In this сriminal case, the trial court denied defendant’s motion to suppress evidence seized pursuant to a search warrant and convicted him of possession of a controlled substance. In determining whether the trial judge prоperly denied defendant’s motion to suppress, we must address the underlying issue of whether a judge, in reviewing an affidavit supporting an application for a search warrant, may consider the opinion of a polygraph exаminer to establish the reliability of information supplied by an unnamed informant.
This case began when police sought a warrant to search defendant’s apartment for cocaine. In support of an application for a search warrant, Officer Claxton submitted an affidavit which stated, in part:
“On June 5, 1987 a Confidential Informant, hereafter referred to as a Cl, advised me of the following: In the past 72 hours the Cl was in the apartment of Sean Jordon [sic] Coffey. Coffey’s apartment is located at 433 NW 6th St. #3, Corvallis, Benton County, Oregon.
“Cl observed Coffey in possession of a plastic bag that appeared to contain Cocaine. Others in the apartment referred to the Cocaine as ‘girl’ a street word for Cocaine. I checked with Pacific Power and Light and they confirmed that a Sean Coffey was listed in their records as the person responsible for the power bill at 433 NW 6th St., #3, Corvallis, Oregon. I also checked with Pacific Northwest Bell. I was advised by them that a Sean Coffey had a listed phone number of 758-7557. Their records also indicate that Coffey has an address of 433 NW 6th St., #3, Corvallis, Oregon.
“I was advised by Detective Larry McCloskey, Benton County Sheriff’s Offiсe, that he would administer a polygraph on the CL The polygraph exam showed the Cl to be truthful regarding his statement about seeing the Cocaine.
“Cl is not under investigation for a crime. Cl admits being able to recognize Cocaine because Cl admits to having used Cocaine in the past.
“Cl estimates that the bag of Cocaine contained approximately one ounce on [sic] Cocaine. Cl also adivsed [sic] that he observed smaller plastic bаgs containing approximately 1 gram of Cocaine. In my experience Cocaine is frequently sold to users in amounts of 1 gram.”
A judge issued a warrant. Pursuant to the warrant, *345 police searched defendant’s apartment and seized one ounce of cocаine. In denying defendant’s pretrial motion to suppress the seized evidence, the trial court concluded that the judge who issued the warrant properly considered “the fact that the informant passed the polygraph.” In the triаl court’s view, this “fact” helped to establish the reliability of the unnamed informant.
The Court of Appeals agreed.
State v. Coffey,
As a preliminary matter, we address an issue raised by defendant in the courts below. Defendant contended that the failure of the affidavit to set forth the qualifications of the polygraph examiner was fatal to consideration of the polygraph examiner’s opinion. The affidavit discloses merely that the named examiner was a detective in the Benton County Sheriffs Office. The Court of Appeals concluded that the warrant-issuing judge reasonably could infer that, in light of ORS 703.050 and 703.990, 2 detective McCloskey was not in violation of the law and, consequently, the examiner was licensed under ORS 703.050. ORS chapter 703 sets forth the qualifications necessary to conduct polygraph examinations in this state. ORS 703.990 states that conducting a polygraph examination without a license constitutes a Class A misde *346 meanor. We agree with the Court of Appeals that a commonsense view of the affidavit permits the inference that the examiner was licensed and, thereby, sufficiently qualified.
ORS 133.545(4),
3
which addresses the application for a search warrant, includes the requirement thаt the application be supported by an affidavit which “shall set forth facts bearing on any unnamed informant’s reliability.” This statute codifies standards set forth in
Aguilar v. Texas,
Here, the affidavit sets forth that “[t]he polygraph exam showed the [informant] to be truthful regarding his statement about seeing the Cocaine.” We first address the question of whether the opinion of the polygraph examiner is a “fact” bearing on the unnamed informant’s reliability; that is, we must decide whether the polygraph examiner’s opinion as set forth in the affidavit shows the informant to be credible or his or her information to be reliable.
See State v. Alvarez,
The polygraph examiner’s interpretation of the data produced by the polygraph is one quantum of information (or “fact”) that “bears on” the unnamed informant’s reliability. A polygraph examiner’s opinion as to deception or lack thereof will tend to show the informant’s information to be unreliable or reliable. In this case, the informant reported seeing cocaine in defendant’s apartment; the polygraph examiner’s opinion supports a conclusion that the informant sрoke without deception upon conveying this information. The opinion of the polygraph examiner is thus a fact bearing on the reliability *347 of the informant’s information and is, accordingly, a fact bearing on his or her reliability within the mеaning of ORS 133.545(4). 5
Having determined that the polygraph examiner’s opinion as to deception is one fact bearing on the reliability of the unnamed informant’s information, we next discuss whether all the facts presented in the affidavit — including thе polygraph examiner’s opinion — establish the requisite probable cause for issuance of a search warrant.
See State v. Dunavant,
This case is a sequel to, as well as a divergence from,
State v. Brown,
In contrast, the analysis of
Brown
and
Lyon
is not relevant in a judge’s determination of whether to issue a search warrant. Information to be considered in issuing a warrant need not be admissible under the rules applicable tо trial evidence: Rather, the inquiry under ORS 133.545(4) is whether the information is a fact bearing on the credibility of the unnamed informant or the reliability of his or her information.
See Spinelli v. United States, supra,
Recognizing that “[t]he nature оf the [search warrant application] proceedings makes application of the rules of evidence inappropriate and impracticable,” Commentary to Evidence Code section 101 (emphasis supplied), the legislature specifically chose not to apply the restrictions of the Oregon Evidence Code to issuance of search warrants. OEC 101 (4) (f). Further, ORS 133.545(4) does not entail the weighing required by OEC 403. Thus, in proceedings to which the Oregon Evidence Code is not applicable, different considerations are relevant and a different analysis is required. See Snow v. OSP, supra (polygraph results admissible in Department of Corrections disciplinary proceedings if prisoner consents).
Defendant also аrgued that the affidavit contained items of information that were “inaccurate and untruthful and not presented in good faith by the affiant.”
See
ORS 133.693. Defendant gave testimony contrary to information supplied by the unnamed informant presented in thе affidavit. But as the Court of Appeals correctly observed, defendant
*349
may contest only the good faith, accuracy, and truthfulness of the
affiant
— and
not
that of the
informant. State v. Hitt,
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is affirmed.
Notes
The Court of Appeals previously had addressed this issue in
State v. Fink,
ORS 703.050 provides:
“No person, including persons employed by а state agency or public body in this state, may engage in conducting polygraph examinations, refer to that person as a polygraph examiner or offer or advertise services as a polygraph examiner unless that person is licensed under ORS 703.010 and 703.030 to 703.320 as a polygraph examiner.”
ORS 703.990 provides:
“Violation of any provision of ORS 703.010 and 703.030 to 703.320 or of any rule adopted thereunder is a Class A misdemeanor.”
ORS 133.545(4) provides, in part:
“* * * If an affidavit is based in whole or in part on hearsay, thе affiant shall set forth facts bearing on any unnamed informant’s reliability and shall disclose, as far as possible, the means by which the information was obtained.”
The standards set forth in
Aguilar v. Texas,
Although the statute provides that the affidavit must set forth facts bearing on the
informant’s
reliability, our prior analysis in
State v. Alvarez,
The unnamed informant’s statement that he had used cocaine in the past was a “declaration against penal interest.” As we pointed out in
State v. Alvarez, supra,
and
State v. Carlile,
Were the polygraph examiner’s opinion (or any of the other facts listed) the
sole
fact bearing on reliability, the affidavit would not be sufficient to support a determination of probable cause. The insufficiency of the polygraph examiner’s opinion is due to doubts about the validity and potential rate of errоr of the polygraph.
See State v. Brown,
Upon motion for reconsideration in the trial court, defendant did challenge the good faith of Officer Claxton (the affiant) by introducing evidence that Claxton was aware of the informant’s criminal recоrd upon filing the affidavit. The informant apparently had been charged with or convicted of assault in the fourth degree and with hindering prosecution.
The trial court, however, properly could have concluded, under ORS 133.693(3), that this evidence did not establish a lack of good faith by a preponderance of the evidence.