*1 appeal; Argued April remanded on affirmed on reversed and and submitted 27, 1995 cross-appeal September OREGON, STATE OF - Cross-Respondent, Appellant JEFFREY M. WHEELON ZOOK, and LINDA J. - Respondents Cross-Appellants.
(CR 92-465(A) A81165) (B);& CA
Richard Barton & him on the brief was With cross-appellants. Associates. Leeson, and Landau Presiding Judge, Riggs,
Before Judges.
LANDAU, J. dissenting.
Leeson, J.,
64-b
LANDAU, J. The state appeals an order suppressing evidence obtained a pursuant search warrant. Defendants “cross- appeal,”1 challenging of the sufficiency affidavit in sup port warrant, of the as well as the constitutionality of the manner in which the warrant was executed. We reverse on and affirm on appeal cross-appeal. issue in this principal case is the of sufficiency
the affidavit of an Oregon Officer, Police who, after his describing experience training narcotics investiga- tions, recited the following information that he had received from two citizen informants: 1,
“Citizen Informant hereafter referred to as Cl contacted me and advised that in the past Cl 1 has assisted in growing marijuana and knows what growing mari- juana looks like in the stages growth. different Cl 1 also advised me that Cl 1 knows what growing marijuana smells like and the pungent odor it emits. Cl 1 also stated that Cl 1 knows what looks like and smells like in the dried form. Cl 1 also advised that Cl 1 has smoked dried marijuana in the and knows its past effects and what it smells like in its burning form. (5)
“Cl 1 told me that within the days, last five Cl 1 entered the property occupied by at [defendants] [defen- dants’ address]. Cl 1 described the property as being approx- one imately quarter of a mile north of Yamhill County Road NW The buildings curtilage Olson. on the consist of a main two-story wooden frame dwelling, green approximately 30' x barn, pole 50' building. another smaller 1Cl advised that while green pole building, outside the 1Cl could hear a humming noise. Cl 1 said the humming was louder upon entering green pole building sliding via a door. Cl 1 said Cl 1 observed on the pole building floor of the bags potting soil and fertilizer. Cl 1 said that 1Cl observed a ladder right located to the of the sliding extending door to a up trap green door in the loft area of the pole building. Cl 1 said that upon climbing entering the ladder and through [the] loft cross-appeal appropriate only responding party argues 1 A is if the for a reversal 63, 502 Ray, 529, 533, Artman v. judgment. of the 501 P2d P2d 1376 arguments sustaining We understand defendant’s to be directed at the trial court’s rejected. properly grounds order on trial court Those matters are more error, cross-assignments regard them raised as and we as such this case. ORAP 5.57. *5 66 strong marijuana. a odor of Cl 1 said door Cl 1 smelled
trap area, in loft area a walled-off about plywood Cl 1 observed the entrance, x and at least 15', with a door observed single 10' 1 were 5' tall. Cl marijuana plants approximately which 25 the loft wiring running electrical on the floor of said Cl 1 saw material on the floor. Cl 1 also reflecting and some foil area running box-type fan in the walled-off large 1 a said Cl saw area. 2, hereafter referred to as Cl
“Citizen Informant that in the Cl 2 has seen past me and advised contacted 2 2 also advised me that Cl marijuana past. in the Cl growing marijuana and dried looks and growing, drying, knows what 2 that Cl has smoked dried like. 2 also advised smells Cl effects and what it smells in and knows its past the burning form. like in its (3) 2 days, three Cl the last 2 told me that within
“Cl at by [defendants] [defen- occupied the property entered dants’ being approx- as property Cl 2 described the address]. County Road of Yamhill one-eighth of a mile north imately curtilage buildings on the 2 told me that the NW Olson. Cl dwelling, large a two-story frame main wooden consist of a sheds, barn, coup. and a chicken goat two metal horse green 2 green building, the Cl while outside 2 me that Cl advised hornet’s nest. Cl large the hum of a like heard what sounded sound, 2Cl the of the investigating source 2 me told 2 Cl said through sliding a door. barn entered the horse ground the noise on the the source of identify 2 Cl could above. Cl coming from to be louder floor, it appeared but Cl ceiling above door trap 2 observed a that Cl said trap entry through gained that Cl head. Cl said 2’s humming area, 2 noted that the where Cl entering a loft door a coming plywood from behind be appeared louder and was wall in the marijuana strong odor of 2 noted a 2 said Cl loft area. Cl 2 looked into 2 said that Cl Cl in the loft area. 20 four to at least wall and observed plywood area behind down from the hanging upside marijuana plants tall fivefoot 2 also noted 2 said that Cl Cl horse barn. of the ceiling buds, 2 to 3" out with were budded marijuana plants in the large operation fan was a humming noise room.” walled-off he had affidavit in the also stated affiant described He property. to defendants’ entrance to the gone him told two informants that the driveway
the location mile to defendants’ for 1/4 approximately extended 1/8 The affiant also described the mail box and a news- house. paper driveway. box located at the roadside near defendants’ county He confirmed from the tax assessor’s officethe size of property defendants’ and that it contains three taxable build- storage. ings dwelling, pole : a a barn and an old house used for county office, from the The affiant determined assessor’s Department Electric and the of Motor Portland General property Vehicles that defendants reside on the described the informants. magistrate warrant affidavit,
Based on the issued a property buildings. to search defendants’ premises and, with the assistance of officers searched (Guard), Oregon National Guard several members of *6 away plants than and related hauled paraphernalia. more charged multiple Defendants were with delivery possession manufacture, counts of and of a con- with of child substance, 475.992, trolled ORS and two counts neglect. ORS 163.547. arguing that, controvert, moved to
Defendants among things, gives impression affidavit the false other premises that the citizen informants viewed defendants’ two they actually premises at times, at different when viewed the suppress all evi- the same time. Defendants also moved to According defendants, dence from the search. obtained (1) probable cause; the affidavit is insufficient to establish (2) the citizen informants were uncon- the observations of agents they acting as of the state stitutional, because were property trespassed defendants’ defendants’ to view and (3) premises; it unconstitutional, because the search was members of the state militia. the use of involved questioned infor- the officer and the trial court The findings: following camera, and then made the in mants of testimony in camera has taken The Court “7. ** * officer], unnamed informants. and of the two [affiant enter the case did not in this The informants “8. agent, case encouragement of the behest or at the property of therefore, acting agents as were, not officer] [affiant law enforcement. * * * observe affidavit did in the informants [T]he “9. affidavit, not in the but related incriminating matters key The each other. apart from or independently separately,
informants key incriminating saw evidence described by the affiant in the affidavit they at same times and while together property. were on the “10. Court The further finds the affidavit incor- rectly reads if the of the incriminating as observations evi- by dence each informant were made separately, inde- other; from as if pendently apart each there were differ- * * * ** ent time for their separate frames observations *. gives light This a false in affidavit appearance factual of independent observations that cross-corroborate each other. This in the could be wording by affidavit motivated either an inaccurately intent demonstrate independent cross- corroboration or a belief revelation the fact that of could acting informants independently compromise were not anonymity. their persons
“11. The Court finds that were who members Oregon National in the participated of Guard execution at as property part of the search warrant the defendants’ the Yamhill Team. The County Interagency Narcotics Gov- Oregon has authorized the Oregon ernor the State Team, cooperate National Guard to with Narcotics but personnel the actions the Guard this case particular authorized the Governor. The Court specifically were the Guard was done finds that the here of under participation of a authorized agent the direct law enforcement supervision execute search warrants. reasonable knew, “12. affiant or in the exercise of known, key illegal observations of that the care should have made in each other’s activity by the informants were made original.) place (Emphasis at same and time.” presence *7 con- following The reached the trial court then clusions: light false controverted the
“1. defendants have suggests separate, that firmly that inference in the affidavit observa- other informant from each independent apart and evidence, and that incriminating key the tions were made of the disrupted misleading draftsmanship omissions and these drawing process. magistrate’s inference issuing give to affidavit was drafted Having that the “2. found cross-corrob- independent informant appearance an oration, none, concludes the Court there was in fact when the placed affiant this inference the creation of that objectively and was not fight in a false information informant reasonable in at the to affiant known light of facts issuing the affidavit to the the submission of time of magistrate.” had
The trial court then ruled defendants proven, by preponderance evidence, of the that the affidavit facts that led to an inaccurate infer- contained omissions of key incriminating the informants observed ence separately, independently apart each from It that the inaccurate inferences were material other. and held therefore, there was no reason to defer to the that, probable issuing magistrate’s ruled decision on cause. It also law, a matter of that, as showing contain evidence independent
“the affidavit must incriminating evidence key observations of separate informants, or contain sufficient corrobora- by the two related, reliability in order to establish the tion of the facts the informants.” removing after
The trial court reexamined the affidavit marijuana inference that the informants had viewed the false independent and at different times. It con- of one another showing adequate an cluded that the affidavit lacked accordingly, veracity it to that, failed establish informant probable Consequently, granted motion cause. it defendants’ suppress. challenge appeal, the trial the state does not On challenge findings court’s Nor does it court’s of fact. sole motion to controvert. The state’s decision on defendants’ argument any ignoring infer- after inaccurate is even might there affidavit, from the otherwise-be drawn ences veracity adequate showing of the infor- of the remains an probable accordingly, cause. and, mants the information to determine whether We review a neutral and detached sufficient to allow the affidavit was probable magistrate cause there was to conclude growing in their that defendants were believe 133.555(2); Harp, P2d 548 1, 9, 697 299 Or v. State barn. ORS App (1985); Poppe, 905, rev 20, P2d v. State support a An affidavit is sufficient Or 492 den 320 reasonably magistrate conclude could if the warrant search and that are true in the affidavit recited that the facts to be probably location found will be to be seized items Villagran, P2d 404, 408, 657 Or searched. *8 70 Poppe,
(1983); 131 Or at 14. When an affidavit App is based on informants, the supplied by affidavit must dem- onstrate the basis for the informants’ knowledge and must include facts that establish the informants’ ORS veracity. Carlile, v. State 133.545(4); 161, 164, 290 Or P2d 619 1280 (1980). case, In this the basis for the informants’ is knowledge observation, direct and defendants concede that is suffi- The cient. focus of the this case is dispute whether the affidavit satisfies the the veracity requirement be informants established. refers to “veracity” of informant the extent reliable, is,
to which the information
is
“trust
supplied
Alvarez,
v.
State
143,
on a
occasion.”
308 Or
worthy
specific
147,
P2d
Veracity
776
1283
be established in
may
by
informant,
another
ways, including
several
corroboration
Jones,
rev den 294
State v.
277, 282,
869,
Or
648 P2d
58 App
Wilson,
State v.
(1982);
police,
Or 295
corroboration
rev den 317 Or
910,
120
P2d
382,388,852
(1993);
Or
584
App
himself
herself to
for
liability
filing
the informant
or
exposing
Montigue,
359, 367,
605 P2d
a false
report,
cert den 656,
(1980);
by making
US
or
statements
interests, Alvarez,
Or at 149.
one’s
against
penal
police by
is
citi
provided
When information
connection with the crime being
zens who
to have no
appear
is needed
establish
lesser
degree
proof
a
investigated,
Prince,
decision in State v.
In that
our
their veracity.
regard,
den
respects in in in case, to those Prince. The affidavit this as by Prince, contains information more than one unnamed appear Prince, in it informant. As does on the face of any way affidavit that the in informants were connected with they they observed, the crime that or that were criminals or “criminally they subject Thus, involved.”2 in Prince, as are to demanding showing veracity. a less of growing marijuana, The informants reported they they that observed property, buildings described the location of defendants’ property on the and that it was defendants who lived there. And, Prince, as in the sufficient information was corrobo- only by by police. rated not informant, other but also argue Defendants that the facts of this case are distinguishable from in because, Prince, Prince the affidavit affirmatively criminally stated that the informants were not According involved. to defendants, without similar affirma statement, tive in the informants this case cannot be consid argument, ered disinterested citizen informants. That however, is not consistent with our standard of review. The question is whether the in the affidavit would permit magistrate a neutral detached to conclude is, example, of criminal There for no evidence that either the informants had a had, any say record The affidavit does that both informants at some sort. past, time in their smoked and that one of the informants had undisclosed ” marijuana. say We do not read Prince to growing an “assisted in the because marijuana, past grown he or she informant had at some time in his or her smoked or supplying purposes be a disinterested citizen for informa cannot ever considered Indeed, “criminally involved.” tion and is forever branded “criminal” or Prince, with that he was familiar and could one of the three informants testified appear identify marijuana. did not We nevertheless concluded that the informants criminally App at 111. be criminals or involved. 93 Or were not or criminals or other- participants
the informants
The fact that the information in the
wise
involved.
criminally
other
inferences does not
reasonably
affidavit
rise
may
give
Donahue,
the affidavit is insufficient. State v.
mean that
rev den
We conclude that is reliability required of showing the lesser subject citizens is disinterested supplied by when information is standard, the affidavit more lenient that, in the of that light sufficient. of cross-assignments remain defendants’
There establish the affidavit fails to error. Defendants argue evidence would be that seizable cause to believe probable First, they argue two reasons. their for property, found at infor- of the reliability the fails to establish the affidavit above, reject we discussed the reasons mants. For argument. fails, affidavit the
Second, argue defendants informants by supplied based on it is because illegally and who of the police were agents actually who defendants, According defendants’ property. on trespassed their property to trespass were induced informants the trial The a reward. of and promises encouragement been had not informants the found that however, court, of the record review inducement, and our such prompted — — in camera hearing the sealed of transcript the including findings. Ehly, support evidence to those reveals P2d 66, 74-75, Or argue that the execution of the war Defendants also participated in unconstitutional, because the Guard rant was direct, the formal, it written authorization from without argues that the use of the Guard was The state Governor. although properly that, The trial court found authorized. use of the Guard in this had not authorized the Governor cooperate particular with case, she had ordered the Guard to County Interagency Team. The trial Narcotics Yamhill participated case, in this the Guard court further found supervision police. of the state Defendant under the direct findings. challenge question, therefore, The is those does general whether the Governor’s more authorization suffices. 399.065(2) provides: ORS may
“The order into active service of the state Governor period, for such to such extent and such manner as the may necessary deem units or individuals of Governor organized judgment militia when in the the Governor are required services of such units or individuals for maintenance, discipline or organization, furtherance of training organized militia or for ceremonial functions government.” of the state broadly no
We the statute is worded and contains note that express requirement written formal, for the issuance is directed to take. To order for each action the Guard contrary, to order the Guard the Governor is authorized period, and such manner” as act “for such to such extent 399.075(1) appropriate. ORS Id.; deems see also Governor governor). (allowing upon “approval” use of militia properly in this case was authorized. of the Guard use granting the trial court erred We conclude that suppress. *11 to defendants’ motion appeal; on affirmed and remanded
Reversed cross-appeal. dissenting.
LEESON, J., My disagreement first trial I affirm the court. would degree of majority lesser that the is its conclusion with the veracity proof regarding in that we allowed State informant 74
Prince, 93 Or
rev den
In we could infer infor- reasonably mants, affiant, were or who were known not criminals were who were involved criminally they persons to the disinterested “wholly providing citizen[s] State v. 404, 411, Villagran, at their request.” (1983).1 P2d 1307 A of the affidavit this case reveals reading careful were the informants not disinterested citizens. both had smoked marijuana states that informants affidavit had act, an and that one assisted growing in the past, illegal act. The affidavit further states marijuana, illegal another being Although with three informants admitted one of the familiar itself, illegal. having marijuana growing, seen is
75 two informants went onto defendants’ that the property, unnamed barn, and the interior of defendants’
entered second-story alleged grow loft to observe the climbed the operation. explain not whether infor- The affidavit does the property permis- were on defendants’ with or without mants Further, the affidavit is silent about whether the sion. history, they a were informants have criminal whether charged against in with the crimes involved defendants, or connected why the their affiant withheld identities magistrate. put the facts this case stark con- from These allowing majority by errs the lesser trast to Prince. veracity degree proof regarding than informant we allowed in Prince. disagree majority’s
I also with the contention by the in this case was corroborated the affiant. information App only Or at 72. The affiant’s corroboration consisted 137 property, describing going to the entrance defendants’ driveway that the told him the location the two informants approximately for mile to defendants’ extended 1/8 1/4 describing newspaper box house and the mail box and a driveway.2 at the He con- located roadside near defendants’ county firmed from the tax assessor’s officethe size of defen- buildings property and that it contains three taxable dants’ county office, from and he determined assessor’s company, Department and the of Motor Vehicles that electric by property infor- defendants resided on the described helped to establish None of that mants. reliability reports regarding their of the informants grow property. operation The affi- defendants’ on buildings verify were as described ant did power provided con- about no information informants consistently appellate sumption. Oregon courts have by way provide required of corroboration an affiant to more provided Milks/Sales, 127 v. in this case. See State than was (insufficient (1994) App corrobora- P2d 988 397, 402, Or only name, address the defendant’s where officerverified tion telephone apartment that name existed; verified and that account; confirmed defendant on PGE bill matched name newspaper box or the did to the mail box not refer Because informants considered corrobora items cannot be report, of these the affiant’s observation their facts. of those tion
had been arrested that afternoon; and the informant had
lie).
Compare
State v.
motive to
Coffey,
342,
347, (1990)
P2d 424
(reliability established
officer
confirmation
of name and
defendant;
address of the
informant’s descrip
tion of
of cocaine and
packaging
name;
its
slang
positive
Binner,
results);
test
polygraph
639, 648,
128 Or App
(1994) (officer
den
rev
877 P2d
The trial court should be affirmed and we should not reach defendants’ cross-appeal.