State v. Tidyman

• Citation: 30 Or.App. 537,568 P.2d 666
• Parties: STATE of Oregon, Respondent, v. John R. TIDYMAN, Appellant.
• Decision Date: 17 August 1977
• Court: Court of Appeals of Oregon

Page 666

568 P.2d 666

30 Or.App. 537

STATE of Oregon, Respondent, v. John R. TIDYMAN, Appellant.

Court of Appeals of Oregon.

Argued and Submitted May 20, 1977.

Decided Aug. 17, 1977.

J. Bradford Shiley, Jr. and Marvin S. Nepom, Portland, argued the cause and filed the brief for appellant.

Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before THORNTON, P. J., and TANZER and RICHARDSON, JJ.

TANZER, Judge.

This is an appeal from a judgment of conviction for disseminating obscene material in violation of ORS 167.087. The defendant makes several assignments of error.

I. INSUFFICIENCY OF THE SEARCH WARRANT

The defendant asserts that the affidavit for the search warrant is insufficient to allege probable cause and that the warrant does not describe the property to be seized with sufficient particularity.

A. Allegations of Probable Cause

The affidavit is lengthy and we summarize its allegations rather than burden these pages with its entirety. The affidavit, dated April 2, 1976, preliminarily recites that the objective of the search is to obtain evidence concerning ownership of the Star Theatre in northwest Portland. It states that a film titled "Pumpin' The Poop Chute" had been seized from the Star Theatre on March 25, 1976, and that there had been a judicial determination that there was probable cause to believe that the movie was obscene.

Defendant first challenges the allegation "(t)hat I have information from a confidential informant that JOHN TIDYMAN keeps and maintains records for several adult theatres in the office located at 519 NW 21 Avenue." Defendant asserts, the state concedes, and we agree that the allegation is entitled to no weight for lack of supporting allegations indicating reliability of the informant or the information. We therefore disregard it, but that is not the end of the inquiry. We have several times held that where an affidavit contains an erroneous or inaccurate allegation, its sufficiency will be measured by whether probable cause could be found from the remaining accurate allegations. State v. Hughes, 20 Or.App. 493, 532 P.2d 818 (1975); State v. Feehely, 27 Or.App. 343, 556 P.2d 142 (1976), rev. den. (1977); State v. Braun, 22 Or.App. 592, 540 P.2d 1029 (1975). We recently applied the same rule where, as here, the allegation to be disregarded is not necessarily untruthful, but incompetent. State v. Diaz, 29 Or.App. 523, 564 P.2d 1066 (1977). We therefore examine the remaining allegations for sufficiency to support a finding of probable cause.

The existence of probable cause is based on allegations which led the magistrate to three separate inferences which, read together, are sufficient.

There first appears a series of allegations from public records, handwriting analysis and other sources which lead clearly to the inference that defendant owns the Star Theatre under a fictitious name.

The affidavit then alleges that two receipts, dated February 3 and 7, 1976, made out to Tidyman Audio-Visual for electrical equipment were found during the course of the prior search of the Star Theatre. There was information from a named electrician's office that on March 31, 1976 they received a telephone request to fix some lights at the Star Theatre from a caller who gave his name and phone number. The name is verified in other allegations as an employe of the Star Theatre. The phone number is alleged to be that of Tidyman Audio-Visual, owned by the defendant, at a different northwest Portland address than the Star Theatre. Also, it was alleged that the defendant's father arrived with keys to the Star Theatre during the March 25 search, but departed and went directly to Tidyman Audio-Visual. From this information, the inference is permissible that at least some of the business of the Star Theatre is conducted from Tidyman Audio-Visual.

The affidavit further alleges that the defendant had been observed locking and unlocking the doors at the address of Tidyman Audio-Visual. The inference from these allegations and the similarity of name is that Tidyman Audio-Visual is the defendant's place of business.

In determining the sufficiency of an affidavit for a search warrant, we are guided by two general principles. First, we are guided by the preference of the law toward warranted rather than warrantless searches. As the United States Supreme Court has stated:

" * * * Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. * * * " United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). Quoted in State v. Tacker, 241 Or. 597, 602, 407 P.2d 851, 10 A.L.R.3d 355 (1965).

Second, probable cause is not so much a standard of proof as it is a barrier against governmental arbitrariness. The quantum must be such as guides a reasonable person and prevents official whim. Thus, in State v. Willis, 24 Or.App. 409, 412, 545 P.2d 1392, 1394, rev. den. (1976), we stated:

"In the context of search and seizure, probable cause does not mean more likely than not, it means only a well-warranted suspicion. State v. Keith, 2 Or.App. 133, 465 P.2d 724, Sup.Ct. review denied (1970). * * * "

The defendant contends that there is insufficient information for probable cause to believe that Star Theatre business records are at Tidyman Audio-Visual, particularly in light of the reasonable inference that such records are at the Star Theatre, which possibility is not negated in the affidavit. The fallacy of that contention is that the search warrant is not limited to business records of the Star Theatre. Rather, it is directed to business records, whether of the Star Theatre, the defendant, or any other source, pertaining to ownership of the Star Theatre.

In light of the principles stated in Tacker and Willis, we hold that the inferences that the defendant owns the Star Theatre under a false name, that some of the business of the Star Theatre is conducted from Tidyman Audio-Visual and that Tidyman Audio-Visual is defendant's place of business, allow the reasonable conclusion that there is probable cause to believe that some business records pertaining to the ownership of the Star Theatre would be present at Tidyman Audio-Visual.

B. Description of Property to be Seized

Defendant contends that the search warrant is constitutionally defective because the description of the property to be searched for and seized as "(b) usiness records pertaining to ownership of the STAR THEATRE located at 9 NW 6th Avenue" is insufficiently particular. The Fourth Amendment to the United States Constitution and Article I, Section 9 of the Oregon Constitution both require that

" * * * no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing * * * the * * * thing to be seized."

The line between what is and what is not sufficiently particular must be drawn with a view to the accomplishment of the constitutional purpose. In Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927), in which it was held that a seizure of a ledger and bills was not proper pursuant to a search warrant for liquor and articles for the manufacture of liquor, the United States Supreme Court stated the basic purpose as follows:

"The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." 275 U.S. at 196, 48 S.Ct. at 76.

Although subsequent cases have qualified that statement, it remains a valid expression of the principle. In essence, this portion of the Fourth Amendment is a prohibition against general warrants whereby administrative officers determine what is and what is not to be seized. The decision to seize must be judicial, not administrative, and the command to seize must be sufficiently particular to guide the officer to the thing intended to be seized and to minimize the danger of unwarranted invasion of privacy by unauthorized seizures.

The degree of specificity required to accomplish those purposes varies with the circumstances and with the nature of the property to be seized. LaFave, Search and Seizure: Course of True Law, 1966 U.Ill.L.Rev. 255, 268. Thus, in James v. United States, 416 F.2d 467, 473 (5th Cir. 1969), cert. den. 397 U.S. 907, 90 S.Ct. 902, 25 L.Ed.2d 87 (1970), the court upheld the fruits of a search warrant commanding seizure of "gambling paraphernalia, including but not limited to dice, crap tables, wires, magnets, coils, solenoid switches, records, sales receipts, customers' lists, shipping orders, supplies, machine equipment, machine tools and hand tools for the manufacture of gambling paraphernalia, including but not limited to dice, crap tables," etc., stating that

" * * * (t)he place to be searched and the items to be seized were as precisely identified in the warrant as the nature of the activity permitted. When circumstances make an exact description of instrumentalities, a virtual impossibility, the searching officer can only be expected to describe the generic class of items he is seeking. * * * " 416 F.2d at 473.

Similarly, in United States v. Wilson, 451 F.2d 209 (5th Cir. 1971), cert. den. 405 U.S. 1032, 92 S.Ct. 1298, 31 L.Ed.2d 490 (1972), the court upheld a warrant for the seizure of "paraphernalia for making coins." In each of these cases, the general term "paraphernalia" was modified by further description of the use for which the paraphernalia was intended.

The degree of specificity constitutionally required may also be affected by the nature of the...