State v. Dunning

724 P.2d 924, 81 Or. App. 296, 1986 Ore. App. LEXIS 3339
CourtCourt of Appeals of Oregon
DecidedSeptember 10, 1986
DocketC85-03-30821; CA A36715
StatusPublished
Cited by14 cases

This text of 724 P.2d 924 (State v. Dunning) 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. Dunning, 724 P.2d 924, 81 Or. App. 296, 1986 Ore. App. LEXIS 3339 (Or. Ct. App. 1986).

Opinions

[298]*298YOUNG, J.

Defendant seeks reversal of his conviction for the unlawful delivery of a controlled substance. ORS 475.992(1).1 He makes three challenges to the lawfulness of the search warrant. We affirm.

Defendant first argues that the trial court erred in denying his motion to controvert. ORS 133.693.2 The affidavit in support of the search warrant recites that most of the affiant’s information came from a named special agent of the U. S. Drug Enforcement Administration, who in turn received his information from a “confidential reliable informant.” The affiant also received information directly from two other unnamed informants. Defendant contends that it was error to deny his motion to controvert, because the state failed to establish the truthfulness, accuracy and good faith of the affiant or the agent in that the affiant and the agent “failed to give any information which would vouch for the truthfulness of the [confidential reliable] informants and * * * refuse[d to] reveal the names or any information about those informants.” That argument is without merit.

First, defendant has the burden of proving the affiant’s lack of truthfulness, accuracy and good faith. See ORS 133.693(3). In addition, a motion to controvert is directed solely at the good faith, accuracy and truthfulness of [299]*299the affiant and not at the underlying information supplied by the informant. See ORS 133.693(2); State v. Coatney, 44 Or App 13, 18, 604 P2d 1269, rev den 289 Or 107 (1980). Finally, defendant attempts, under cover of a motion to controvert, to argue that the trial court erred in refusing to require the state to reveal the informants’ identities. Because that issue is not properly raised by a motion to controvert, the trial court did not err in denying the motion.

Defendant’s second assignment is that it was error to deny defendant’s motion to require the state to disclose the identity of the informants or, alternatively, to dismiss. He contends that the informants’ names should have been revealed, because otherwise the hearing had a “Star Chamber quality” and the “entire event remains shrouded in mystery.” We disagree. The state may withhold a confidential reliable informant’s identity unless failure to disclose will infringe on the defendant’s constitutional rights. ORS 135.855(1)(b); OEC 510; State v. Waterbury, 50 Or App 115, 118, 622 P2d 330, rev den 290 Or 651 (1981). When production of the informant is essential to a fair determination of a defendant’s guilt, the privilege to withhold must give way. State v. Elliott, 276 Or 99, 102, 553 P2d 1058 (1976) (citing Roviaro v. United States, 353 US 53, 60-62, 77 S Ct 623, 1 L Ed 2d 639 (1957)). If, however, the question is not guilt or innocence, but rather the question of probable cause for an arrest or search, the state need not disclose the informant’s identity “unless the record reveals that there was inadequate proof of probable cause without the informant’s identity.” State v. Waterbury, supra, 50 Or App at 119. Defendant fails to explain, and the record does not reveal, how revelation of the informants’ identities bears on the existence of probable cause. The trial court did not err.

Finally, defendant argues that it was error to deny his motion to suppress, because the affidavit is insufficient on its face to establish probable cause. Specifically, he contends (1) that the affidavit does not show the unnamed informants’ veracity and basis of knowledge and (2) that the information in the affidavit was stale. We address those arguments in turn.

An affidavit which relies on an unnamed informant must meet a “two-pronged” test: (1) it must set forth the informant’s basis of knowledge; and (2) it must establish the informant’s veracity, by showing either (a) that the informant [300]*300is credible or (b) that the information is reliable. ORS 133.545(4);3 State v. Montigue, 288 Or 359, 362, 605 P2d 656 (1980); State v. Souders, 74 Or App 123, 128, 700 P2d 1050 (1985). Corroboration either by police investigation or by co-informants can establish an unnamed informant’s reliability. State v. Souders, supra, 74 Or App at 129. If a tip is sufficiently detailed, it can be inferred that the basis of the informant’s knowledge is personal information. See Spinelli v. United States, 393 US 410, 416, 89 S Ct 584, 21 L Ed 2d 637 (1969); State v. Delker, 26 Or App 497, 502, 552 P2d 1313, rev den 276 Or 387 (1976).

Defendant does not argue that the affidavit must meet the two-pronged test with respect to the named agent. He argues only that the affidavit fails the two-pronged test with respect to the three unnamed informants. We first examine the agent’s confidential informant’s basis of knowledge and veracity. The affidavit provides in part:

“That the confidential reliable informant advised [the agent] that [defendant] resides at 7216 N. Amherst Street, City of Portland, County of Multnomah, State of Oregon. Further, that a subject by the name of Karen Thornton resides with [defendant] at that address. That the informant advised [the agent] that the subject Karen Thornton works for Chevron Oil Company in the computer division. That on February 19, 1985, [the agent] contacted Portland General Electric and was advised that utilities at 7216 N. Amherst Street were subscribed in the name of Karen F. Thornton. PGE information indicates that Karen Thornton is employed by Chevron USA and lists a home phone number of 286-8506. A subsequent query of Pacific Northwest Bell telephone records indicates that the phone number 286-8506 is in fact subscribed to the name of K. F. Thornton at 7216 N. Amherst Street, Portland, Oregon. * * *
“That this confidential reliable informant told [the agent] [301]*301that [defendant’s] and Ron Hodges’ business, C.R.A. Construction Company, is located on N. Lombard Street, and that [defendant] co-mingles funds derived from the sale of cocaine with monies used to operate the C.R.A. Construction Company. Further, that [defendant] invests portions of those monies derived from cocaine trafficking in Chevron USA stocks and real estate purchases, with a real estate company located next to his business. That on 2/19/85,1 went to 8040 N. Lombard Street, City of Portland, County of Multnomah, State of Oregon, and at that location found the Penninsula Real Estate office which I believe to be a Century 21 Real Estate office by the signs present on the outside of the building. That I observed no signs that would indicate that this office contains a construction business, but entered that office during business hours in an undercover capacity. Once in what appeared to be a real estate office, I spoke with an employee and asked where C.R.A. Construction Company was located.

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State v. Dunning
724 P.2d 924 (Court of Appeals of Oregon, 1986)

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Bluebook (online)
724 P.2d 924, 81 Or. App. 296, 1986 Ore. App. LEXIS 3339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dunning-orctapp-1986.