates no recognition of constitutional mandates as to the form in which the information must be presented. Therefore, at least for purposes of this case, we consider ORS 133.545(3) and 133.555(1) as presenting purely statutory requirements as to the form and recordation of probable cause allegations made in support of search warrants, free from any constitutional context.

We find little in the literature about the purpose of rules and statutes requiring recordation of information on oath submitted to the magistrate except that such rules and statutes exist. The apparent purposes for such statutory requirements are to facilitate subsequent review for the existence of probable cause and to avoid the possibility of justification for a search or an arrest based upon facts or evidence discovered in the course of the execution of the warrant. See, LaFave, ibid. 46-47. These considerations are particularly appropriate for the review of ex parte proceedings involving the valued personal right of privacy. They also serve to minimize the necessity of calling issuing magistrates or other witnesses at a later hearing to prove what can easily be documented. These purposes are implicit in ORS 133.545(3) and (4) and express in ORS 133.555(1), which concludes:

" * * * The record shall be admissible as evidence on any motion to suppress."

Motions to suppress evidence are provided for by statute. Statutory grounds for a suppression include noncompliance with ORS 133.545 and 133.555. ³ Also, ORS 133.693 provides procedures whereby one who moves to suppress may "contest, by cross-examination or offering evidence, the good faith, accuracy and truthfulness of the affiant with respect to the evidence presented to establish probable cause for search or seizure." Thus the design of the code of criminal procedure is to enable a defendant to challenge by a motion to suppress evidence either the legal sufficiency or truthfulness of the sworn information upon which the magistrate acted. In doing so, he is entitled to the benefit of the statutory requirement that the information before the magistrate be presented or recorded in a form which will be available for review at a suppression hearing, usually before a different judge.

Here, the challenge is to the legal sufficiency of the affidavit rather than to its truthfulness. To determine its sufficiency, we...