State v. Thacker

• Decision Date: 04 May 1972
• Citation: 496 P.2d 729,9 Or.App. 250
• Parties: STATE of Oregon, Respondent, v. Thomas Lynn THACKER, Appellant.
• Court: Oregon Court of Appeals

Page 729

496 P.2d 729

9 Or.App. 250

STATE of Oregon, Respondent, v. Thomas Lynn THACKER, Appellant.

Court of Appeals of Oregon, Department 1.

Argued and Submitted March 27, 1972.

Decided May 4, 1972.

Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.

John H. Clough, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gn., Salem.

Before SCHWAB, ^* C.J., and LANGTRY and THORNTON, JJ.

THORNTON, Judge.

Defendant appeals his conviction for the illegal possession of marihuana under former ORS 474.020. He assigns as error the denial of his motion to suppress evidence seized in a search of defendant's residence pursuant to search warrant.

The issuance of the search warrant was based on the following affidavit:

'I, Richard Grossnicklaus, depose and state:

'That I am a deputy sheriff in Linn County Oregon and have been so employed for five and one half years.

'That in the course of my employment I have had courses in drug identification * * *. That I have had numerous personal contracts with drugs as a part of my regular employment with the Linn County Sheriff's Office and have had particular contact with marijuana, and have had numerous opportunities to observe items which have been chemically tested and found to be marijuana;

'That on March 19, 1971 at about 8:00 P.M. I was contacted by an individual whom I know to be a residence of the Mehama area, and that on that date this individual informed me that he could make a purchase of marijuana at the Thacker residence at 410 South First Street, Mill City, Oregon.

'That on March 20, 1971 at 1:50 P.M. I again was contacted by this individual and an agreement was made to attempt to purchase the marijuana at the 410 South First Street address.

'That I, in the presence of Cpl. Thomas Drynan of the Oregon State Police, at 1:50 P.M. on March 20, 1971, did throughly (sic) search this individual and his vehicle and found no marijuana.

'That following the search of the individual and the vehicle at approximately 2:00 P.M. the individual drove in his vehicle to the 410 South First Street address, arriving there at approximately 2:09 P.M. and was observed arriving by Cpl. Drynan and Chief of Police Don Gillenwater of Mill City;

'That Cpl. Drynan and Chief Gillenwater watched the 410 South First Street Address until (sic) this individual left at 3:11 P.M., March 20, 1971, and that at 3:25 P.M., March 20, 1971, this individual contacted me and at that time had in his posession (sic) a plastic baggy (sic) containing approximately 12 grams of a substance I believe to be marijuana;

'That the location at which this individual contacted me was near the H & H Cedar Products at 3:25 P.M., a distance of approximately 3 miles from the 410 First Street address, and this location was the meeting place arranged before the individual left my presence at 2:00 P.M., March 20, 1971;

'That the individual stated that he had purchased this marijuana at the 410 South First Street address and also stated that while he was there he had observed the sale of a similar quantity of marijuana to another person, as well as the sale of some pills in a plastic bag, both sold to the same person at a price of $26.00;

'That I believe there is now marijuana at the residence at 410 South First Street in Mill City, Oregon, and I make this affidavit for the purpose of obtaining a search warrant for said residence.'

There was no record made of the hearing on the motion to suppress. However, a stipulation was made that the points of fact in the case were as related by Deputy Grossnicklaus in the affidavit. Our review of the motion to suppress is limited to the question of whether the facts stated on the face of the affidavit were sufficient to furnish probable cause for the issuance of the search warrant.

The defendant alleges that there was no showing of probable cause because the reliability of the informant was not established. We disagree. The reliability of an informant may be established by the independent corroboration of his information, as well as by a recital that he has...