State v. Villagran

RICHARDSON, J.,

dissenting.

The majority strikes down the warrant because the affidavit did not establish probable cause to believe the underground house on Cal Henry Road would contain evidence of the crime of manufacturing a controlled substance. I disagree and therefore dissent.

In reviewing the decision of a magistrate to issue a search warrant, we are guided by well established principles. First, there is a general preference in the law for warranted rather than warrantless searches. As the United States Supreme Court said:

“* * * 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 warrants. * * * ” United States v. Ventresca, 380 US 102, 109, 85 S Ct 741, 13 L Ed 2d 684 (1965).

A negative approach by reviewing courts toward warrant application would tend to discourage law enforcement officers from seeking warrants. Second, we should review affidavits for warrants in a common sense, nontechnical manner, with consideration for the practical problems facing an officer in drafting the affidavit. United States v. Ventresca, supra. The issuing magistrate is entitled to use not only the credible information in the affidavit but also any reasonable inferences that can be drawn from the four corners of the affidavit. Third, we must be mindful of what the term probable cause means. As we said in State v. Tidyman, 30 Or App 537, 541, 568 P2d 666, rev den 280 Or 683 (1977):

“* * * [P]robable 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, we are not reviewing to determine if the state has proven some required fact, but to determine whether a reasonable person could arrive at the conclusion *288that the sought for evidence was in the place requested to be searched. In that light, we defined probable cause to search in State v. Willis, 24 Or App 409, 412, 545 P2d 1392, rev den (1976):

“In the context of search and seizure, probable cause does not mean more likely than not, it means only a well-warranted suspicion. * * * ”

The information in an affidavit need not point to only one inference to the exclusion of all others; that would be akin to a standard of proof in a criminal case. It need not establish that the inference is more likely than not, because that would be a preponderance of the evidence standard.

The majority, while not reciting those principles, apparently would not find them disagreeable. Where the majority and I part company is in the application of those principles to the affidavit in this case.

The majority correctly notes an additional guideline germane to determining whether there is probable cause to believe the evidence will be found in the place searched. This guideline is denominated by the majority as the “most promising place” rule which was apparently coined in Porter v. United States, 335 F2d 602 (9th Cir 1964), cert den 379 US 983 (1965). In understanding the rationale of this rule it is important to know what the court did and did not say.

In Porter, the defendant robbed a bank wearing a particular hat and coat. A short time later he was arrested for a traffic offense while driving an Oldsmobile. He was not wearing the hat and coat described by the bank teller who had been robbed. Federal agents obtained two search warrants to look for the hat and coat: one for a search of the Oldsmobile and another for a search of a Rambler also owned by defendant. Defendant argued that there was no basis in the affidavit to infer that the hat and coat would be in either automobile. He also argued that because the agents sought the same items from two different places that established that there was no probable cause to believe the evidence was in either vehicle.

The court, in upholding the warrant, first noted that the affidavit stated that the bank teller had identified *289defendant and described the clothing he wore during the robbery and that the defendant had on different clothing when arrested. The court said:

“* * * It would seem that the most promising place to look for these objects, considering the fact that the suspect was driving an automobile with a foreign license, which he had registered under an assumed name, would be in the automobile. If he had been a person settled in the community, there might well have been more promising places to look for the objects in question. * * * ” 335 F2d at 604.

In response to the defendant’s argument that the existence of two warrants was inconsistent with the constitutional requirement of particularity, the court said:

“* * * As to the significance of the fact that two warrants were issued, one for the Oldsmobile and the other for the Rambler, surely the fact that a suspect has two automobiles, or two residences, does not mean that neither one of them can be searched, because the suspect may have concealed the wanted evidence in the other one. * * * ” 335 F2d at 605.

The rationale of the principle is not that the information in the affidavit must point to the single most promising place to the exclusion of all others. That would place an unnnecessary risk on the warrant application process that a reviewing court would strike down the warrant because there was a more promising place for the evidence than that selected by the affiant. The basic rationale is that the affidavit must disclose a basis for reasonably concluding that the place sought to be searched is a promising place to find the evidence. That the issuing magistrate or the reviewing court may decide there was a more promising place to search does not mean there is not probable cause to believe the evidence is in the place the application for the warrant designates.

The Oregon authorities cited by the majority all involve more than one promising place to search for the evidence. In State v. Skinner, 5 Or App 259, 483 P2d 87, rev den (1971), cert den 406 US 973 (1972), the police obtained a warrant to search both defendant’s residence and his vehicle for the murder weapon. In State v. Johnson, 34 Or App 73, 578 P2d 413, rev den 283 Or 235 (1978), the police searched defendant’s home, his vehicle and the truck he *290drove for his employer. In State v. Harris, 25 Or App 71, 547 P2d 1394, rev den (1976), the police searched defendant’s home and that of his father for clothing defendant wore when the crime was committed. In none of these cases did we discuss or conclude that the police had to select the single most promising place to search.

I believe the majority misconstrues as well as misapplies the principle by focusing on the word “most” in the phrase “most promising place.” In so doing, the majority has concluded that the Whistler’s Park address was the most promising place to search and that there was therefore not probable cause to search the underground house on Cal Henry Road.1

With the stated principles of search warrant analysis in mind, I analyze the affidavit differently than the majority.

The majority correctly concludes that all of the information in the affidavit is trustworthy and can be considered in determining the existence of probable cause. The affidavit indicates that Nora Villagran2 and Norman Lee Waterbury owned property seized from the Looking-glass location, including over a ton of marijuana, irrigation pumps, water pipes and planting materials. The application requested a warrant to search for “receipts, invoices, can-celled checks and ledger books regarding purchase and payment for” the items seized from the Lookingglass property. The affidavit designated the place to search as “the property located at a driveway adjacent to the Cal Henry driveway and residence located at 1054 Cal Henry Road and including a trailer[3] with a barn behind it, both to the left side of the driveway and an ‘underground’ house further down the driveway.” The police were seeking documentary evidence as to who had purchased some of the property seized in the search of the Lookingglass property. They *291were seeking it not solely from the underground house, as suggested by the majority, but from the Cal Henry Road property, which included a trailer house, a barn and the underground house. The evidence which was the basis of defendant’s conviction was seized from the trailer house on Cal Henry Road. There is no contention that the trailer house was beyond the scope of the search warrant.

The affidavit, directly or by implication, discloses that there was a rather sophisticated marijuana growing operation on the Lookingglass property and that Nora Villagran and Norman Lee Waterbury were directly involved in that enterprise. The list of items taken from Lookingglass does not contain any books, records, receipts or invoices relating to the enterprise. It is logical that the operator of an extensive enterprise involving elaborate irrigation equipment would have records of the purchase of the associated equipment. It is also logical that if the records were not found at Lookingglass, they would be elsewhere and where Nora Villagran or Norman Lee Waterbury lived.

The affidavit discloses at least two promising locations. Both of the individuals had a common mailing address on Whistler’s Park Road. It is logical that they lived at this address even though it was the business address of B & N Greenhouse Supply. There was also a basis in the affidavit for inferring that at least Waterbury lived on Cal Henry Road. It appears clear to me that the affiant was describing a single parcel of property on Cal Henry Road, including a barn, trailer house and the underground house. He described the location of these three structures in terms of a single driveway, not separate pieces of property on a public roadway. It is logical that the structure described as a trailer house was someone’s residence and also logical that it was Waterbury’s residence, because he was building an underground house on the property.

The majority says that nothing in the affidavit suggests the the underground house was sufficiently far-advanced to house anything much less the evidence sought by the warrant. I agree that there is no indication of the progress of the construction, but I do not agree that that *292necessarily means the house could not be a repository of records. More pertinent to our inquiry is the statement in the affidavit that the Cal Henry Road property contained a trailer house. This leads to an inference that there was a residence on the property in which Waterbury had an interest sufficient to build a house. Thus, the character of the underground house is not dispositive of the issue.

From the four corners of the affidavit, I conclude there was a basis to search the Cal Henry Road property. The search warrant affidavit should be sustained and the conviction affirmed. I dissent.

Thornton, Warren and Van Hoomissen, JJ., join in this dissent.

The record of the sentencing hearing discloses that a search warrant was also obtained for the Whistler’s Park address.

Nora Villagran is defendant’s sister.

Later in the affidavit the trailer is described as a “trailer house.”