State v. Wright

• Decision Date: 27 February 1973
• Citation: 95 Adv.Sh. 1913,503 P.2d 514,11 Or.App. 560
• Parties: STATE of Oregon, Appellant, v. Rennia WRIGHT, Jr., Respondent.
• Court: Oregon Court of Appeals

Page 514

503 P.2d 514

11 Or.App. 560

STATE of Oregon, Appellant, v. Rennia WRIGHT, Jr., Respondent.

Court of Appeals of Oregon.

Argued and Submitted Oct. 27, 1972.

Decided Nov. 24, 1972.

Rehearing Denied Dec. 20, 1972.

Review Granted Feb. 27, 1973.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

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

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

FORT, Judge.

This case arises out of the granting by the circuit court of defendant's motion to suppress evidence seized by the police pursuant to a search warrant issued out of the Portland Municipal Court, and the state appeals.

The affidavit for the warrant stated:

'That I am a police officer of the Portland Police Bureau assigned to the Narcotics detail, and have investigated numerous cases of violation of the narcotics and dangerous drugs laws in the metropolitan Portland area during recent years;

'That on November 1, 1971, I was in contact with a person who has, in the past, furnished myself and other members of the Portland Police Bureau Narcotic detail with a considerable amount of information regarding narcotics and the illicit trafficking of narcotics in the City of Portland 'That I know the informant to be reliable because the information given to me and to other members of the Portland Police Bureau Narcotic detail, by this informant, has, in the past ten months, led to the seizures of narcotics and/or dangerous drugs on three occasions and to the arrests of three persons and, further, the informant has furnished me and other members of the Narcotic detail with information regarding the identity and activities of known narcotics users and dealers which I have verified, in conjunction with other officers, by investigation and/or personal knowledge;

'That the informant told me that the informant has, within the past 48 hours, been present in the residence at 5814 NE 17th Avenue, Portland, Multnomah County, Oregon. That the informant, while present therein, observed the occupant, Rennia Wright, possess a quantity of heroin, a narcotic drug. The informant further advised that the informant, on previous occasions, has observed Rennia Wright's friend, Carole Young, also possess heroin in the premises. The informant further advises that Rennia Wright has discussed the illicit heroin traffic with the informant in the presence of Carole Young on several occasions. The informant further advises that on previous occasions, the informant has observed Rennia Wright to possess heroin and to transport heroin in his, Rennia Wright's, personal automobile, a white, 1971 Cadillac, bearing Oregon license plates FFF--040. The informant stated that the informant knows that Rennia Wright has concealed heroin in this vehicle in the past and believes that heroin is presently concealed in it. The informant also stated that Rennia Wright has also indicated that he conceals heroin in the yard outside the residence of 5814 NE 17th Avenue and believes that Rennia Wright presently has heroin so concealed;

'That the said informant has considerable knowledge of what heroin looks like and how heroin is packaged and sold and has, in the past, used heroin;

'That the said informant advises that Rennia Wright, whom I personally know, and Carole Young, whom I personally know, both reside at 5814 NE 17th Avenue. That I have, on numerous occasions, observed both subjects to enter and leave the premises and further, that I was present when a search warrant was served on 5814 NE 17th Avenue on October 5, 1971, which resulted in the arrest of Carole Jean Young for Possession of Narcotics and Dangerous Drugs. During the search, numberous (sic) Personal items of Rennia Wright were found throughout the apartment;

'That the said informant advises that Rennia Wright possesses a handgun and a shotgun in the apartment;

'That the said informant advises that the residence of Rennia Wright and Carole Young, located at 5814 NE 17th Avenue, is a brown one-story wood frame duplex located on the East side of NE 17th Avenue. That the unit of the said Rennia Wright and Carole Young is the one to the South end and has it's (sic) own street number of 5814 NE 17th Avenue;

'That I am personally familiar with the premises of 5814 NE 17th Avenue and know it to be as described by the said informant;

'That based on the foregoing, I have probable cause to believe that there is located in the above-described premises, and the aforesaid described automobile and on the persons of the occupants of that said house, Rennia Wright and Carole Young a quantity of narcotics, to-wit: heroin and I therefore pray the above entitled Court to issue a Search Warrant to examine the above described premises, including the surrounding yard area and persons and search for the above described contraband property.' (Emphasis Supplied.)

Based thereon a judge of the Municipal Court of Portland issued a warrant requiring

'* * * immediate search of the person of the said Rennia Wright and Carole Young and in the premises situated at 5814 NE 17th Avenue, including the surrounding yard & a white 1971 Cadillac, Oregon license FFF--040 in the City of Portland, County and State aforesaid for the following contraband property. Heroin, a narcotic drug, and narcotics paraphernalia.'

The search of Wright and Young and of the described premises did not reveal heroin. However, the officers did in the course of the search discover in plain view ¹ both marihuana and lysergic acid diethylamide (Eskatrol).

In State v. Spicer, 3 Or.App. 120, 473 P.2d 147 (1970), this court, quoting with approval Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), said:

"* * * When an article subject to lawful seizure properly comes into an officer's possession in the course of a lawful search it would be entirely without reason to say that he must return it because it was not one of the things it was his business to look for. * * *" 3 Or.App. at 126, 473 P.2d at 151.

See also, State v. Muetzel, 121 Or. 561, 564--565, 254 P. 1010 (1927). The seizure of the marihuana and the Eskatrol was clearly valid, if the warrant itself was validly issued.

Subsequently both Wright and Young were indicted for illegal possession of narcotics and dangerous drugs. They each filed a motion to suppress the evidence seized. It was stipulated by counsel in the trial court that the evidence concerning the affidavit and the warrant would apply to both cases.

The principal challenge therefore is to the sufficiency of the affidavit, and secondarily to the propriety of certain procedures required by the trial judge.

It is elementary that no search or arrest warrant can issue except upon 'probable cause, shown by affidavit, naming or describing the person, and describing the property and the place to be searched.' ORS 141.030. Additionally, Oregon statutes provide:

'Before issuing the warrant, the magistrate shall examine on oath the complainant and any witnesses he may produce, take their depositions in writing and cause the depositions to be subscribed by the parties making them.' ORS 141.050,

and

'If the magistrate is satisfied that there is probable cause to believe that the grounds of the application exist, he shall issue the search warrant.' ORS 141.060.

Here the magistrate issued the warrant only on the basis of the affidavit above set forth. No further witnesses were produced by the complainant as permitted under ORS 141.050. Thus the question of the validity of the search warrant rests upon whether or not the affidavit established the requisite facts to support the magistrate's finding of probable cause. Examination of it satisfies us that it does.

In State v. Spicer, 254 Or. 68, 70--72, 456 P.2d 965, 966 (1969), our Supreme Court said:

"Probable cause' in an affidavit to procure a search warrant is much less than proof beyond a 'reasonable doubt' which is necessary to convict of crime. Therefore, hearsay evidence may be the basis for the issuance of a warrant if there is a substantial showing of the reliability of the hearsay. State v. Tacker, 241 Or. 597, 407 P.2d 851, 10 A.L.R.3d 355; United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684; McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62.

'The affidavit presented to the magistrate relates that the informer told the affiant that he had made several purchases of marijuana from Roy Spicer at a house located in Portland, Oregon, 'over a period of time since last summer.' The affidavit then recites factually what the affiant did to corroborate the information given him by the informant.

'Where hearsay is corroborated by a recital of facts within the personal knowledge of the affiant which would lead a reasonably cautious person to believe the informant to be reliable, then the hearsay is sufficient to justify probable cause for the issuance of a warrant or probable cause to arrest. State v. Henry, 249 Or. 287, 437 P.2d 851; State v. Penney, 242 Or. 470, 410 P.2d 226.

'* * *

'In the matter before us, the affidavit discloses that the informer, whose reliability was tested, stated he had made several purchases of marijuana over quite a long period of time from the defendant at the same place where he purchased for the officer. This, it would seem, would impress a reasonable mind with the thought that the possession of marijuana at the defendant's home was a continuing business enterprise and, in the absence of some fact that would disclose otherwise, the affidavit should be sustained. '* * * (A) ffidavits for search warrants * * * must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion.' United States v. Ventresca, supra, 380 U.S. 102, 108, 85 S.Ct. 741, 746.'

It is clear that under the 'informer's privilege' the state may withhold...