*1 29, 1990, Argued August January and submitted In resubmitted Banc reversed and 10, 1991 April remanded for new trial OREGON, STATE OF Respondent, DAVIS, FRED HAROLD Appellant.
(J88-3030; A62666) CA appellant. argued Roseburg, the cause Lee, F. Charles Roseburg. Lee, Ltd., Parsons & the brief him on With *2 Attorney Denney, General, Salem, Assistant Thomas H. respondent. were argued him on the brief With for the cause Attorney Virginia Frohnmayer, Linder, General, L. Dave General, Salem. Solicitor
EDMONDS, J. dissenting.
Warren, J.,
EDMONDS, J. appeals
Dеfendant his of a possession conviction 475.992(4). controlled substance. ORS He assigns error suppress of his pursuant denial motion to evidence seized to a search warrant. We reverse.
Officer had a Brown house at 1877 S.E. Main Street sought surveillance and under search warrant to it. In search in support his affidavit he mistakenly identi- the house fied 1837 S.E. Street.1 Main The warrant described the to be searched as: Street, green single story “A house 1837 SE located at Main Roseburg, Oregon, any persons inclusive of or vehicles located thereon.”
The warrant did not refer to the or any attachments gave “any police search to Doug- officer of County.” las Brown executed the searching 1877 S.E. Main Street. argues
Defendant authorized a search for a house different than the one searched there- fore, the search of the house at 1877 S.E. Main *3 Street unauthorized. See ORS 133.585.2 state argues the erroneous address in the search did warrant not render the description of the premises constitutionally defective, because the officer who executed the warrant also the on was affiant 1Although the refers to affidavit the same mistaken address as it the description a more contains detailed of the house: single story green “a house located on East the North corner of SE and Main carport/garage large gravel Street. It attached Marsters has an and a dirt and
parking
Kading
park
area on the
where
West side
and her visitors
their vehicles.”
dеscription
physical
the
of the house in
affidavit does not match the
features
denying
suppress,
In
the house
1837 S.E. Main Street.
the
court
motion
the trial
State,
App
(1983),
on Mercer v.
Or
relied
language
63
2 provides, part: ORS 133.585 in scope by “The be of search shall such as is authorized and is reasonably things necessary persons specified to discover the or therein.” based, personal and he had the warrant was whose sought for which he authorization premises Blackburn/Barber, 266 Or 28, 511 on State v. It search. relies Cole, (1973), and P2d (1987). supra, v.
In State a search warrant 2 in “apartment searched as to be premises describеd the residence, having apartment “said specified of a basement” had affiant who on the door.” The letters ECURB it. He charge was also obtained the warrant had from an informant who obtained his information had marijuana and had observed visited the previously executed, officer warrant was there. When the room, and room on Blackburn’s observed the base- аlso searched an unnumbered was searched. letters on its door. apartment ment that had the “ECURB” The court said: possessed a
“When the officers warrant which authorized Apartment had on the the search of 2 which ECURB door apartment, Apartment 2 there was no such but there were an door, apartment with on and an unnumbered ECURB they if not execute real doubt existеd as to could real which was intended. We hold there could be no doubt as to which intended of the certainty. could be ascertained with reasonable No one a like could have made a mistake or been confused about word ECURB, anyone easily have made a a but could mistake about significant numeral. ECURB a and more unmistakable guide than mere number. * *
<<* * * any part “There was no to search result, As except apartment with ECURB on the door. against Apart- the evidence Blackburn which was seized his * * quashed by properly the trial court ment was supra, In obtained a warrant detective Avery Lane, Cor- described as “1560 S.W. *4 requesting vallis.” The warrant was on an affidavit based Lane, Allen Corvallis.” search “1560 S.W. executed at S.W. Allen Streеt. We said: warrant was * * * address, case, gave “In not this Thomig also be searched. affiant described house to [the familiar and the with the house. Evi- officer] suppression dence at the hearing showed that there was little any if likelihood that the house could be neigh- confused with boring property or that the property officers would enter they authority had that, no to еnter. We conclude house, description of the sufficiently the warrant was definite satisfy requirements 133.565(2)(b) of ORS and Article * * I, See supra. section 9. *.” 84
In State v. Ingram,
104 Or App
Likewise, case, in this problem is not that description on the face of is so ambiguous that the officer could not determine what were authorized to be searched. The warrant specifically describes the address to be searched as 1837 S.E. Main However, Street. unlike in Ingram, this case does present not the issue of whether the warrant meets the particularity requirements of ORS 133.565(2)(b) I, Rather, Article section 9. the issue is there other than those described in the when the personal officer had that were intended to be searched.
In State v. (1989), 133.565(2) provides, part: ORS state, particularity: “The warrant shall or describе with * * * “(b) designation places the location and of or be searched.” *5 the faith” or “reason- rejected arguments “good the court mate- an were searching apartment of the officers in ableness” the search inquiry. search authorized rial to the The the “442” located on it. When dwelling a the number of with arrived at the resi- were officers who garage in a apartment located dence, they discovered house were and the garage apartment the house. behind the “442 over apartment had not attached. 1/2” con- apartment the and seized the door. The officers searched The court said: trolled substances. parties Appeals arguments of to the Court of and
“The the questions on such as whethеr to this court have turned factual or have police the officers the warrant saw should separate ‘442 the door of the seen the numbers above 1/2’ questions, to the living From the answer this similar area. ‘subjec- ‘objective’ versus a parties argue then the merits of an officers’ actions under tive’ of reasonableness of the test the I, 9, Oregon Constitution. We think both Article section the point. miss sides the ‘good nothing
“The officer’s faith’ or ‘reasonableness’ had quarters inquiry. living really to If the defendant’s do with the ‘separate’ i.e., really maintaining if a were defendant — separate space, subject only to household in the the home- separate right emergencies enter in those owner’s to —then by This is were not covered the seаrch warrant. supra. clear lesson of cases like ‡ ‡ ‡ only entry in into
“The warrant this case authorized Centennial, fully in premises at 442 W. a house described other, entry into purport It did not to authorize some warrant. separately premises, inside the house or maintained justification elsewhere. Absent some other than the warrant (and present any in there is no basis record other separate premises justification), search of would have been improper.” 345. Devine is lesson Blackburn/Barber authority of an officer to search under search in wholly by circumscribed the war requirement to discretion
rant. The warrant is intended take by out of hands of the that determinations requiring magistrate. neutral, cause be made detached Pеller, See (1979). If n P2d 684 an officer would have accept argument, we were state’s on the basis of his knowledge, even those were though accurately not described in either the affidavit or Supreme the warrant. As the Court did we reject suggestion the executing officer’s or good faith reasonableness has do anything inquiry. gone If the officer had to the address described warrant, he would have discovered the error in the and could have returned the magistrate to obtain a different independent The officer’s warrant. knowledge cannot cure an description. erroneous says:
The dissent *6 the contents only “I hold the knowledge would that officer’s of the is relevant to whether the affidavit was of affidavit required to have been attaсhed to the warrant. uphold warrant, “I would the search under the because the particular on its although latently face it was an ambiguous inaccuracy, affidavit, because of the the con- officer, executing provided tents of which were known to the objective establishing judge information which the for probable App (Emphasis origi- found cause.” 106 Or at 556. nal.) by looking description dissent reaches its result at the affidavit,
the although acknowledges that there is no evi- dence in record the to show that the affidavit attached to the at the of Moreover, time execution. because the “any warrant was directed to Douglas officer County,” there was no assurance be that affiant would officer. The knowledge оfficer’s of the contents of is analysis irrelevant. The dissent’s would allow meant search, officer to search the rather he than restricting scope the search to the which a magistrate neutral found search. cause to says particular
The dissent also the warrant was face, on its “although latently it was of an ambiguous because at 556. In inaccuracy.” App supra, the court said:
“If, however, a
search
purporting
to authorize a
sufficiently ambiguous
impossible
identify
that it is
with a
degree
certainty
particular reasonable
author-
searched,
any
may
ized to be
not be
executed
* *
pursuant
illegal
search
to it is
We unauthorized, gave Main Street was because the warrant authority to search a house at 1837 S.E. Main Street. To that State v. an officer supra, suggests extent may a warrant on his rely place searched, it is trial be overruled. The court erred when it denied defendant’s motion to suppress.
Reversed and remanded for a new trial.4 WARREN, J., dissenting. majority frames the issue as “whether there is other than those described in the
warrant, when the personal knowledge officer has of the prem- ises that were intended to be searched.” 106 Or is, “No, The answer to that of course not” a perfunctory with I, citation to Constitution, Article section of the Oregon prohibits which general opin- warrants. That is the majority’s ion in a nutshell.
Now let us discuss real issue: Did the warrant describe the house that was searched? The warrant described *7 the house to be searched “green single story as a house located at SE description sufficiently 1837 Main Street.” That was particular; however, it was not one completely accurate: in the address was incorrect. It is unrealistic hypertechnical to hold that a warrant that does not describe place percent accurately, 100 does not it all. The test describe is whether
“ ‘the officer with a search warrant can with reasonable effort identity place description ascertain the of the intended.’ The sufficiently property must be recognizable clear so that the is v. to be searched neighboring properties.”
from
other
28, 35,
(Foot
Blackburn/Barber,
(1973).
266 Or
Allowing
an officer to consult the affidavit when
facially
proves ambiguous
is
valid but
inaccuracy
purposes
of an
because
consistent
statutory requirements.
Const,
constitutional and
See Or
Art
133.565(2)(b).
requirement
I, § 9; ORS
The warrant
takes
by
police,
requiring
out
discretion
of the hands of the
probable
neutral,
determinations of
cause be made
judge.
Pеller,
2,
261 n
598 P2d
detached
(1979).
requirement
that a
describe with
particularity
place
to be searched ensures that
actu-
ally
judge
probable
search the
for which the
found
way
supra,
logical
A
cause. State v.
judge relied. sufficient, however, It is not that the affidavit contain showing facts; that the additional there must also be some reasonably information was accessible to the 4.5(a) (2d LaFave, 209, § ed officers. See 2 Search and Seizure 1987). jurisdictions required that Some courts in other have be attached the warrant when it was executed. the affidavit supra; § LaFave, Annot, See see also 11 ALR3d (1967). case, record does not show whether the In this fatal, That is nоt how- affidavit was attached to the warrant. *9 affiant ever, officer was also the because the therefore, have aware of the contents can be assumed to been he had the affidavit showing affidavit without a of the he, which house knowledge him. It is not the officer’s with affiant, majority intended to search that is relevant. is not in of information that knowledge that an officer’s right I hold affidavit cannot be considered. would is relevant to the contents officer’s affidavit been attached to required the affidavit was to have the warrant. warrant, because the search under the uphold
I would and, although it was particular on its face affidavit, inaccuracy, latently ambiguous because of officer, pro- to the of whiсh were known contents house the establishing for which objective vided information contends that majority cause. The judge probable had found he “allow an officer to search analysis would search, restricting scope rather than meant magistrate a neutral found search to the for which My correct. at 552. That is not probable cause.” 106 to be able ought an officer in this kind of situation point is that to determine for which to examine the cause. found judge
I dissent. JJ., dissent.
Rossman,
join
in this
Riggs,
Deits
notes
4
case,
disposition
remaining
Because of our
we do not reach defendant’s
assignments of error.
inaccurate,
description
partially
was
Blackburn/Barber,
In
reasonably
that
the officers
could
but the Court determined
quotes
intended. The
thаt
place
majority
determine which
was
test,
applies
then never
it.1 The Court did not hold that the
but
they
officers had to
a new warrant when
discovered the
get
error,
majority urges
as the
now.
497,
App
State v.
84 Or
Like
(1987),
descrip-
P2d 393
involved an inaccurate warrant
described the house to be searched as 1560
tion.
Avery
S.W.
Lane. The affidavit described
S.W.
Lane,
police aсtually
searched 1560 S.W. Allen
Allen
to the extent
the case
agree
majority
Street. I
house
says
subjective knowledge
the officer’s
which
inadequate
description,
validate an
was intended can
However,
holding.
it is
I do not think that
is the
wrong.
because the
description
adequate,
case holds that
was
criteria,
could,
place
based on
ascertain the
objective
officers
so,
That was
because the warrant
App
intended. 84 Or
501.
detailed;
had no 1500 block and was
Avery
mostly industrial;
only
and Allen
one of two streets
Street
house
area with a house numbered 1560 and the other
correctly.
description.
not match the
The case was decided
did
majority
inapposite.
The cases on which the
relies are
389,
(1990),
Ingram,