State v. Cole

*452ROSSMAN, J.

Defendant was convicted of possession of a controlled substance, marijuana, following a consolidated stipulated facts trial involving nine similarly charged defendants after their motions to suppress were denied. On appeal, she assigns as error the trial court’s denial of her motion to controvert and motion to suppress evidence seized under a warrant. We affirm.

On August 16, 1983, the Josephine County Sheriffs Department conducted a surveillance flight over portions of the county in search of growing marijuana. Sgt. Pendergrass was the spotter on board the aircraft. Flying over land belonging to defendant and her husband, Pendergrass sighted and photographed what appeared to be a greenhouse. After the flight, he prepared a standardized report, which stated the conclusion, without explanation, that there was probable cause to believe that marijuana was being cultivated on defendant’s property. He delivered the report, along with the photographs and a surveyor’s map, to Detective Looney, who then drafted an affidavit in support of a warrant. The affidavit is a preprinted “standard” form with blanks to be filled in by the affiant.1 The material portions of the affidavit, with the information provided by Looney underlined, state:

“The information contained in this affidavit is based upon the police reports in this case and upon my own personal information;
“That Alan Pendergrass, Sergeant on the Josephine County Sheriffs Department, has reported to me that on 16 August, 1983, he was flying over the Coyote Creek area of Josephine County. He further indicated that this is an F.A.A. *453regulation 500 feet minimum height flight area and that he flew at an altitude of more than 500 feet above the ground level and that while so doing he observed growing marijuana plants. These plants were located within a structure that appears to be a greenhouse. Further, that structure is depicted in photographs of the area taken by Sgt. Pendergrass on 16 August, 1983, and I have reviewed those photographs. I observed that the growing marijuana appears to be approximately 200 feet from a mobile home, which appears to be the main living quarters on the property. Other smaller sheds and outbuildings are also visible.
“Further that he reported there were no other structures in close proximity to the growing marijuana.
“Sgt. Pendergrass has informed me that he has had training in the identification of growing marijuana and has participated in raids on confirmed marijuana fields.
“Sgt. Pendergrass has informed me that he has had 3 years experience in aerial observations of growing marijuana that resulted in subsequent seizures of marijuana on the ground which was confirmed by crime laboratory analysis of the seized marijuana.
“Further that when Sgt. Pendergrass observed the marijuana he took photographs of the marijuana from the air. These photographs were later compared by him with a surveyor’s aerial photographic map obtained from the Josephine County Surveyor’s Office of the Coyote Creek area of Josephine County, more specifically described as Township 33S., Range 5W., Section 21 West of the Willamette Meridian. At this time he determined the location of the marijuana and structures which he photographed from the air and marked the location on the Josephine County surveyor’s aerial photograph.
“On 18 August, 1983, I contacted the Josephine County Assessor’s Office. I requested the tax lots in the area marked by Sgt. Pendergrass on the aforementioned surveyor’s aerial photographic map be drawn in by a cartographer for the Josephine County Assessor’s Office. Vincent Lenton, a cartographer for the Josephine County Assessor’s Office outlined the tax lots on the surveyor’s aerial photographic map. Based upon all the above information, I determined that the above described marijuana and structures are located on tax lot 1102, T.33S., R.5W., Section 21 West of the Willamette Meridian, Josephine County, Oregon.”

*454On the basis of that affidavit,2 a warrant to search defendant’s property was issued. The search yielded 15 marijuana plants, which were apparently found inside a greenhouse-type structure.

Defendant contends that the critical statement contained in the affidavit, that Pendergrass “observed3 growing marijuana plants,” is not supported by the evidence adduced at the hearing on the motion to controvert and that, if that statement is deleted, the affidavit does not support a finding of probable cause necessary to authorize the issuance of a warrant.

Whether an affidavit for a search warrant is true and accurate is a question of fact. State v. Hughes, 20 Or App 493, 496, 532 P2d 818 (1975). In this case, this issue was resolved at the hearing on the motion to controvert.4 When factual questions arise on a motion to controvert, we are bound by the trial court’s findings of fact, if there is evidence in the record to support them. Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968); State v. Anspach, 68 Or App 164, 167, 682 P2d 786, reversed on other grounds 298 Or 375, 692 P2d 602 (1984). Here, the trial court made the critical finding that “the aerial identification of growing marijuana plants was achieved.”5

We find sufficient evidence in the record to support the trial court’s finding. Although Pendergrass testified that he could not identify individual plants, he stated that he was able to determine that marijuana was in the greenhouse based *455on color, size, and configuration. Defendant did not cross-examine Pendergrass about what he meant by configuration. We cannot say as a matter of law that, merely because he could not make out individual plants, he could not tell that the greenhouse contained marijuana. The configuration of the growing material which he said he observed may have presented other clues which helped him reach his conclusion. Given this state of the record, we cannot say that the trial court could not conclude that there was probable cause to believe that marijuana was growing in the greenhouse.

We respect the dissent’s position in this case. Understandably, one might question the visionary powers that Pendergrass professes to have; traditionally, these have been limited to that fabled “man of steel” from the planet Krypton. However, it is not for us to say whether the trial judge was wrong to believe Pendergrass. The trial court, because of its opportunity to view the witnesses and evidence firsthand, is clearly in a superior position to evaluate these matters. Defendant’s complaint on appeal expresses mere dissatisfaction with the trial court’s finding, about which we can do nothing. It is the trial judge’s role, not ours, to pass on the credibility of witnesses. We affirm the findings of the trial court.

Affirmed.

Our affirmance of this case should not be interpreted as an expression of our approval of using preprinted forms for affidavits. The affidavit in this case was a printed form with blanks left for such things as the name of the spotter, the date and the location of the spotting; it included specifics such as: “He reported there were no other structures observed in close proximity to the growing marijuana.”

The danger of using form affidavits is apparent in this case. The disputed passage, “he observed growing marijuana plants,” is part of the standardized form and allows no opportunity for elaboration and clarification. The use of forms causes us to doubt whether the investigators are actually making individual determinations. The preferred approach would be that each case be sufficiently developed to justify a carefully prepared affidavit which delineates the facts, eliminating the possibility of vague or misleading statements. The forms detract from the dignity and accuracy of the judicial process.

The developed photographs were not attached to the affidavit.

We treat the statement, as did the parties and the trial court, as meaning that he identified growing marijuana plants.

The search warrant affidavit can be challenged by a motion to controvert which is generally used in conjunction with a motion to suppress. The procedure is controlled by ORS 133.693.

The parties devote substantial portions of their briefs to a discussion of whether Looney acted in good faith. A defendant may contest the good faith of the affiant but also has the burden of proving that the affiant acted in bad faith. ORS 133.693(3) and (5). Here, defendant failed to meet that burden. The trial court found:

“The defendants have failed to show that any statements contained in the affidavits were made with reckless disregard for their truth or falsity, or were intentionally false.”

However, whether or not Looney acted in good faith is of no concern in this case. Once the truthfulness of the statements in the affidavit have been determined, as they have here, the affiant’s good faith becomes irrelevant.