*1 493 Jаnuary 16, Argued March 1975 affirmed v. GREGORY OREGON, Appellant, STATE OF HUGHES, 74-1610) Respondent. (No. SCOTT P2d 818 *2 Morgan, Attorney M. M. Assistant Rhidian Gen- argned appellant. the canse for eral, "Withhim Salem, Attorney Johnson, General, on the brief were Lee General, W. Michael Gillette, Solicitor Salem. Deputy Kuhn, Defender, Salem,
J. Marvin Public argued respondent. on the the cause for With him Gary brief was D. Public Salem. Babcock, Defender, Judge, and Foley and Lee, Before Schwab, Chief Judges.
SCHWAB, C.J. activity After indicted for criminal drugs, suppress defendant moved to ORS 167.207, during pursuant evidence seized in his home search granted court a search warrant. The trial *3 pursuant appeals suppress. to motion to The state 138.060(3). affirm. ORS We application for the search war-
The affidavit purported It to rant was Hostick. executed Officer reports informants made him two citizen recite to suspicious observed in defend- about items had (1) suppress contendеd: to ant’s house. motion statements about inaccurate the affidavit contained Hostick; had told Officer what informants probable cause to failed to establish the affidavit hearing evidentiary held on the motion was search. An in- suppress. and the two citizen Hostick state- that one conceded The state formants testified. inaccurate, was the affidavit ment of fact in testimony informants the citizen uncontradicted After other inaсcuracies. were that there dicated simply an order court entered the trial suppress “granted.” stated the motion to There findings. were no findings presents
The absence of a threshold question, obliquely by the raised state. Defendant’s - suppress motion to contended the affidavit was in (a question) accurate factual and insufficient to es probable (a legal question). tablish Ordinarily cause upon such a it situation is incumbent trial courts tо findings: make “* * * [I]n suppress a case a motion to where example,
raises more than one contention—for al- legal ternative factual contentions, or alternative legal contentions, or con- alternative factual and persuaded grant tentions—and the trial court is grounds the motion on one or more of the then the trial court must state the basis of raised, de-
its
App
cision.”
Johns
State v.
16 Or
on/Imel,
560, 571,
Sup
(1974).
“It is submitted to the court that when the af- fidavit is read as whole the inaccuracies shown have no effect оn the cause set forth in the * * *” (Emphasis supplied.) established affidavit *4 interpret conceding We this to mean that the state was regarding the factual claims instead inaccuracies, and only standing legal question probable on the cause. only pre- is Under these circumstances there one issue findings sented, desirable, while are not App essential. at Or 572. Johnson/Imel, II preliminary question
Another what facts can is: passing probable-cause ques- be considered on the tion? We have the contents of the affidavit. There testimony transcript sup- also the taken the of the at pression hearing. heavily The brief relies on state’s summarizing suppression-hearing testimony, the init heading, pages four itsof brief under the “Statement “accepts brief states that he Facts.” Defendant’s Appellant’s [the state’s] statement of facts.” tack.
Counsel in the trial court took a different testimony during sup- the At conclusion the of the pression hearing, whether counsel the court asked agreed “enlarged testimony upon the that the which n not be considered information the affidavit” could determining probable caxise to whether there just responded: the “Yes, four search. Defense counsel agreed prosecutor also corners of the affidavit.” The “other than as to the not considered evidence could may not have been the statements show that some of entirely the affidavit.” accurate approach agree trial court of the with the
We approach disagree with the trial counsel, question parties appeal. here is whether The the on magistrate established before cause was ques this To decide who warrant. issued the search inquiry necessarily in to the tion limit we must magistrate, is, formation that was before sup testimony at сontents of the affidavit. pression affidavit to from the can detract testimony proves inaccuracies; but that it extent known information because the affidavit cannot add to *5 498
to
issuing
an
mag
affiant but not communicated to the
probable-cause
istrate cannot be the basis of a
de
Aguilar
termination.
v. Texas, 378 US
84
108,
S Ct
(1964);
12 L
1509,
Ed 2d 723
Dunavant,
State v.
250
(1968);
Sagner,
Or
App
P2d 1
570,
State v.
12 Or
Sup
(1973);
459,
Ill We thus turn to the contents of the affidavit in this case and the of evidence its inaccuracies. paragraphs
The first three of the affidavit re- years cite Officer Hostick’s 21 with the Oregon State Police. Most of this information does not remotely even tend to establish cause to be- lieve that a crime is committed at defendant’s only possibly part residence. The material states: “* * * my training I am also aware from experience of very dosage that a common unit form dangerous drugs pills is in and tablet form and dosage press to manufacture such unit a is neces- sary (both ingredients as well as cutting agents) as well as production mix, store and aid in the is also neces- sary. producing illegal drugs I am also aware commonly accomplished persons most when work- * * ing protected by gloves at it The affidavit continues: “4. That on this date was informed Eich- Myrtle ard Lee Krotzer, South Eoute, Box 275, Myrtle Oregon, pres- personally Crеek, that he ent in the residence located at Et. A, Box 3927 County, Oregon Florence, Lane *. Mr. Krot- zer further informed me that while he was in that large residence on March 7, 1974, he observed a press approximately high metal press 6' feet plates 2yy garage partly in diameter in the covered tarp. fur- Krotzer with a Mr. While very appeared subject who ther observed male surprised was also and who to see Mr. Krotzer eager Krotzer frоm the area of remove Mr. press possible.” as soon beginning suppression At the paragraph 4 of state last sentence conceded any Moreover, the affidavit was inference false. *6 might wrongdoing that be drawn from the reference garage in “covered the machine defendant’s tarp” negated by testimony tarp with that the a plastic. was clear
The affidavit continues: by informed
“5. That on this date was Jerrine Lane Florence, Street, Caroleе Dietz of 43 Oak County, personally Oregon, was also that she present this residence on described above she observed date and while in that residence press has in a which she of the residence Krotzer of above. She described as the same as Mr. she me at this same time entered also informed kitchen on and the residence observed gloves, by pair pantry rubber door a cabinet and in the equipment glass pantry numerous she observed [sic], as beekers which she described my jars glassware which and other glassware training most which describes commonly storage and manufacture used in the drugs. mixing dangerous She pow- containers of formed that she observed me description her which from dered materials proved material [sic] forms of consistant cutting manufacturing, would used for which preperation [sic] mixing dangerous their for product dosage informed units. She further pe- overpowering an had that the house itself me lay person unable she was which as a culiar odor to exper- anything [sic] identify as within here
ienee. She also observed in the residence a set of balance scales.” hearing
At the Officer Hostick testified that the kind of Mrs. Dietz had described to him commonly was not “most illegal drugs, contrary used” in the manufacture of his statement in the affidavit. The affidavit continues: by
“6. That I am further informed both of the people they above mentioned lease that resi- gar- dence to the individual Mr. saw in Krotzer age by and that informed been renting premises planning individual that he is very period to move out in a short of time.” At the Mrs. Dietz testified that defendant planning shortly; had not told her that he was to move that she had fact, never talked to defendant in her life. Mr. Krotzer testified that he had asked defendant premises days to vacate the in three and defendant had аgreed allegations that he would. as to state- Thus, paragraph ments made defendant to Mrs. Dietz, allegations of the affidavit was and as to false, para- statements made defendant to Mr. Krotzer, *7 graph misleading. 6 was at least allegations
The material
of the affidavit conclude:
“7. These two above named individuals also
hung formed me that blankets have been
house
to cover the windows.”
hearing
At the
the uncontradicted evidence was
premises
that
the
without
defendant hаd rented
many
drapes;
placed
that he had
blankets on two of the
windows
windows in the
and that several other
house;
Again,
the affidavit
is over-
remained uncovered.
attempting
create an un-
stated to the extent of
to
wrongdoing.
implication
warranted
of
251-
McManus,
238,
As we read State v.
267 Or
is: could the magis
The accurate statements of the affidavit fact here boil down this: There
(1) is a “metal 6' press approximately high diameter” defendant’s press plates 2y2 The affidavit garage. directly stating, without implies, that Ilostiek believes such a machine could Officer be used to into form. press illegal drugs pill There are and other
(2) beakers, “jars glassware” in defendant’s These items аre not kitchen/pantry. that in his described. Hostick states used to such is most commonly is manufacture this conceded illegal drugs, although at the to be an exaggeration. ‹ ORS provides procedures challenging “the 133.693 for good accuracy respect faith, and truthfulness of the affiant with presented
to the evidence cause for search establish (5) or seizure.” Subsection of that statute reads: applicable law, whether, “The under court shall determine requires any good inaccuracy, faith untruthfulness or lack suppression.” to the text of ORS Subsection was added amendment proposed the Criminal Revision Commission. 133.693 as Law Minutes, Judiciary Committee, 4-5, May 29, 1973. The House explained amendment, Representative Hampton, author of purpose the amendment was “** ** suppression †0 ciarify legal for standard * * * left to case law. was to be [because inaccuracies] any inaccuracy It avoid the contention would would Minutes, supra at 5. automatically invalidate warrant.” (1973), McManus, P2d de- State 267 Or 250- was v. 133.693(5) passed, but before it went into cided after ORS part that McManus of the effect. We nevertheless assume legislature contemplated guide “case would law” 133.693(5). application ORS *8 502 There “of
(3) are containers materials” powdered in items not defendant’s These are kitchen/pantry. that de- described. Hostick states rе- items furnished but not scription him, of these him are affidavit, leads to believe peated to manufacture “consistent” with materials used drugs. in kitchen, There rubber defendant’s are gloves and a set of characterized as peculiar, odors only location
balance scales in some other undisclosed the house. cause to facts not establish
These do is a that there machine search. All that is shown is un- glassware, and undescribed defendant’s garage, gloves and rubber materials” described “powdered is consistent This defendant’s kitchen/pantry. do it is with unlawful conduct. We lawful conduct as “ingredients” “glass- not think the statements add illegal drugs ware” to manufacture be are truisms. We would These statements thing. ingred- notice of the fact take judicial to willing if this even ients to manufacture are necessary affidavit. were not stated in the to the warrant requirement purpose rather than the pоlice, detached magistrate, enable a invade cause to there is probable to determine whether Tacker, v. home. State 241 a citizen’s privacy In 10 355 order P2d ALR3d 851, (1965). Or than this rather duty, to discharge for the magistrate an made already police, a decision rubber-stamp magistrate facts that enable the affidavit must state sus is a well-warranted determine there independently crime will found the place evidence of picion be searched. sought *9 thought—correctly,
Here Hostick we Officer hindsight—that know from a and machine, “powdered materials” such as had been described to drug manufacturing operation. him indicated a But repeat in officer did not even his affidavit descriptions previously he had received. Nor were alleged there sufficient facts in other the affidavit to permit magistrate independently a determine that probable there was cause to seаrch. Reduced to its simplest the affidavit states that Hos- terms, probable tick believes there is cause to search. This is insufficient.
Affirmed. dissenting.
LEE, J., majority This is a close case but I believe the has wrong part reached the in III conclusion the de- of cision. majority states that most of the first three “* * *
paragraphs of the affidavit ‹ do not even re- ‹ The affidavit stated: being duly I, Hostick, “1. on oath Chester M. first sworn depose say trooper Oregon and I am a State employed years and Police have been so for 21 and as such regularly gone Department schools within for training manufacturing distributing identification, and illegal dangerous drugs. of I into il- have come contact with Recently legal dangerous drugs many I on occastions ob- [sic]. illegal manufacturing laboratory drug served an which had and also chem- seized other officers on another raid been icals that were seized at the same time. my experience training police a and “2. In and officer my special identifying dangerous training in narcotics and illegal drug enforcement, I am familiar with identification manufacturing production illegal drugs as the and as well equipment manufacturing production. and in such training experience I am “3. That on that based producers illegal drugs frequently rented aware that use
motely tend to establish cause to believe my opin- In committed a crimе highly paragraphs do recite the those first three ion, training exper- pertinent factor of the officer’s very question—manufacture of ience in the area provides dangerous drugs. expertise This stay periods at those locations for short of time locations and stay any long period place of time and for because to produce drugs one any length greatly time for at one location discovery. am alsо aware increases dangerous the chance of their illegally manufactured can and have been non-laboratory settings produced and I am aware from previous other enforce- and from contact with law *10 past proved informants that ment and from reliable officers production dangerous drugs illegal manufacturing has and of Oregon. County, in Lane am also aware continued to occur my very dosage training from аnd that a common drugs pills dangerous in form and to unit form of is and tablet press dosage as unit a is as well manufacture necessary such ingredients (both drugs cutting as well as the production agents) glassware mix, and aid in the and store necessary. producing drugs is is also I am also aware commonly accomplished persons working at it are when most protected forth, drugs by gloves, masks, in and so since during manufacturing pure is form occurs or ‘dust’ which easily through аnd the skin. enhaled absorbed [sic] by Lee Krot- “4. That on this date I was informed Richard Myrtle Myrtle 275, Creek, Oregon, zer, Route, South Box personally present in the residence located at Rt. that he was 1, A, Florence, County, Oregon, is located Box 3927 Lane which County, Oregon. Florence, 7 miles South East of Lane Hilltop drive, located of of a house is on the South side % mile from Clear Lake residence is further described Road. Said garage orange trim, as with it has a double with brown composition white doors and has a roof. Mr. Krotzer further 7, informed in that residence on March me that while he was large press approximately high 6' he observed a metal press plates garage partly with in diameter in the covered 2%' tarp. garage with a in the Mr. Krotzer further observed While very subject appeared surprised a to see Mr. Krotzer male who eager and who was also to remove Mr. Krotzеr from the area press possible. of the as soon as by “5. That on this date I was informed Jerrine Carolee Street, Florence, County, Oregon, Dietz of 43 Oak Lane that the remaining for evaluation factor relevant highly disregarded. he and should not facts nncontroverted facts con- of the summary its In item “* finds that the majority cerning “press,” that stating, directly without implies, affidavit [t]he used could be a machine such Hostick believes More accuratе- form.” into pill illegal drugs to press present resi- personally described in above she was also she ob- in that residence date and that while dence on this press has garage she a which of the residence served in- She also Krotzer of above. as Mr. described as same residence entered the time she formed me that at this same by pantry door a on the cabinet in the kitchen and observed pantry gloves, num- pair she observed and in the of rubber [sic], equipment glass as described beekers which she erous training my experience jars glassware and in which and other commonly in the stor- most used describes which drugs. illegal dangerous mixing age and manufacture containers that she observed informed me She further description consistant powdered from her materials which proved used for which would be forms of material [sic] prep- dangerous cutting mixing manufacturing, dosage product units. She as eration for their [sic] pe- overpowering itself had an me that the house informed identify lay person unable to she was odor which as a culiar experience. anything She also observed here within [sic] scales. a set of the residence balance men- of the informed both above “6. That I am further they people the individual residence lease that tioned garage have been Krotzer saw Mr. plan- premises renting that he is the individual formed ning very period of time. out in a short to move me also informed named individuals “7. These two above hung the house and to cover have been *11 blankets the windows. my “Wherefore, upon and described facts the above based believe, training and experience cause and believe, and described residence do in the above premises curtilage is located evidence of such and within the proсessing manufacturing illegal and of the of the crime dangerous glassware press, drugs including, to a not limited but manufacturing dangerous drugs, ingredients as used in dangerous drugs this Court and therefore themselves well as respectfully requested be issued to search its warrant drugs.” illegal premises evidence and for such described above ly, paragraph the officer stated, three of the affi- press “necessary” davit, that a to manufacture pill paragraphs into form, and, four and five, that he was told two named informants that press premises. was seen on the defendant’s Obvious- ly, certainty, the officer could not state with under “* * * penalties perjury, machine press illegal drugs pill could be used to into form” when he had never seen it. (2) summary
In item of its of the facts, majority only “jars, mentions that there are beakers, glassware” and other kitchen/pantry in defendant’s whereas the affidavit stated that Mrs. Dietz had seen * * glass equipment numerous which she described jars as beekers [sic], other (Emphasis added.) Surely, quantity “glass equipment” coupled training with the officer’s and ex- perience probability increases the it was illegal legitimate purposes. used for rather than Regarding majority’s (3) summary item of the concerning “powdered my of the facts materials,” opinion it was not that Officer Hostick set “description” forth a of them. It was sufficient that training experience his led him to believe that they were “consistent” with materials used to manu- drugs. facture majority’s summary Item of the of the * “* * only
facts refers to odors characterized as * * *” peculiar that Mrs. Dietz smelled—whereas, it (as majority emphasized quoted should earlier “£* * * itself) from the affidavit She overpowering formed me that the house itself had an peculiar lay person odor which as a she was unable to identify anything [sic] within here
507 * ” * (Emphasis supplied.) It was not “odors” “* ** overpowering peculiar *.” odor but an swung pendulum believe that has far—I too hypercritical majority opinion of the affidavit the distinguishable on their are and relies on cases that majority ignores found facts. The admonition 85 S Ct Ventresca, 102, 108, v. United States US (1965), when court said: L 2d 741, 13 Ed “* * * teachings cases If the of the Court’s policy served, constitutional to be followed one such as the affidavits for search warrants, interpreted volvеd must tested and be here, magistrates and courts a commonsense normally They are drafted realistic fashion. nonlawyers in of a criminal the midst haste investigation. requirements elaborate Technical plead- specificity once under common law enacted * * *” ings proper place no in this area. (Emphasis supplied.) system justice responsive
It is vital that our rights community as well those to the individual. my suppress opinion
In the defendant’s motion pursuant should warrant, seized evidence, have been denied.
Accordingly, respectfully dissent.