State v. Davis

809 P.2d 125, 106 Or. App. 546, 1991 Ore. App. LEXIS 551
CourtCourt of Appeals of Oregon
DecidedApril 10, 1991
DocketJ88-3030; CA A62666
StatusPublished
Cited by14 cases

This text of 809 P.2d 125 (State v. Davis) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Davis, 809 P.2d 125, 106 Or. App. 546, 1991 Ore. App. LEXIS 551 (Or. Ct. App. 1991).

Opinions

[548]*548EDMONDS, J.

Defendant appeals his conviction for possession of a controlled substance. ORS 475.992(4). He assigns error to the denial of his motion to suppress evidence seized pursuant to a search warrant. We reverse.

Officer Brown had a house at 1877 S.E. Main Street under surveillance and sought a search warrant to search it. In his affidavit in support of the warrant, he mistakenly identified the house number as 1837 S.E. Main Street.1 The warrant described the premises to be searched as:

“A green single story house located at 1837 SE Main Street, Roseburg, Oregon, inclusive of any persons or vehicles located thereon.”

The warrant did not refer to the affidavit or any attachments and it gave authority to search to “any police officer of Douglas County.” Brown executed the warrant by searching the house at 1877 S.E. Main Street.

Defendant argues that the warrant authorized a search for a house different than the one searched and, therefore, the search of the house at 1877 S.E. Main Street was unauthorized. See ORS 133.585.2 The state argues that the erroneous address in the search warrant did not render the description of the premises constitutionally defective, because the officer who executed the warrant was also the affiant on [549]*549whose affidavit the warrant was based, and he had personal knowledge of the premises for which he sought authorization to search. It relies on State v. Blackburn/Barber, 266 Or 28, 511 P2d 381 (1973), and State v. Cole, 84 Or App 497, 734 P2d 393 (1987).

In State v. Blackburn/Barber, supra, a search warrant described the premises to be searched as “apartment 2 in the basement” of a specified residence, “said apartment having the letters ECURB on the door.” The affiant who had obtained the warrant was also in charge of executing it. He had obtained his information from an informant who had previously visited the premises and had observed marijuana there. When the warrant was executed, the executing officer observed the number 2 on Blackburn’s room, and that room was searched. The police also searched an unnumbered basement apartment that had the letters “ECURB” on its door. The court said:

“When the officers possessed a warrant which authorized the search of Apartment 2 which had ECURB on the door and there was no such apartment, but there were an Apartment 2 and an unnumbered apartment with ECURB on the door, they could not execute the warrant if real doubt existed as to which was intended. We hold there could be no real doubt as to which of the premises was intended by the warrant and that it could be ascertained with reasonable certainty. No one could have made a mistake or been confused about a word like ECURB, but anyone could easily have made a mistake about a numeral. ECURB was a significant and more unmistakable guide than a mere number.
<<* * * * *
“There was no authority to search any part of the premises except the apartment with ECURB on the door. As a result, the evidence against Blackburn which was seized in his Apartment 2 was properly quashed by the trial court * * 266 Or at 35.

In State v. Cole, supra, a detective obtained a warrant to search premises described as “1560 S.W. Avery Lane, Corvallis.” The warrant was based on an affidavit requesting a warrant to search “1560 S.W. Allen Lane, Corvallis.” The warrant was executed at 1560 S.W. Allen Street. We said:

“In this case, the * * * warrant not only gave an address, it also described the house to be searched. Thomig [the affiant [550]*550and the executing officer] was familiar with the house. Evidence at the suppression hearing showed that there was little if any likelihood that the house could be confused with neighboring property or that the officers would enter property that they had no authority to enter. We conclude that, with the description of the house, the warrant was sufficiently definite to satisfy the requirements of ORS 133.565(2)(b) and Article I, section 9. See State v. Blackburn/Barber, supra. * * *.” 84 Or App at 501.

In State v. Ingram, 104 Or App 389, 802 P2d 656 (1990), we held, under ORS 133.565(2)(b),3 that, if a warrant describes a general category of persons such as “occupants,” the warrant is sufficient if there is probable cause in the affidavit to search all occupants. Conversely, if the person to be searched is described with particularity in the affidavit, the warrant must contain a similar description to comply with the particularity requirements of ORS 133.565(2)(b) and Article I, section 9. In Ingram, the defect in the warrants was not that the executing officer could not tell from the face of the warrant whom he was to search. Rather, the question was whether the description on the face of each warrant was so general that it authorized the search of individuals for whom no probable cause to search existed.

Likewise, in this case, the problem is not that the description on the face of the warrant is so ambiguous that the officer could not determine what premises were authorized to be searched. The warrant specifically describes the address to be searched as 1837 S.E. Main Street. However, unlike in Ingram, this case does not present the issue of whether the warrant meets the particularity requirements of ORS 133.565(2)(b) and Article I, section 9. Rather, the issue is whether there was authority to search premises other than those described in the warrant, when the officer had personal knowledge of the premises that were intended to be searched.

In State v. Devine, 307 Or 341, 768 P2d 913 (1989), [551]*551the court rejected arguments that the “good faith” or “reasonableness” of the officers in searching an apartment were material to the inquiry. The search warrant authorized the search of a dwelling with the number “442” located on it. When the officers who were executing the warrant arrived at the residence, they discovered an apartment located in a garage behind the house. The garage apartment and the house were not attached. The apartment had the number “442 1/2” over the door. The officers searched the apartment and seized controlled substances. The court said:

“The arguments of the parties to the Court of Appeals and to this court have turned on factual questions such as whether the police officers executing the warrant saw or should have seen the numbers ‘442 1/2’ above the door of the separate living area. From the answer to this and similar questions, the parties then argue the merits of an ‘objective’ versus a ‘subjective’ test of the reasonableness of the officers’ actions under Article I, section 9, of the Oregon Constitution.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Breedwell
522 P.3d 876 (Court of Appeals of Oregon, 2022)
State v. Mansor
381 P.3d 930 (Washington County Circuit Court, Oregon, 2016)
State v. Trax
39 P.3d 887 (Court of Appeals of Oregon, 2002)
State v. Bush
25 P.3d 368 (Court of Appeals of Oregon, 2001)
State v. KADIN
18 P.3d 484 (Court of Appeals of Oregon, 2001)
State v. Martin/Dills
12 P.3d 548 (Court of Appeals of Oregon, 2000)
State v. Edwards
945 P.2d 553 (Court of Appeals of Oregon, 1997)
State v. Burton
855 P.2d 1124 (Court of Appeals of Oregon, 1993)
State v. Johnson
851 P.2d 1160 (Court of Appeals of Oregon, 1993)
State v. Brown
820 P.2d 878 (Court of Appeals of Oregon, 1991)
State v. Gomez
813 P.2d 567 (Court of Appeals of Oregon, 1991)
State v. Davis
809 P.2d 125 (Court of Appeals of Oregon, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
809 P.2d 125, 106 Or. App. 546, 1991 Ore. App. LEXIS 551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-davis-orctapp-1991.