State v. Buffington

743 P.2d 738, 87 Or. App. 559, 1987 Ore. App. LEXIS 4704

• Court: Court of Appeals of Oregon
• Decided: October 7, 1987
• Docket: 86-1739-C-3; CA A42931
• Status: Published

Opinions

JOSEPH, C. J.

Defendant appeals her conviction for possession of a controlled substance. ORS 475.992(1). She contends that the trial court erred in denying her motion to suppress evidence seized pursuant to a search warrant. The issue is whether the affidavit for the search warrant was sufficient. The material parts of the affidavit, made on May 30, 1986, by an Ashland police detective, are set out in the margin.¹

Defendant contends that the affidavit does not establish probable cause for issuance of the warrant.² The state concedes, and we agree, that the information from an informant given to another officer that defendant had been frequenting Ashland Hills Inn and had a reputation there for dealing in cocaine is entitled to no weight, because there is no information about the informant’s basis of knowledge about defendant’s reputation. ORS 133.545(4);³ see Spinelli v. United States, 393 US 410, 414-15, 89 S Ct 584, 21 L Ed 2d 637 (1969); State v. Christen/Hankins, 79 Or App 774, 781, 720 P2d 1303 (1986). She argues that information supplied by the affiant’s two confidential reliable informants also lacks facts about their basis of knowledge and that the information is stale. She also asserts that the magistrate drew impermissible inferences from information provided by police officers and recited in the affidavit. The state argues that, read in a common sense and realistic manner, the affidavit gave the magistrate probable cause to believe that defendant was in possession of cocaine in her residence. Whether a particular affidavit supports the magistrate’s determination of probable cause does not depend on the existence of specific facts or information. Each affidavit must be examined in a common sense, realistic and nontechnical manner. State v. Villagran, 294 Or 404, 408, 657 P2d 1223 (1983); State v. Mellinger, 52 Or App 21, 25, 627 P2d 897 (1981).

The affidavit was made on May 30, 1986. It recites, after the information that the state concedes cannot be considered, that an FBI agent told the affiant 16 months earlier that “a key suspect” in a narcotics investigation had telephoned defendant’s number from a motel in the same town. Even if it would be reasonable to infer that the suspect actually talked to defendant, without more information there is no basis for any reasonable inference of what the conversation was about. The recitation that another telephone call by that suspect had been made to a business, the owner of which was arrested almost a year later in possession of cocaine in another place, says absolutely nothing about defendant. The inference that, because a suspect made two telephone calls, one of which was to a person who later was found in possession of contraband, there was something illicit about a telephone call to defendant is overdrawn and tenuous and is not reasonable. The same can be said about the discovery in the execution of another search warrant on other premises that defendant was “an associate of its occupants”: it says nothing about the conduct of defendant. Neither of those parts of the affidavit is entitled to any weight.

Most of the rest of the information in the affidavit is hearsay based on the statements of informants who may well satisfy the reliability aspect of the test for judging the propriety of issuing a warrant on the basis of information furnished by unidentified informants. They are said to base their information on first-hand knowledge, but nothing in the affidavit explains the quality or source of that information. The statements lack any detail that would permit an inference that they were based on actual observations, rather than on hearsay or speculation. Had the informants known anything specific, such as having seen defendant selling cocaine, having bought some from her or having sold some to her, it is reasonable to infer that they would have said so. They did not, so far as the affidavit discloses.

Under State v. Hall, 79 Or App 597, 720 P2d 376, rev den 301 Or 765 (1986), it is impermissible to issue a warrant on the basis of informants’ statements which are purely “con-clusory and do[es] not explain how [the informant] reached that conclusion.” 79 Or App at 604. There is no difference between the informants’ “personal knowledge” in Hall and the informants’ “first-hand knowledge” in this case. In Hall, we refused to give the information the benefit of an inference that it was information directly obtained, and we cannot make the inference here in the absence of any factual support for it. Moreover, the information furnished by the informants was more than a month old when the affidavit was made. There was nothing available to the magistrate to close the one month gap, and the information was too stale to offer support for a warrant.

On the basis of an unusually large amount of traffic centered on defendant’s residence and the brief duration of each visitor’s stay, two of her neighbors formed a suspicion that defendant “was selling drugs on a continuous basis.” The police determined who were the owners of about 15 of 30 or so of the automobiles and found that four of them had at some unstated time been arrested on narcotics charges and that a fifth was then under investigation for narcotics activity. Two days before the affidavit was made, the neighbors had told the affiant that the amount of traffic had recently increased. Given that the number of cars over a period of 14 days was about 30 and that about a quarter of the owners of those had been found to have some history of involvement with narcotics, there was some basis for an inference about the illicit activity at the house, but the presumed innocence of the people checked and found to have no narcotics background or arrested and not convicted weighs against an inference unfavorable to defendant. Under State v. Urbach, 83 Or App 39, 730 P2d 571 (1986), and in the absence of any evidence that an unusually large number of people entering and quickly leaving a residence is in itself an indication of drug trafficking, the magistrate was not entitled to draw an inference against defendant that would amount to probable cause sufficient to support the issuance of a search warrant.

We hold that the affidavit did not support the issuance of a search warrant. The fruits of the search under the warrant should have been suppressed.

Reversed and remanded for a new trial.

¹

“That on October 3,1984, Officer Randy Snow of the Ashland Police Department told me that according to a confidential and reliable informant, a Suzie Buffington was frequenting Ashland Hills Inn where she had a reputation of dealing cocaine. Officer Snow advised me that his informant had proven to be a reliable person in that said informant has given him information which has led to at least two arrests.

“That on February 6,1985, Special Agent Larry Gorman of the FBI told me that he has been investigating a major west coast cocaine trafficking organization. That a key suspect in that organization had recently stayed at Ashland Hills Inn. Special Agent Gorman further informed me that he was able to obtain the local phone tolls that said suspect made while staying at Ashland Hills Inn. That among the phone numbers that said suspect called was 482-5151. That I checked telephone records at that time and found that said number is to a Suzie Buffington of 901 Glendale Street in Ashland. Another phone number which was called by said suspect was that of an Ashland business known as Plastics Fantastics. That a subsequent investigation into the owner of that business, one Robert Paul Smith, has led to Mr. Smith’s arrest on a charge of possession of cocaine after approximately one ounce of cocaine was seized from his residence on January 23,1986.

“That on May 29,1986,1 checked the newest phone directory and found that 482-5151 is still in the name of Suzie Buffington at 901 Glendale Street, Ashland.

“That on February 14,1985,1 assisted in serving a search warrant at 600 Cove Road, Ashland. That during the course of serving that warrant I discovered cocaine paraphernalia containing cocaine residue. That a document in the residence identified Suzie Buffington as an associate of its occupants.

“That earlier this year I spoke with a confidential and reliable informant who told me that he/she had first-hand knowledge that Suzie Buffington, who lives on Glendale Street, is and has been continuously involved in the sale of cocaine for some time. That this same informant has proven to be reliable in that he/she has given me information which has led to at least one arrest and a narcotics seizure.

“That on April 26,1986, another confidential and reliable informant told me that he/she also had first-hand knowledge that Suzie Buffington is selling cocaine and has a reputation in the Ashland community as a well-known cocaine dealer. That this informant has also proven to be reliable in that he/she has given me information which has led to at least 5 arrests and several narcotics seizures over the past year.

“That on May 14,1986,1 was contacted by a Walt Demourdant and his wife. That the Demourdants live across the street from 901 Glendale Street. They informed me that they suspected the woman at 901 Glendale Street was selling drugs on a continuous basis. They based this belief on the fact that there has been a tremendous amount of traffic in and out of that residence. That people will frequently stay for only a few minutes. The Demourdants agreed to keep track of these visitors and over the past 2 weeks they have provided me with over 30 different license plates of people visiting 901 Glendale Street. That I have checked the criminal records of approximately half of the registered owners of those vehicles and found that 4 of them have criminal records showing prior arrests on narcotics charges and another is currently under investigation by the Ashland Police Department for cocaine trafficking. That on the evening of May 28, 1986, the Demourdants informed me that the amount of traffic to 901 Glendale has been increasing even more over the past few days.

“That on May 29,1986,1 checked with the Ashland Department of Utilities and confirmed that the utilities at 901 Glendale Street are still in the name of Suzie Buffington.

* * * *

“That based upon the above and foregoing, I hereby pray for a warrant to search that certain property located at 901 Glendale Street, in the City of Ashland, County of Jackson, State of Oregon, further described as a green and white duplex on Glendale Street near the intersection of Siskiyou Blvd., having the numbers ‘901’ conspicuously displayed to the right of the front door, the residence of a Suzie Buffington, for the controlled substance cocaine, along with the items associated with its sale, packaging, and use, such as paperfolds or ‘bindles’, scales, sifters, ‘toot straws’, vials, sales ledgers, and IOU’s, and items identifying co-conspirators in the trafficking of cocaine such as phone tolls and address books, and an order to seize same if found.”

2 Defendant relies only on Article I, section 9, of the Oregon Constitution and not on the Fourth Amendment. Accordingly, we will not review her claim under the federal “totality of the circumstances” test in Illinois v. Gates, 462 US 213, 103 S Ct 2317, 76 L Ed 2d 527 (1983).

3 ORS 133.545(4) provides:

“The application shall consist of a proposed warrant in conformance with ORS 133.565 and shall be supported by one or more affidavits particularly setting forth the facts and circumstances tending to show that the objects of the search are in the places, or in the possession of the individuals, to be searched. If an affidavit is based in whole or in part on hearsay, the affidavit shall set forth facts bearing on any unnamed informant’s reliability and shall disclose, as far as possible, the means by which the information was obtained.”