State v. Tacker
| Decision Date | 09 September 1965 |
| Citation | 10 A.L.R.3d 355,407 P.2d 851,241 Or. 597 |
| Parties | , 10 A.L.R.3d 355 The STATE of Oregon, Respondent, v. Jay D. TACKER, Appellant. |
| Court | Oregon Supreme Court |
Jack R. Hannam, Portland, argued the cause for appellant. With him on the brief was John P. Ronchetto, Portland.
George M. Joseph, Deputy Dist. Atty., Portland, argued the cause for respondent. On the brief were George Van Hoomissen, Dist. Atty., and Lewis B. Hampton, Deputy Dist. Atty., portland.
Before McALLISTER, C. J., and PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN and LUSK JJ.
The defendant was convicted of the crime of receiving and concealing stolen property and appeals.
His sole contention of error is based upon the trial court's failure to sustain his motion to suppress the property he was alleged to have received and concealed.
His contention that the motion to suppress was erroneously overruled is grounded on the contention that the affidavit upon which a search warrant was issued and the property seized was insufficient in that it is based upon information and belief.
The affidavit upon which the search warrant was issued is as follows:
'STATE OF OREGON,
County of Multnomah.} ss.
'I, ED GROHS, being first duly sworn depose and say:
'That I make this affidavit for issuance of a search warrant of a certain dwelling, commonly known as and located at 4400 S. E. 130th Avenue, in Multnomah County, Oregon, said dwelling being occupied by one J. D. Tacker.
'That I have been told by informants that they have personally seen displayed at the above described premises certain stolen guns, described as follows:
'One (1) Iver Johnson .22 Caliber Target Pistol, Long Octigan Barrell, Serial No. 80848 MDL of 1900 vintage;
'One (1) Colt .22 Caliber Woodsman Automatic Pistol, 6 inch Barrell, Serial No. 92444;
'One (1) Remington .41 Caliber 2-Barrell Derringer, Serial No. NPXX No. 614;
'One (1) Colt Pocket Navy Pistol .38 Caliber, No. 93971;
'That said informants have personally seen the above-described guns on the above-described premises during the first days of January, 1964.
'That the informants have described the above-mentioned guns seen at the above-described premises in the same details as above described.
'That I am informed by said informants that the above mentioned guns were taken during a burglary of a tavern in Kelso, Washington, and that the above-described guns, as described by said informants, fit the description of certain stolen guns taken in a burglary of a tavern in Kelso, Washington, which knowledge we have gained through communication with police in Kelso, Washington.
'That said informants have disclosed the precise whereabouts of said guns in the said above-described premises.
'I pray that the above-entitled court issue a search warrant to search for the above-mentioned and described property.
/s/ Ed Grohs
'Subscribed and sworn to before me this 14th day of January, 1964.
/s/ John F. Gantenbein
District Judge.'
The affidavit discloses that in form it is not sworn to upon information and belief. It appears that defendant's contention is that a search warrant may not issue unless the deponent has personal knowledge that the property sought to be seized is upon the premises sought to be searched, and, therefore, such an affidavit is upon information and belief.
The essential question then is whether an affidavit containing hearsay declarations of facts, presumably within the personal knowledge of an informant, constitutes probable cause for the issuance of a valid warrant.
This court has never passed upon this precise question. However, this precise question was thoroughly considered by the Supreme Court of the United States in Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed.2d 697, where the court stated the question as follows:
'* * * The question here is whether an affidavit which sets out personal observations relating to the existence of cause to search is to be deemed insufficient by virtue of the fact that it sets out not the affiant's observations but those of another.'
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State v. Farrar
...See ORS 133.555(1), (2). We are to construe the supporting affidavit in a common-sense and realistic fashion. State v. Tacker, 241 Or 597, 601, 407 P2d 851 (1965), quoting from United States v. Ventresca, 380 US 102, 108, 85 S Ct 741 , 13 L Ed 2d 684 The facts set forth in the search warran......
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State v. Cartwright
...its obvious meaning. He was not required to speculate that the affiant may have intended the opposite of what he said. See State v. Tacker, 241 Or. 597, 407 P.2d 851; United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d There was no error in denying the motion to suppress......
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State v. Lambert
...cases in favor of holding the warrant valid.” State v. Ingram, 251 Or. 324, 329, 445 P.2d 503 (1968); see also State v. Tacker, 241 Or. 597, 601–02, 407 P.2d 851 (1965). Here, defendant argues that certain facts alleged in the affidavit are too “stale” to support probable cause. The concept......
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State v. Luman
...when warrants are challenged, courts resolve doubtful or marginal cases in favor of the preference for warrants, State v. Tacker, 241 Or. 597, 602, 407 P.2d 851 (1965), in order to encourage the use of warrants by the police before they That preference has its origins in the constitutional ......