State v. Veley, CR77-500
| Decision Date | 21 November 1978 |
| Docket Number | No. CR77-500,CR77-500 |
| Citation | 37 Or.App. 235,586 P.2d 1130 |
| Parties | STATE of Oregon, Appellant, v. William Irvin VELEY, Respondent. ; CA 10985. |
| Court | Oregon Court of Appeals |
James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and Catherine Allan, Asst. Atty. Gen., Salem, filed the brief for appellant. Gretchen R. Morris and Fenner, Barnhisel & Morris, Corvallis, filed the brief for respondent.
Before SCHWAB, C. J., and JOHNSON, GILLETTE and ROBERTS, JJ.
Defendant was charged with contributing to the sexual delinquency of a minor. ORS 163.435. The state appeals from a pre-trial order granting defendant's motion to suppress evidence seized under a search warrant on the grounds there was no probable cause to believe the items specified in the warrant, I. e., condoms, pubic hair, and semen stains, were still on the premises at the time the warrant was sought.
The affidavit for the search warrant was executed by a deputy district attorney on July 1, 1977, and was based upon the statements to the police by the complainant, a female aged 16. It contains a lengthy and detailed description of her sexual contacts with the defendant, a 35-year-old male, during the period from late February to late March, 1977. On several occasions, the complainant and defendant had sexual intercourse in the back of his automobile. On at least two of these occasions she saw defendant remove a condom from the tool box under the front seat of the car. According to the affidavit the complainant's story was corroborated by a polygraph examination and the finding of an empty prophylactic package at one of the roadside spots at which she indicated they had parked.
The affidavit stated that it was the opinion of a criminologist with the Oregon State Police Crime Detection Laboratory that a semen stain on vinyl or fabric would remain unless cleaned off or rubbed off. The affidavit further stated that it was the opinion of a prosecutor with experience in rape cases that intercourse frequently dislodges pubic hair of one or both of the parties; that such hairs tend to show that sexual activity has occurred; and that such hair might become lodged between or behind seat cushions indefinitely.
The warrant authorizing the search of the vehicle was executed on July 8, 1977. The trial court found that "(f)rom the face of the affidavit it appears that the last alleged sexual intercourse occurred not later than the end of March, 1977," over 90 days before the application for the warrant. On that basis the trial court ruled that the information was stale.
The lapse of 90 days is not by itself decisive in determining probable cause. As the Oregon Supreme Court stated in State v. Ingram, 251 Or. 324, 327, 445 P.2d 503 (1968):
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