Dеputy Sheriff Hamilton obtained a warrant to search Roger Dale Box’s house for controlled substances. Hamilton and a search team searched Box’s house and found methamphetamine. Defendants were indicted for possession of a controlled substance. ORS 475.992(4). The аffidavit supporting the warrant application was based, in part, on observations that officers had previously made during a warrantless search of the house. The court ruled that that information should be excised from the affidavit, because the state failed to establish that thе person who consented to the warrantless search had actual authority to grant consent. It then ruled that, without that information, the affidavit did not establish probable cause to search Box’s house, and it granted defendants’ motions to suppress. The state appeals. ORS 138.060(3). We reverse.
In his affidavit, Hamilton said:
“Detective Welty said that on September 20, 1990 at approximately 1:00 pm, he and two other detectives gained consent [to] search Roger Box’s residence by Richard Arnold who was in control of the residence, as they were searching for a wanted person. * * * Welty further stated that while he and other detectives were searching the residence he observed paraphernalia and packaging material associated with the sales and use of methamphetamines. Detective Welty said that he observed Arnold pick up a piece of plastic that Arnold put in his mouth. Detective Welty said that he recognized this piece of plastic as part of a package used to contain methamphetamine, as Detective Welty has worked in [an] undercover capacity and purchаsed methamphetamines on more than thirty (30) separate occasions.”
The trial court ruled that Welty’s statements about what he saw in Box’s house should be stricken from the affidavit, because the state failed to establish that Arnold had actual authority to consent to a searсh. The state bears the burden of proving the lawfulness of a warrantless search. ORS 133.693(4); Or Const, Art I, § 9;
State v.
Stevens,
Hamilton’s affidavit contains the conclusory statement that Arnold “was in control of the [Bоx] residence.” A more artfully drafted affidavit might have articulated
facts
that would establish that Arnold was in control of the house, but “[p]eople often speak in the shorthand of opinions or conclusions, not in the form of a recitation of pure fact. ’ ’
State v. Lichty,
Welty testified at the hearing on their motions. He said that he and two оther detectives went to Box’s house on September 20,1990. Richard Arnold, Sr., answered the door. The detectives identified themselves, because they were not wearing uniforms. Welty “asked him at that time whether or not he was in control of the residence because [the detectives] knew that the residence belonged to Roger Box.” Welty testified:
“[Arnold said that] he was watching the place while Roger was in jail; and we knew at that time that Roger Box was in jail. He further indicated that nobody came to the residence —inside the residence without his okay. He then allowеd us to search the residence.”
Welty’s testimony, if believed, is sufficient to establish that Box had granted Arnold actual authority to consent to a search of his house. Defendants offered no evidence to the *263 contrary. The trial court made no finding on Welty’s credibility, and he is, thereforе, presumed to be truthful. ORS 44.370. The state satisfied its burden of proving that the consent search was lawful.
In its oral ruling on defendants’ motions to suppress, the trial court indicated that Hamilton’s affidavit could not have established probable cause to search, even if the earlier consеnt search had been lawful. We disagree. The affidavit states that, on October 1, 1990, Hamilton spoke with Welty, who said that he and Sergeant Nelson had watched Box’s residence for two and a half hours on September 19. During that time,
“seven (7) separate vehicles came to the residеnce. Detective Welty described the visitors to the residence as ‘short term’ meaning only one of the occupants would leave the vehicle, the passenger would walk to the residence and then immediately return to the vehicle and leave. One of the vehicles parked around the corner from the residence and dropped a passenger off, the passenger walked to the residence, and then immediately returned to the waiting vehicle after making contact with an individual at the residence. Based on my training and experienсe and Detective Welty’s training and experience this type of short term traffic is consistent with narcotic sales.”
On September 29,1990, Hamilton spoke with Drennan, who “was currently under arrest [and was] in possession of methamphetamine.” Drennan told him that, 18 hours earlier, he had been at Bоx’s house “cutting up” three pounds of methamphetamine with Gunn, Arnold, Metzger and Smokey.
In its order granting defendants’ motions to suppress, the trial court concluded:
“The information provided by the named informant on the 29th of September, 1990, was not adequately corroborated * * *. The information derived from the September 19th surveillance and the September 20th consent search was stale by the time that the named informant provided the additional information on September 29th.”
The court correctly recognized that information provided by a named informant who is criminаlly involved must be corroborated.
State v. Carlile,
Defendants Gunn, Thomas and Carter argue that, even if the warrant was valid, the trial court’s decision should be affirmed, because the officers who conducted the search violated the “knock and announce” rule.
3
We will affirm the judgment of the trial court if it reached the correct result, even if for the wrong reason. Or Const, Art VII, § 3;
State v. Affeld,
ORS 133.575 does not specificаlly require that officers knock before entering — it requires-that they provide “appropriate notice.” The issue is whether running across the lawn while shouting “police, search warrant” is appropriate notice.
5
In
State v. Valentine/Darroch,
“It must be remembered that the police officers have the right to enter after they announce their presence and purpose and, if entry is denied, they have the right to force entry. The only right of privacy protected by the announcement requirement is the right to know who is entering, why he is entering, and a few seconds to prepare for his entry.”264 Or at 60 . (Emphasis supplied.)
In
State v. Bost,
Here, the trial court concluded that the officers did not violate the “knock and announce” rule. In its oral ruling, the court explained:.
“The purpose of the knock and announce rule is а requirement that officers announce their presence, their purpose, *266 and their intent of entry. And I think that the evidence as I viewed it establishes that that was done. So I find no violation of [the rule].”
That ruling reveals that the court did not consider whether the occupants of Box’s house had “a few seconds to prepare” for the officers’ entry, and there is no evidence indicating that the officers paused, even momentarily, before entering.
Compare State v. Stalbert,
Nonetheless, the evidence seized during the search is subject to suppression only if the violation of ORS 133.575(2) was “aggravated.”
Cf. State v. Bishop,
We have held that violations of ORS 133.575(2) were aggravated and required suppression in only three cases:
State v. Bost, supra; State v. Ford,
None of the aggravating circumstances that were present in
Tweed
or
Bost,
occurred here.
7
The officers arrived around 11:30 in the morning. They were not wearing uniforms, but they were wearing flak jackets with either “sheriff’ or “police” printed in large letters. The front door was oрen, and the occupants could see the officers approaching. The officers opened the screen door. They did not kick or break anything. No one was injured. Nobody was in bed when the police entered. The officers were not intoxicated. They had their guns drаwn, but that alone is not sufficient to invalidate a search pursuant to a lawful warrant.
See State v. Berardinelli,
Reversed and remanded.
Notes
The state cannot shift the burden to the defendant simply by putting the evidence gleaned from a warrantless search into an affidavit in support of an application for a warrant.
In
State v. Carsey,
ORS 133.575(2) provides:
“The executing officer shall, before entering the premises [to be searched], give appropriate notice of the identity, authority and purpose of the officer * * * to the persоn in apparent control of the premises to be searched[.]”
Defendant Phillips did not address the issue in his brief. Defendants Richard Arnold, Sr., .and Richard Arnold, Jr., did not file briefs.
Hamilton did not testify that the police anticipated that this particular search might be dangerous or that the occuрants might destroy evidence or attempt to
*265
escape if the officers stopped to knock. Accordingly, the officers executing the warrant were required to comply with ORS 133.575(2).
State v. Ford,
The constitutional “knock and announce” rule is intended to “protect persons who might be injured by violent resistance to unannounced entries and to protect the householder’s right to privacy.”
State v. Schultz, supra,
State v. Ford, supra,
provides no guidance, because the Supreme Court held that the officers reasonably apprehended peril and were therefore excused from complying with ORS 133.575(2).