State v. Marquardt

Dec 10, 1979
24540, CA 14367
Reporters:
, ,
Before:
Thornton
*517 THORNTON, J.

Defendant appeals his conviction of possession of a ntrolled substance (ORS 475.992(4)) and assigns as ror the denial of his motion to suppress the fruits of ‍‌‌‌​​​‌‌​‌​‌‌​​‌‌​‌​‌‌​​​‌​‌​‌​​​‌‌​​‌​‌​​​‌‌​‌‌​‌‌​​‌‌​‌​​‌‌‌​​​​​​‌​‌‌​​​​‌‌‌‌​​​​​‌‌‌​​‌​​​‌‌‍search of his house on the ground that the affidavit rming the basis for the issuance of the warrant Lowed on its face that the information contained in e affidavit was stale. The warrant was sought and sued on February 3, 1979. The allegations of the ■fidavit came largely from personal observations ‍‌‌‌​​​‌‌​‌​‌‌​​‌‌​‌​‌‌​​​‌​‌​‌​​​‌‌​​‌​‌​​​‌‌​‌‌​‌‌​​‌‌​‌​​‌‌‌​​​​​​‌​‌‌​​​​‌‌‌‌​​​​​‌‌‌​​‌​​​‌‌‍ade at the same house on the alleged date of “Februy 03, 1978. ”

Relying on the rule that probable cause must be termined from the “four corners” of the affidavit, the information properly before the magistrate, fendant contends the information was stale as a atter of law and the warrant invalid. This argument without ‍‌‌‌​​​‌‌​‌​‌‌​​‌‌​‌​‌‌​​​‌​‌​‌​​​‌‌​​‌​‌​​​‌‌​‌‌​‌‌​​‌‌​‌​​‌‌‌​​​​​​‌​‌‌​​​​‌‌‌‌​​​​​‌‌‌​​‌​​​‌‌‍merit. It hardly seems likely that the af-tnt would wait exactly one year from the date he tained his information and then seek a warrant at p.m. Based on this circumstance, the magistrate, if noticed the error at all, could properly conclude that was a clerical error and that the date referred ‍‌‌‌​​​‌‌​‌​‌‌​​‌‌​‌​‌‌​​​‌​‌​‌​​​‌‌​​‌​‌​​​‌‌​‌‌​‌‌​​‌‌​‌​​‌‌‌​​​​​​‌​‌‌​​​​‌‌‌‌​​​​​‌‌‌​​‌​​​‌‌‍to was bruary 3, 1979. There is no contention that the ‘idavit was otherwise insufficient to establish probable cause. The error was a result of the haste of minal investigation and to treat it in any other inner is to apply a hypertechnical standard of review disapproved by the United States Supreme ‍‌‌‌​​​‌‌​‌​‌‌​​‌‌​‌​‌‌​​​‌​‌​‌​​​‌‌​​‌​‌​​​‌‌​‌‌​‌‌​​‌‌​‌​​‌‌‌​​​​​​‌​‌‌​​​​‌‌‌‌​​​​​‌‌‌​​‌​​​‌‌‍Court. United States v. Ventresca, 380 US 102, 108, 85 S Ct 741, 13 L Ed 2d 684 (1965). See also State v. Diaz, 29 Or App 523, 528, n 3, 564 P2d 1066 (1977).

Affirmed.