BUTTLER, J.
Defendants in this consolidated appeal were jointly tried and convicted
for
criminal activity in drugs (possession of more than one ounce of marijuana). Defendant Age was sentenced to five years on probation and defendant Hicks was sentenced to four years on probation. They have raised three assignments of error on appeal, each of which is discussed below.
I. Denial of Motion to Suppress
Defendants contend that the affidavit filed in support of a search warrant did not describe the premises to be searched with sufficient particularity to establish probable cause to authorize the issuance of the warrant. Therefore, it is argued, evidence derived from the ensuing search should have been suppressed.
Defendants’ argument is based on the following portion of the affidavit executed by a police officer in support of the application for a warrant:
"* * * I learned the following information by talking to a confidential reliable citizen, a private citizen who resides at Klamath Falls, Klamath County, Oregon on May 26, 1977 and who advised me that on May 26,1977 she went to a residence on Biehn Street in Klamath County, Klamath Falls, Oregon and spoke with an individual named Alan Hicks, who from my own personal knowledge I know Alan Hicks to reside at 2307 Biehn Street. The citizen informed me that at the residence she requested to purchase marijuana from Alan Hicks. Hicks advised the citizen that he did not have any marijuana at the time, but to return at 5:30 on May 26, 1977 at which time she could make the purchase. * * *”
Defendants contend that the affidavit did not state that the informant actually went to Hicks’ residence at 2307 Biehn Street. While the contention is technically correct, such affidavits are to be tested in a commonsense, nontechnical manner,
State v. Ashkar,
24 Or App 447, 545 P2d 912 (1976), looking at both the facts it recites and the reasonable inferences that can be drawn from those facts.
State v. Thomas,
7 Or App 50,
489 P2d 962 (1971). A reasonable inference that can be drawn from the facts stated in the affidaidt is that the informant talked to Alan Hicks at his residence and was told to return to that residence, which was the same residence described by the officer in his affidavit. The trial court found, and we agree, that the facts and reasonable inferences drawn therefrom, taken together, advised the magistrate that the informant went to Hicks’s residence at the address stated, and that information, with the remaining facts set forth in the affidavit
constituted a sufficient showing of probable cause to support the search warrant. The motion to suppress was properly denied.
II. Denial of
In Camera
Examination of Unnamed Informant
At trial, defendants filed motions to controvert, supported by an affidavit designed to show a substantial basis under ORS 133.693 for questioning the good faith, truthfulness, or accuracy of the evidence pre
sented by the affiant for the search warrant. The trial judge found that defendants had not met their burden under ORS 133.693(3) and that the confidential informant existed and was reliable
as required by ORS 133.703(b).
The latter two determinations were based upon the testimony of Officer Simon and defendant Hicks. The trial judge complied fully with the statutory requirements. Defendants argue on appeal that denial of an
in camera
examination of the confidential
informant infringed upon their constitutional rights to due process and confrontation of witnesses. An
in camera
examination is not constitutionally required where the "informant’s role does not go beyond the preliminary state of providing facts which helped form the basis of probable cause” for the search warrant,
State v. Jessie,
17 Or App 368, 371-73, 521 P2d 1323
rev den
(1974). There is nothing in the record to suggest that an
in camera
hearing would have affected the result in this case. The judge must determine from the
affiant
that the informant exists and is reliable. ORS 133.703(b). In this case the existence of the informant was verified by defendant Hicks, who testified he asked the informant back to his house for a "date.” The trial judge expressly found that Hicks’ version was not believable, and that, in general, he was not a credible witness and that Officer Simon, the affiant, was credible, on the basis of which the judge found the informant was reliable.
Accordingly, the trial court did not err in denying defendants’ request for an
in camera
examination of the unnamed informant.
III. Constitutionality of Conditions of Probation
The defendants contend that several of the conditions of their respective probations, which are set forth in the margin,
are unconstitutional and thus invalid
under the principles announced in
State v. Martin,
282 Or 583, 580 P2d 536 (1978), and
State v. Fisher,
32 Or App 465, 574 P2d 354 (1978). Those cases hold that conditions of probation are invalid unless they are reasonably related to the offense for which the defendant was convicted or to the needs of an effective probation.
A. Polygraph Tests
A condition of each of the probations involved herein is that the defendant-probationer submit to "lie detector” (polygraph) tests at the request of his probation officer or the district attorney’s office, and that the results of any such tests be admissible in any probation revocation proceedings. While we have discussed such a condition in prior cases, we have not held squarely that requiring a probationer to submit to a polygraph test is valid. In
State v. Wilson, 17
Or App 375, 521 P2d 1317 (1974),
cert den
420 US 910 (1975), the question was presented, but we held that since the defendant had agreed to the polygraph stipulation, we would not reach the constitutional issue as to whether the condition was an unconstitutional infringement upon defendant’s Fifth Amendment right against self-incrimination. In
State v. Hovater,
37 Or App 557, 588 P2d 56 (1978), we rejected that contention, stating that the trial court may not simply accept the agreement of the parties as to the conditions of the probation. However, we held in
Hovater
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BUTTLER, J.
Defendants in this consolidated appeal were jointly tried and convicted
for
criminal activity in drugs (possession of more than one ounce of marijuana). Defendant Age was sentenced to five years on probation and defendant Hicks was sentenced to four years on probation. They have raised three assignments of error on appeal, each of which is discussed below.
I. Denial of Motion to Suppress
Defendants contend that the affidavit filed in support of a search warrant did not describe the premises to be searched with sufficient particularity to establish probable cause to authorize the issuance of the warrant. Therefore, it is argued, evidence derived from the ensuing search should have been suppressed.
Defendants’ argument is based on the following portion of the affidavit executed by a police officer in support of the application for a warrant:
"* * * I learned the following information by talking to a confidential reliable citizen, a private citizen who resides at Klamath Falls, Klamath County, Oregon on May 26, 1977 and who advised me that on May 26,1977 she went to a residence on Biehn Street in Klamath County, Klamath Falls, Oregon and spoke with an individual named Alan Hicks, who from my own personal knowledge I know Alan Hicks to reside at 2307 Biehn Street. The citizen informed me that at the residence she requested to purchase marijuana from Alan Hicks. Hicks advised the citizen that he did not have any marijuana at the time, but to return at 5:30 on May 26, 1977 at which time she could make the purchase. * * *”
Defendants contend that the affidavit did not state that the informant actually went to Hicks’ residence at 2307 Biehn Street. While the contention is technically correct, such affidavits are to be tested in a commonsense, nontechnical manner,
State v. Ashkar,
24 Or App 447, 545 P2d 912 (1976), looking at both the facts it recites and the reasonable inferences that can be drawn from those facts.
State v. Thomas,
7 Or App 50,
489 P2d 962 (1971). A reasonable inference that can be drawn from the facts stated in the affidaidt is that the informant talked to Alan Hicks at his residence and was told to return to that residence, which was the same residence described by the officer in his affidavit. The trial court found, and we agree, that the facts and reasonable inferences drawn therefrom, taken together, advised the magistrate that the informant went to Hicks’s residence at the address stated, and that information, with the remaining facts set forth in the affidavit
constituted a sufficient showing of probable cause to support the search warrant. The motion to suppress was properly denied.
II. Denial of
In Camera
Examination of Unnamed Informant
At trial, defendants filed motions to controvert, supported by an affidavit designed to show a substantial basis under ORS 133.693 for questioning the good faith, truthfulness, or accuracy of the evidence pre
sented by the affiant for the search warrant. The trial judge found that defendants had not met their burden under ORS 133.693(3) and that the confidential informant existed and was reliable
as required by ORS 133.703(b).
The latter two determinations were based upon the testimony of Officer Simon and defendant Hicks. The trial judge complied fully with the statutory requirements. Defendants argue on appeal that denial of an
in camera
examination of the confidential
informant infringed upon their constitutional rights to due process and confrontation of witnesses. An
in camera
examination is not constitutionally required where the "informant’s role does not go beyond the preliminary state of providing facts which helped form the basis of probable cause” for the search warrant,
State v. Jessie,
17 Or App 368, 371-73, 521 P2d 1323
rev den
(1974). There is nothing in the record to suggest that an
in camera
hearing would have affected the result in this case. The judge must determine from the
affiant
that the informant exists and is reliable. ORS 133.703(b). In this case the existence of the informant was verified by defendant Hicks, who testified he asked the informant back to his house for a "date.” The trial judge expressly found that Hicks’ version was not believable, and that, in general, he was not a credible witness and that Officer Simon, the affiant, was credible, on the basis of which the judge found the informant was reliable.
Accordingly, the trial court did not err in denying defendants’ request for an
in camera
examination of the unnamed informant.
III. Constitutionality of Conditions of Probation
The defendants contend that several of the conditions of their respective probations, which are set forth in the margin,
are unconstitutional and thus invalid
under the principles announced in
State v. Martin,
282 Or 583, 580 P2d 536 (1978), and
State v. Fisher,
32 Or App 465, 574 P2d 354 (1978). Those cases hold that conditions of probation are invalid unless they are reasonably related to the offense for which the defendant was convicted or to the needs of an effective probation.
A. Polygraph Tests
A condition of each of the probations involved herein is that the defendant-probationer submit to "lie detector” (polygraph) tests at the request of his probation officer or the district attorney’s office, and that the results of any such tests be admissible in any probation revocation proceedings. While we have discussed such a condition in prior cases, we have not held squarely that requiring a probationer to submit to a polygraph test is valid. In
State v. Wilson, 17
Or App 375, 521 P2d 1317 (1974),
cert den
420 US 910 (1975), the question was presented, but we held that since the defendant had agreed to the polygraph stipulation, we would not reach the constitutional issue as to whether the condition was an unconstitutional infringement upon defendant’s Fifth Amendment right against self-incrimination. In
State v. Hovater,
37 Or App 557, 588 P2d 56 (1978), we rejected that contention, stating that the trial court may not simply accept the agreement of the parties as to the conditions of the probation. However, we held in
Hovater
that there was no basis in the record to determine if periodic polygraph tests were reasonably necessary to accomplish the purposes of probation, and remanded the proceedings for the development of a factual basis for the condition.
The statutory foundation for the trial court’s determining conditions of probation is ORS 137.540,
subsection (l)(e) of which provides that the probationer shall "answer all reasonable inquiries of the probation officer.” Defendants do not contend that the statutorily authorized condition unconstitutionally infringes their rights against self-incrimination; indeed, without such a condition probation would be a chancy and probably ineffective alternative to incarceration. Since the probationer must answer all reasonable inquiries of the probation officer or risk revocation, we see no impermissible extension of that condition in requiring that the probationer submit to polygraph tests. The intrusion into the area of self-incrimination is no greater; its main function appears to be the added psychological factor that if the probationer fails to tell the truth, he will be detected. Such purpose would be in furtherance of a successful probation.
Accordingly, we hold that a condition requiring the probationer to submit to polygraph tests does not violate the defendants’ Fifth Amendment rights, and
that the condition may be imposed, in the discretion of the trial judge, with no more than a general finding of the court that it is reasonably necessary to accomplish the purpose of probation.
However, requiring the defendants to submit to a polygraph test at the request of the district attorney is not proper.
State v. Hovater, supra.
B. Warrantless Search
Our cases dealing with the probationer’s submitting to a warrantless search as a condition of probation, except for
State v. Culbertson,
29 Or App 363, 563 P2d 1224 (1977), have dealt with overbroad conditions which would permit "any peace officer,”
State v. Jones,
36 Or App 271, 584 P2d 349 (1978);
State v. Holm,
34 Or App 503, 579 P2d 860 (1978), a "police officer,”
State v. Fisher, supra,
or "the district attorney’s office,”
State v. Hovater, supra,
to conduct or authorize the search. In each of those cases, we held that the condition was overly broad with respect to who could conduct the warrantless search.
Hovater is
squarely on point with respect to permitting the District Attorney’s office to order or conduct the search, and we adhere to that holding.
There is, however, the requirement that the condition of probation be reasonably related to the offense for which the defendant was convicted or to the needs of an effective probation.
State v. Martin, supra; State v. Hovater, supra.
In
State v. Fisher, supra,
the defendant pled guilty to four counts of forgery in the first degree, and at the time of sentencing indicated that part of her problem was involvement with drugs. The trial court, in placing defendant on probation, imposed as a condition that the defendant consent to the search of her person, premises, or any vehicle she may be operating at any time "for the purpose of determining whether or not defendant has any drugs in her possession or any use of any drugs.” We upheld the imposition of that condition, except that portion permitting the search to be conducted by a police
officer. In
State v. Jones, supra,
we stated that in view of defendant’s criminal activity in drugs, there was nothing invidious in imposing a warrantless search provision as a condition to probation.
Lest
State v. Houater, supra,
be construed to require the trial court to make special findings which would justify imposing as a condition of probation that a defendant convicted of criminal activity in drugs, or other drug offense, submit to a search without a warrant, we now hold that such a condition is permissible with respect to drug offenses so long as it is under the direction and control of the probation officer.
Accordingly, we reverse and remand both cases for resentencing.