State v. Hall

ROSSMAN, J.,

dissenting.

I believe that the affidavit, if read in a common sense, nontechnical manner, adequately establishes the informants’ basis of knowledge under Spinelli v. United States, 393 US 410, 89 S Ct 584, 21 L Ed 2d 637 (1969), and Aquilar v. Texas, 378 US 108, 84 S Ct 1509, 12 L Ed 2d 723 (1964). Thus, I do not agree with the majority’s conclusion that the trial court properly suppressed the evidence. Accordingly, I dissent.

This case turns on what is, or is not, stated within the four corners of the affidavit. In our evaluation of that document, we should be mindful of two well-accepted and significant legal principles. First, in considering the adequacy of a search warrant affidavit, the court should construe what is stated in the affidavit in a common sense and realistic manner. State v. Villagran, 294 Or 404, 408, 657 P2d 1223 (1983). Second, in marginal cases, the court’s decision should be tempered by the preference to be accorded warrants. State v. Harvey, 53 Or App 478, 482, 632 P2d 487, rev den 291 Or 893 (1981). When the present affidavit is viewed in this light, it becomes apparent that it is sufficient.

I begin by focusing on the part of the affidavit reciting the information provided by the so-called “CRC” regarding the 65th Street residence. The affidavit states:

“The CRC further advised that Marvin Hall [defendant’s husband] has a safe in the upstairs portion of the residence located at 989 North 65th Street, Springfield, Lane County, Oregon and that Mr. Hall stores marijuana and methamphetamine within said safe. * * * Mr. Hall keeps the bulk of his controlled substance supply within [the 65th Street] residence.”

The trial judge, in his conscientious effort to resolve this case, acknowledged that, under a totality of the circumstances test:

“* * * I would be comfortable with this affidavit * * * because I think that there’s enough detail and enough other information that, looking at the thing in its entirety, I would like to find that it’s sufficient. * * *”

However, he chose to disregard the above-quoted information because, in the court’s words:

“* * * In each of those [earlier Oregon] cases, the Court has *607indicated there was a two-prong test that needed to be satisfied, and in each of those cases it was satisfied by the fact that there was personal presence by the informant. So it appears to be the law.
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“* * * [N]owhere in [the affidavit] does it indicate that the CRC has been personally present or has been in the residence to see the safe or see the drugs on the premises, or whatever. It’s just statements that are there.”

It seems that the trial court’s decision was based on a belief that the case law requires that the affidavit contain a direct statement to the effect that the “CRC” was present and saw illegal activity. This also appears to be the underlying premise of the majority opinion.

I believe that the case law runs contrary to such a notion. As we stated in State v. Mellinger, 52 Or App 21, 25, 627 P2d 897 (1981):

“* * * Whether a particular affidavit supports the magistrate’s determination does not depend upon the existence of specific facts or information. Each affidavit must be examined in a common sense, nontechnical manner, looking at the facts recited and the reasonable inference that can be drawn from those facts.” (Emphasis supplied.)

One way in which personal knowledge may be inferred in the absence of an express statement is through the amount of detail given by the informant. Spinelli v. United States, supra, 393 US at 416 (citing Draper v. United States, 358 US 307, 79 S Ct 329, 3 L Ed 2d 327 (1959)); State v. Villagran, supra, 294 Or at 408. Here, the “CRC’s” statement is sufficiently detailed to allow an inference of personal knowledge: (1) He related the kinds of drugs which Mr. Hall kept in the 65th Street residence. (2) He referred to the fact that the drugs were kept in a safe. (3) He identified where the safe was kept — upstairs. (4) He also stated that Mr. Hall kept the bulk of his illegal drugs at the residence. I acknowledge that it is most inappropriate indeed for a judge to jump to any conclusions when evaluating the sufficiency of an affidavit but, on the basis of a recitation of such details by the “CRC,” I would conclude that it is unlikely that the “CRC” did not make personal observations of those things.

As the state points out in its brief, another way in *608which the personal knowledge of an informant may be inferred is through evidence of a personal relationship with a reliable source, such as the defendant himself. See State v. Villagran, supra, 294 Or at 412; State v. Mellinger, supra, 52 Or App at 25. Here, there are statements throughout the affidavit reflecting a personal relationship between the “CRC” and Mr. Hall and also indicating that the “CRC” had been inside the 65th Street residence on many occasions. Not only did the affidavit state that the “CRC” was personally acquainted with Mr. Hall, it also stated that he was acquainted with defendant, Mrs. Hall. The “CRC” was aware of where Mr. Hall worked. He had personal knowledge that people were constantly coming and going to and from both Hall residences. He expressed personal knowledge that Mr. Hall had engaged in illegal drug trafficking for a substantial period of time. From that information a factfinder could reasonably infer that the “CRC” had been to the 65th Street residence and had seen persons arrive there, engage in illegal drug transactions with Mr. Hall and then leave.

Finally, regarding the 65th Street property, I believe, contrary to the position of the majority, that the information conveyed by the anonymous caller buttresses the affidavit. There are several facts showing that the caller was a neighbor who had actually seen the things which he reported. First, the caller wanted to remain anonymous. One could reasonably infer that he lived near Mr. Hall and was concerned about reprisal should Mr. Hall learn his identity. Second, the caller knew Mr. Hall by name. Third, the caller mentioned a concern for the neighborhood. Fourth, he was also aware of “a considerable amount of foot traffic” at the residence and recited in considerable detail the activity on Mr. Hall’s premises, including the times and length of visits. Taking that information as a whole, the caller’s personal knowledge is revealed. See State v. Age, 38 Or App 501, 503-04, 590 P2d 759 (1979).

Regarding defendant’s “second residence” (located at 4949 High Banks Road in Springfield), the affidavit contains three facts which, when read collectively, establish the basis of the “CRC’s” knowledge. First, the “CRC” took the affiant to the residence, thus showing that he had been there before. Second, he was aware — in considerable detail — of the activities at the residence, including the procedure by which drugs were transferred from the 65th Street residence and then sold *609at this location. Third, he expressly stated that he had personal knowledge of a constant flow of people to and from the residence. State v. Age, supra; State v. Ashkar, 24 Or App 447, 451-52, 545 P2d 912 (1976).