State v. Buffington

VAN HOOMISSEN, J.,

dissenting.

I would hold that the affidavit is sufficient and that the magistrate had a substantial basis for his decision to issue the warrant. Therefore, I respectfully dissent.

When faced with an insufficiency argument, our function is to determine whether, on the basis of the facts and circumstances shown by the affidavit, a neutral and detached magistrate could conclude that there was probable cause to believe that the search would discover things specified in the affidavit in the places requested to be searched. We must construe the affidavit in a commonsense and realistic fashion. State v. Villagran, 294 Or 404, 408, 657 P2d 1223 (1983). Searches based on search warrants must be encouraged. Marginal cases must be resolved in favor of the preference accorded to warrants. In a close case, the benefit of the doubt must be given to the issuing magistrate.

An affidavit supporting a search warrant is tested by much less rigorous standards than those governing the admissibility or weight of evidence at trial. State v. Wilson/ Helms, 83 Or App 616, 620, 733 P2d 54, rev den 303 Or 172 (1987); State v. Harvey, 53 Or App 478, 481-82, 632 P2d 487, rev den 291 Or 893 (1981). Whether a particular affidavit supports the magistrate’s determination does not depend on the existence of specific facts or information. Each affidavit must be examined in a common sense, realistic and nontechnical manner, looking at the facts recited and the reasonable inferences that may be drawn therefrom. State v. Mellinger, 52 Or App 21, 25, 627 P2d 897 (1981). After the fact scrutiny by courts of the sufficiency of an affidavit must not take the form of de novo review.

The majority treats this affidavit as though it is based *566solely on information supplied by informants.1 However, it is not based solely on informant information; it contains much more.

First, the affidavit alleges that on February 6, 1985, FBI agent Gorman told the affiant that, while staying at a motel in Ashland, a key suspect in a major west coast cocaine-trafficking organization had telephoned defendant at her home in Ashland. A magistrate could infer either that the suspect had telephoned defendant to discuss the illegal use of cocaine or that the suspect had telephoned her for innocent reasons. However, the affidavit further alleges that Gorman told the affiant that the suspect also had telephoned an Ash-land business. A subsequent investigation of the owner of that business led to his arrest on a charge of unlawful possession of cocaine after about an ounce of cocaine was seized at his residence. Read together, those allegations support a reasonable inference that defendant and the suspect were discussing a cocaine deal. That a person the suspect called was arrested in January, 1986, for possession of cocaine strengthens that inference.

Second, the affidavit alleges that, while executing a search warrant at a different residence in Ashland on February 14,1985, the affiant discovered cocaine paraphernalia containing cocaine residue and that a document in the residence identified defendant as an associate of its occupants. That *567allegation supports a reasonable inference that defendant was associated with known possessors or users of cocaine and, when read in conjunction with the other material allegations of the affidavit, it supports a reasonable inference that the sale of cocaine was the basis of the association.

Third, the affidavit alleges that two of defendant’s neighbors told the affiant that they suspected that defendant “was selling drugs on a continuous basis,” based on the unusually large amount of traffic in and out of her residence and the brief duration of each visitor’s stay. Of the 30 license plate numbers the neighbors provided the police over a two-week period, the affiant checked the criminal records of about half of the registered owners. He found that four had criminal records showing arrests on narcotics charges. A fifth was then under police investigation for cocaine trafficking. On May 28, 1986, the neighbors told the affiant that the amount of traffic had been increasing over the past few days. The magistrate properly considered that information. See State v. Ingram, 251 Or 324, 328-29, 445 P2d 503 (1968).

Defendant argues that, under State v. Urbach, 83 Or App 39, 730 P2d 571 (1986), unless the magistrate was presented with evidence that an unusually large number of people entering and quickly leaving a residence is an indication of drug trafficking, the magistrate could not reasonably reach that conclusion. In Urbach, we held that, standing alone, the allegation that an informant reported seeing 1/4 to 1/2 ounce of methamphetamine in the defendant’s home within the past 48 hours would not support the issuance of a warrant, because there was nothing else in the affidavit to support the inference that the drug would still be there. We found significant the absence of any information from which the magistrate could determine whether the amount seen was such that it would not have been used or sold within 48 hours. In this case, when read together with all the other information in the affidavit, the information provided by defendant’s neighbors supports a reasonable inference that defendant was continuing to sell drugs in her residence within a few days before the affidavit was made. The trial court stated that “in reason and logic, * * * an individual looking at this from a common sense standpoint would conclude that someone in [defendant’s] house is probably selling drugs.” We recently stated that common *568sense is a proper component of probable cause if the articulated facts otherwise support it. State v. Cole/Hood, 87 Or App 93, 98 n 3, 741 P2d 525 (1987). On these facts, common sense tells me that, more likely than not, defendant was dealing cocaine at her house.2

Fourth, I do not agree with the state’s concession that the reputation information provided to the affiant by officer Snow is entitled to no weight. Defendant’s reputation for dealing cocaine also was corroborated by one of the affiant’s informants who told him on April 26, 1986, that defendant “has a reputation in the Ashland community as a well-known cocaine dealer.” As we noted recently in reviewing probable cause for an arrest,

“[defendant] urges strongly that not one of his observed activities could not have easily been engaged in by an innocent man. That is true. It is also beside the point. What [defendant] ignores is that probable cause emerges not from any single constituent activity, but, rather, from the overall pattern of *569activities. Each fragment of conduct may communicate nothing of significance, but the broad mosaic portrays a great deal. The whole may, indeed, be greater than the sum of its parts.” See State v. Cole/Hood, supra, 87 Or App at 97 n 2 (quoting Dawson v. State, 11 Md App 694, 707, 276 A2d 680 (1971)).

Fifth, in addition to the above information, the affidavit contains information provided independently by two confidential, reliable informants. Their veracity was sufficiently demonstrated. Their history of providing reliable information showed that they were truthful. See State v. Hor-wedel, 66 Or App 400, 674 P2d 623, rev den 296 Or 638 (1984); State v. Koppenhafer, 59 Or App 213, 650 P2d 981, rev den 294 Or 149 (1982); State v. Smith, 51 Or App 777, 627 P2d 26, rev den 291 Or 151 (1981). Other allegations in the affidavit tend to corroborate their information, further showing their veracity. See State v. Christen/Hankins, supra n 12.

As for their basis-of-knowledge, both informants stated that their information was based on “first-hand knowledge.”3 That allegation supports a reasonable inference that the informants were eyewitnesses and that their knowledge was not based on rumor or on the unverified report of a third person. It is reasonable to infer that the informants knew that defendant was selling cocaine because, for example, they had seen her doing so, bought some from her or had sold some to her for resale. The majority states that, if the informants had seen defendant selling cocaine or had bought some from or sold some to her, it is reasonable to infer that they would have said so. However, we do not review de novo. It is not relevant what the informants could have said. The question is whether the magistrate reasonably could infer from what the informants did say that their information was based on their personal observations. The informants’ basis-of-knowledge is strengthened by the other information in the affidavit which, *570cumulatively, is sufficient to show probable cause. See State v. Christen/Hankins, supra, 79 Or App at 781-82. Where, as here, the affiant reports mutually supportive tips from several informants, that corroboration should not be ignored or totally discounted.

“Basis of knowledge” and “veracity” should not be rigidly compartmentalized. Rather, a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. Illinois v. Gates, supra, 462 US at 233. “Basis of knowledge” and “veracity” are still highly relevant but they are not entirely separate and independent requirements. They should be understood simply as closely intertwined issues that may usefully illuminate the common sense practical question whether there is probable cause. Illinois v. Gates, supra, 462 US at 238. Although Oregon courts must apply the Aguilar/ Spinelli test, ORS 133.545(4), the question is: What does that test require?

In Illinois v. Gates, supra, the United States Supreme Court explained:

“Our original phrasing of the so-called ‘two pronged test’ in Aguilar v. Texas, supra, suggests that the two prongs were intended simply as guides to a magistrate’s determination of probable cause, not as inflexible, independent requirements applicable in every case. In Aguilar, we required only that ‘the magistrate must be informed of some of the underlying circumstances from which the officer concluded that the informant * * * was “credible” or his information “reliable.” ’ [Aguilar v. Texas, supra n 1,378 US] at 114 (emphasis added).
“As our language indicates, we intended neither a rigid compartmentalization of the inquiries into an informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge,’ nor that these inquiries be elaborate exegeses of an informant’s tip. Rather, we required only that some facts bearing on two particular issues be provided to the magistrate. Our decision in Jaben v. United States, 381 U.S. 214 (1965), demonstrated this latter point. We held there that a criminal complaint showed probable cause to believe the defendant had attempted to evade the payment of income taxes. We commented:
“ ‘Obviously any reliance upon factual allegations necessarily entails some degree of reliability upon the credibility of the source. * * * Nor does it indicate that each factual *571allegation which the affiant puts forth must be independently documented, or that each and every fact which contributed to his conclusions be spelled out in the complaint. * * * It simply requires that enough information be presented to the Commissioner to enable him to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process. ’ [381 US] at 224-225 (emphasis added).” 462 US at 230 n 6.

The majority’s analysis under ORS 133.545(4) does not follow the guidance provided by the United States Supreme Court in Illinois v. Gates, supra.

Even if the affidavit does not set forth the means by which the informants gained their knowledge, that does not mean that their tips cannot be used in determining probable cause. Their information may be used with other information in the affidavit to establish probable cause. See Spinelli v. United States, supra; State v. Christen/Hankins, supra, 79 Or App at 782.1 LaFave, Search and Seizure, § 3.3,566-67 (1978), explains:

“More difficult is the case in which it cannot quite be said that ‘probable cause is established without necessary resort to the hearsay’ but where this other information standing alone is nonetheless highly suspicious. May it be said in such a case that the informant’s story, albeit lacking a showing of the basis of knowledge, may be taken into account for the purpose of supplying the ‘little bit more’ which is needed to elevate this other information up to the level of probable cause? The answer is yes. As stated in Spinelli v. United States, [supra, 393 US at 418,] though there ‘the informant’s tip — even when corroborated to the extent indicated — was not sufficient to provide the basis for a finding of probable cause,’ it does not follow ‘that the tip was so insubstantial that it could not properly have counted in the magistrate’s determination. * * »

As for defendant’s “staleness” argument, the first informant told the affiant earlier in 1986 that “he/she” had first-hand knowledge that defendant “is and has been continuously involved in the sale of cocaine for some time.” The other informant told the affiant on April 26,1986, that defendant “is selling cocaine * * Further, the information from defendant’s neighbors was current. In addition to their earlier reports, they also told the affiant that the amount of traffic to *572defendant’s house had been increasing over the past few days. The affidavit was executed on May 30,1986. Therefore, there was information in the affidavit that defendant was still selling cocaine up to about a month before the affidavit was made.

Even if the affidavit was insufficient, I would not suppress the evidence. The police had objectively reasonable grounds for believing that the warrant was properly issued. Therefore, I would apply a good-faith exception to the exclusionary rule. See United States v. Leon, 468 US 897, 104 S Ct 3405, 82 L Ed 2d 677 (1984).

In sum, I would hold that the affidavit is sufficient. It gave the magistrate a substantial basis for his decision. Although standing alone the informants’ tips might not establish probable cause, because the affidavit failed to fully disclose the basis of their knowledge, that information, combined with the other information in the affidavit, provided a sufficient basis from which the magistrate could find probable cause to believe that there was evidence of criminal activity on the premises searched. Therefore, giving deference to the magistrate’s judgment, I would affirm the trial court.

Aguilar v. Texas, 378 US 108, 84 S Ct 1509, 12 L Ed 2d 723 (1964) held that, when a search warrant is issued solely on information supplied by an informant, the affidavit must contain information bearing on the reliability of the informant and the basis of his knowledge. See State v. Christen/Hankins, 79 Or App 774, 781, 720 P2d 1303 (1986). Spinelli v. United States, 393 US 410, 418, 89 S Ct 584, 21 L Ed 2d 637 (1969) held that an informant’s tip, which alone does not satisfy Aguilar nevertheless, may be considered by a magistrate along with other corroborative information in the affidavit to establish probable cause. See State v. Christen/Hankins, supra, 79 Or App at 782.

The Aguilar/Spinelli rule, codified in ORS 133.545(4), has little relation to the real world in which probable cause determinations are made. The rule does not provide usable guidance to the police who must prepare affidavits, often under limitations of time, training and experience, or to magistrates, who may not be lawyers, who decide whether to issue warrants. The United States Supreme Court has rejected the Aguilar/ Spinelli test, see Massachusetts v. Upton, 466 US 727, 104 S Ct 2085, 80 L Ed 2d 721 (1984); Illinois v. Gates, 462 US 213, 103 S Ct 2317, 76 L Ed 2d 527 (1983), and has adopted a “totality of the circumstances test.” The Oregon Legislature should do likewise. An ovérall practical determination, based on the “totality of the circumstances,” should be substituted for the formalism of Aguilar/Spinelli, which, as this case convincingly demonstrates, has become unduly rigid.

At the suppression hearing, the trial court stated, in relevant part:

“The raw facts here are that on May 14th ‘86 the neighbors tell us what they observed and there’s 30 different license plates of people visiting at 901 Glendale, and the officer then checks the criminal record of approximately half of the registered owners and found four of them have criminal records showing prior offenses for narcotics.
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“And they stayed for short periods of time. I can agree with everything else you say about the Affidavit. The other is bald conclusion, but to me the neighbors — and I take it they are reasonable people, and I think that the law ought to support that type of belief in the community, and I think that that is sufficient to establish probable cause. I recognize that no one went into the house and no one says in here that if you go in there you’ll probably find marijuana. I think in reason and logic, though, an individual looking at this from a common sense standpoint would conclude that someone in that house is probably selling drugs. So recognizing that it may be a close call with respect to State v. Hall, that’s the way I’m going to construe this Affidavit. So the Motion to Suppress is denied.”

The trial court’s quoted statement could be read to mean that it found that everything in the affidavit, except the information provided by defendant’s neighbors, was “bald conclusion,” but that the neighbors’ information alone was strong enough to overcome any other deficiencies in the affidavit. I would not read the court’s statement in that manner. Rather, I conclude that the court examined the affidavit in its entirety and found that it was sufficient. However, even if the trial court sustained the sufficiency of the affidavit solely on the basis of the neighbors’ information, this court must review the affidavit to determine whether it gave the magistrate probable cause to issue the search warrant, and we are bound to affirm the trial court even if it is right for the wrong reason. See State v. Carter/Dawson, 287 Or 479, 488, 600 P2d 873 (1979); State v. Dowell, 274 Or 547, 552, 547 P2d 619 (1976).

Defendant relies on State v. Hall, 79 Or App 597, 720 P2d 376, rev den 301 Or 765 (1986). Hall is distinguishable. There, we stated that an informant’s statement that, “from his personal knowledge,” the defendant’s husband had been engaged in drug trafficking for some time is “conclusory and does not explain how [the informant] reached that conclusion.” 79 Or App at 604. There is a difference between the informant’s “personal knowledge” in Hall and the two informants’ “first-hand knowledge” in this case. One could as reasonably infer that the former was based on hearsay as that it was based on personal observation. In this case, it is reasonable to infer that the informants knew defendant was selling cocaine because, for example, they had seen her doing so, bought some from her or had sold some to her for resale.