State v. Waterbury

• Decision Date: 26 February 1981
• Docket Number: No. J79-2319,J79-2319
• Citation: 50 Or.App. 115,622 P.2d 330
• Parties: STATE of Oregon, Respondent, v. Norman Lee WATERBURY, Appellant. ; CA 18002.
• Court: Oregon Court of Appeals

Page 330

622 P.2d 330

50 Or.App. 115

STATE of Oregon, Respondent, v. Norman Lee WATERBURY, Appellant.

No. J79-2319; CA 18002.

Court of Appeals of Oregon.

Argued and Submitted Oct. 24, 1980.

Jan. 19, 1981.

Reconsideration Denied Feb. 26, 1981.

Stephen L. Behrends, Eugene, argued the cause for appellant. With him on the brief was Charles O. Porter, Eugene.

James E. Mountain, Jr., Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

Before GILLETTE, P. J., and ROBERTS and CAMPBELL, JJ.

CAMPBELL, Judge.

Defendant was found guilty of manufacturing marijuana. Prior to trial, he moved to suppress evidence seized under a search warrant and also for an order to compel the state to disclose the name of a confidential informer and to compel his appearance at the motion to suppress hearing. The trial court denied both motions. Two issues are raised by this appeal: first, whether the state is required to disclose the identity of an informant where the informant's testimony is relevant only to the question of substantial official involvement in the informant's private search and seizure; second, whether, under the findings of fact made by the trial court, there was substantial official involvement in the private search so that the exclusionary rule applies.

In its memorandum decision denying the defendant's motion to suppress, the court made the following findings of fact:

"(In response to a phone call) Deputy Nores met the informant on the steps of the courthouse. The deputy had never seen the informant prior to that time. The informant related that he had discovered what he thought were marijuana plants. He was vague about the location. He told of the necessity to climb a rope or lower himself into a pit to reach the plants. The officer believed from that description the plants were probably in a narrow canyon. Actually they were in a building with a high barricade around all the walls. The officer asked the informant if the plants were on private or public property. The informant professed not to know, but that 'he thought it was private property.' The informant resisted answering inquiries concerning a more definite location of the plants. He finally told the deputy that he would meet him at a designated spot within a specific time. There was no clear understanding on the part of the deputy about what the informant was going to do, but a reasonable expectation could have been that the informant was going to produce further evidence to enable the deputy to obtain a search warrant. The informant met the deputy at the designated spot and brought with him some plants which the deputy immediately recognized as marijuana. The deputy and the informant then personally went before Judge Poole and obtained the search warrant."

In the ensuing search a marijuana-growing operation was discovered, and a large amount of the evidence was seized.

Defendant first assigns as error the trial judge's denial of his motion to compel disclosure of the informant's name and to compel his presence at the motion to suppress hearing. Defendant argues that the informant's testimony on the issue of whether the informant searched defendant's premises with the encouragement and active participation of the sheriff's officers would have been relevant and possibly favorable to defendant; therefore the court's refusal to compel disclosure of the informant's name infringes upon defendant's constitutional right to compulsory process for obtaining witnesses in his favor under Oregon Constitution, Article I, Section 11, and United States Constitution, Amendment VI. We disagree.

The state is authorized to withhold the identity of a confidential informant where failure to disclose will not infringe the constitutional rights of the defendant. ORS 135.855(1)(b). The purpose of the privilege is to protect the public's interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); State v. Elliott, 276 Or. 99, 553 P.2d 1058 (1976); State v. Cortman, 251 Or. 566, 446 P.2d 681 (1968), cert. den. 394 U.S. 951, 89 S.Ct. 1294, 22 L.Ed.2d 487 (1969). The scope of the privilege is limited by its purpose and must give way where the individual's right to make his defense is, upon balancing the two, more important than the public's interest in protecting the flow of information. State v. Elliott, supra, 276 Or. at 102, 553 P.2d 1058. As the Supreme Court stated in Elliott:

" * * * Whether a proper balance renders as error the failure to require production depends upon the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informant's testimony, and other relevant factors. Where production of the informant has been shown to be essential to a fair determination of a defendant's guilt or innocence, the privilege must give way. * * * " 276 Or. at 102, 553 P.2d 1058. Id. Quoting Roviaro 353 U.S. at 60-62, 77 S.Ct. at 627-28; State v. Cortman, supra, 251 Or. at 674, 446 P.2d 681.

Where the issue is not guilt or innocence, but the question of probable cause for an arrest or search, police officers are not required to disclose an informant's identity, McCray v. Illinois, 383 U.S. 300, 87 S.Ct....