STATE OF OREGON, Rеspondent, v. DEBORAH ANNE COLE, Appellant.
(83-1360-C; CA A33431)
Court of Appeals of Oregon
Submitted on record and briefs May 22, 1985, affirmed April 9, 1986
reconsideration denied May 23, 1986
717 P.2d 221 | 78 Or. App. 450
petition for review allowed July 29, 1986 (301 Or 445)
Dave Frohnmayer, Attorney General, James E. Mountain, Jr., Solicitor General, and Jeff Bennett, Assistant Attorney General, Salem, filed the brief for respondent.
Before Buttler, Presiding Judge, and Warren and Rossman, Judges.
Buttler, P. J., dissenting.
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 controvеrt and motion to suppress evidence seized under a warrant. We affirm.
On August 16, 1983, the Josephine County Sheriff‘s 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, аlong 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 bаsed upon the police reports in this case and upon my own personal information;
“That Alan Pendergrass, Sergeant on the Josephine County Sheriff‘s 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.
regulation 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 hоme, 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 wеre 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 phоtographed 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.”
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
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. Dеfendant‘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.
BUTTLER, P. J., dissenting.
The majority would require that we accept the findings of the trial court under Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968), regardless of the sufficiency of the evidence to support them. Here, the boilerplate portion of the affidavit stated that Sgt. Pendergrass had “observed growing marijuana plants” during an aerial surveillance. The question is whether that statement is true. Because the evidence does not support its truthfulness, I dissent.
At the hearing on defendant‘s motion to controvert, Pendergrass’ testimony, so far аs it is relevant to his observation of growing marijuana, is:
“Q. Did you fill out a report afterwards to the effect that you had probable cause to believe that marijuana was being cultivated?
“A. Yes, I did.
“Q. Did you give that to I guess it would be Mr. Looney, Sergeant Looney, thereafter for him to use in drafting his affidavit?
“A. Yes, I did.
“Q. Did the two of you discuss any of the factors involvеd in why you had probable cause to believe there was marijuana?
“A. I believe I told him that — basically described the place to him, showed the photographs to him, and gave him the map that the cartographers, the aerial photographs, the surveyor‘s map obtained from the Clerk‘s office.
“Q. Did you give him any other informаtion regarding your flight over the Cole‘s residence?
“A. Just the fact that the location that it was in a greenhouse.
“* * * * *
“Q. You don‘t recall when you talked to Sergeant Looney, how long after the flight it was?
“A. I talked to Detective Looney after the flight procedure, after we have the photographs developed. On develoрing those photographs we then plot them on the maps that we have and then we turn that over to him. * * *
“* * * * *
“Q. To try and keep things brief, in your observation that determines that you have probable cause to believe that marijuana is being cultivated, what are the factors that you look at to make that determination?
“A. Basically configuration, color and —
“Q. What do you mean by configuration?
“A. Just the type, the outline type of thing. It‘s not something you can see leaves or anything specific, but you‘re looking at the terrain, you can differentiate the colors, you can differentiate tall trees from smaller plants, the combination of that plus the experience of seeing yourself the ability to observe the marijuana.
“Q. In this case there were — there was a greenhouse type structure, I believe is a structure that appears to be a greenhouse the way it is phrased in the affidavit. Could you see directly into that, or was there a cover over that, do you recall?
“A. My recollection, there was a cover, a plastic, appeаred to be a plastic cover over that.
“Q. Could you make out any individual plants inside that plastic cover?
“A. I don‘t believe I could. Color, configuration and size.”
On that evidence, the trial court found that the “aerial identification of growing marijuana plants was achieved.” The majority states that the record supports that finding.1 It then concludes that the trial court could “conclude that there was probable cause to believe that marijuana was growing in the greenhouse,” 78 Or App at 455, which is not the issue.
In my opinion, Pendergrass’ quoted testimony, even when considered with the photographs admitted in evidence, cannot support the finding that identificаtion of growing marijuana plants was achieved. To the contrary, and to his credit, Pendergrass never stated that he had identified growing marijuana plants.2 He was explaining, generally, how he could identify marijuana from the air, not that he did so in this case. That is consistent with his conclusory statement in his official report that he had probable cause to believe that marijuanа was being cultivated on defendant‘s property. Defendant called Pendergrass as a witness. After the quoted testimony was given, the state did not pursue the witness’ testimony concerning his identification of the marijuana plants. Rather, it pursued other reasons why Pendergrass may have had probable cause to believe that marijuana was growing on defendant‘s property. It may be that, by considering
The problem arises here because Looney, the affiant, used a preprinted form that contained the statement that ”Alan Pendergrass *** reported to me *** that *** he observed growing marijuana plants.” There was no other appropriate blank space in the form to set forth some other bases for Pendergrass’ belief that he had probable cause to conclude that marijuana was growing on defendant‘s property. Aсcordingly, at the hearing on the motion to controvert, the only way in which the court could deny the motion was to find that the statement in question was true, not that Pendergrass may have had other reasons to support his report that he had probable cause. The record may support the latter but it does not support the fоrmer.
Ball v. Gladden, supra, does not require that we accept blindly a trial court finding that is not supported by sufficient evidence. In my opinion, no reasonable trier of fact could find, on this record, that “aerial identification of growing marijuana plants was achieved.”
Because the statement that Pendergrass “observed growing marijuana plants” is not accurate, it must be deleted from the affidavit. After that statement has been deleted, we are left with a report of an aerial identification of a greenhouse by a police officer trained in identifying growing marijuana. That information is insufficient, as a matter of law, to conclude that there is probable cause to believe marijuana is growing inside. I would hold, therefore, that the affidavit was insufficient to support the warrant authorizing the search of defendant‘s property and that the trial court erred in denying defendant‘s motion to suppress the evidence seized.
Accordingly, I dissent.
Notes
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 рreferred 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.
As the majority points out, the court also 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.”
The majority states that that finding is supported by the record. Although I find it unnecessary to decide that question, I note that Looney tеstified that he equated the statement in Pendergrass’ official report that “I have probable cause to believe marijuana growing” with “I observed growing marijuana.” Taking that at face value, it may be questionable whether the statement (preprinted) in the affidavit was made in reckless disregard for its truthfulness.
“The defendants hаve 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.