YOUNG, J.
Defendant was convicted, on stipulated facts, of Unlawful Possession of a Controlled Substance. ORS 475.992(4). On appeal, he assigns as error the denial of his motion to suppress evidence seized during execution of a search warrant. Probable cause to issue the warrant was supplied by the affidavit of James Michaud, a police officer with the Eugene Police Department. The affidavit was based primarily on hearsay statements given by a named informant. The ultimate issue on appeal is whether the informant’s veracity was sufficiently demonstrated to justify issuance of the warrant. We hold it was and affirm.
Officer Michaud’s affidavit, which incorporated the affidavit of Officer Randall, supplies the factual background and substantive basis for this appeal. The affidavits, in pertinent part, are set out in the margin.
Based upon the affidavits, a search warrant was issued for defendant’s residence. At trial the parties stipulated that the search produced evidence that defendant unlawfully possessed cocaine.
I.
Defendant moved to suppress the evidence and simultaneously filed a motion to controvert the allegations of Michaud’s affidavit. ORS 133.693. To support both motions, defendant relied on a police report prepared by Michaud which, defendant argues, generally gave a less favorable impression of Michaud’s informant as a "truth speaker” than did the affidavit. In particular, the report indicated that the informant, Kelsey, gave a false name and address when he was arrested at the airport, that he
resisted arrest, that he initially gave an incomplete and possibly different account of his visit to Eugene and that he was wanted by federal authorities in California. Defendant argued at the hearing, and argues now on appeal, that these supplemental facts should be taken into account in determining whether the affiant’s information was from a reliable source.
A motion to controvert tests only the good faith, accuracy and truthfulness
of the affiant
as to the evidence presented to the authority which issued the warrant. ORS 133.693(2);
State v. Libermann,
51 Or App 345, 625 P2d 678 (1981);
State v. Coatney,
44 Or App 13, 604 P2d 1269,
rev den
(1980). The facts in Michaud’s police report supplement but do not in any way contradict the evidence presented in the affidavit. The police report, therefore, does not test the accuracy or truthfulness of the affiant. Defendant’s basic contention is that Michaud was not completely forthright with respect to his informant’s character and that the magistrate consequently had incomplete information from which to determine the informant’s veracity. The challenge is to the affiant’s good faith.
The trial court denied the motion to controvert and in essence ruled that defendant failed to prove that Michaud had not acted in good faith. The first question is whether, in light of the trial court’s ruling, the controverting evidence produced by defendant should still be considered in determining whether suppression should be ordered.
Defendant relies on
State v. Hughes,
20 Or App 493, 532 P2d 818 (1975), where the issue was whether probable cause had been established before the magistrate who issued the warrant. We said:
"* * * To decide this question we must necessarily limit the inquiry to the information that was before the magistrate, that is, the contents of the affidavit. The testimony at the suppression hearing
can detract
from the affidavit to the extent that it proves inaccuracies; but the testimony cannot add to the affidavit because information known to an affiant but not communicated to the issuing magistrate cannot be the basis of a probable-cause determination.” (Citations omitted; emphasis supplied.) 20 Or App at 497-98.
The requirement that detracting evidence be considered derives from
State v. McManus,
267 Or 238, 517 P2d 250 (1973). In that case the affiant, a police officer, stated in his affidavit that he had observed defendant hand "what appeared to be a baggie of marijuana” to another person. At the suppression hearing the officer admitted that he could not see the contents of the container and that he was not certain what was passed. The court held:
<<* * * [^] statement in an affidavit supporting a warrant must be removed if it is intentionally false. Negligent statements in an affidavit need not be excised, but we require that the entire supporting affidavit be reexamined in light of the controverting statements given at the hearing. Would the magistrate as a reasonable, cautious man have issued the warrant if he had known the correct facts and drawn the correct inferences in arriving at probable cause when he issued the warrant? The officer might have thought he was acting in good faith, but he admitted to overstating the correct facts in his affidavit and therefore disrupted the normal inference-drawing process. As stated in
Beck v. Ohio,
379 US 89, 97, 85 S Ct 223, 13 L Ed 2d 142 (1964), 'If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be "secure in their persons, houses, papers and effects,” only in the discretion of the police.’”
As in
McManus,
what we are concerned with here is the integrity of the inference drawing process by which the magistrate is to decide
independently
whether there are sufficient grounds for issuing a warrant. When probable cause is supplied by a hearsay source, the magistrate’s independent determination of probable cause depends on his ability to determine independently that the informant is trustworthy and should be believed. That process may be interfered with not only by inaccurate information, but also by the affiant’s failure, whether intentional or negligent, to fully disclose facts pertaining to the informant’s veracity. That would include facts relating to both the informant’s credibility, i.e., his reputation and demonstrated history of honesty and integrity, and the reliability of his information, i.e., circumstances assuring trustworthiness on the particular occasion.
State v. Montigue,
288 Or 359, 362-63, 605 P2d 656 (1980).
If, by failure to supply enough information, the magistrate’s inference drawing process is disrupted, a remedy is required. ORS 133.693
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YOUNG, J.
Defendant was convicted, on stipulated facts, of Unlawful Possession of a Controlled Substance. ORS 475.992(4). On appeal, he assigns as error the denial of his motion to suppress evidence seized during execution of a search warrant. Probable cause to issue the warrant was supplied by the affidavit of James Michaud, a police officer with the Eugene Police Department. The affidavit was based primarily on hearsay statements given by a named informant. The ultimate issue on appeal is whether the informant’s veracity was sufficiently demonstrated to justify issuance of the warrant. We hold it was and affirm.
Officer Michaud’s affidavit, which incorporated the affidavit of Officer Randall, supplies the factual background and substantive basis for this appeal. The affidavits, in pertinent part, are set out in the margin.
Based upon the affidavits, a search warrant was issued for defendant’s residence. At trial the parties stipulated that the search produced evidence that defendant unlawfully possessed cocaine.
I.
Defendant moved to suppress the evidence and simultaneously filed a motion to controvert the allegations of Michaud’s affidavit. ORS 133.693. To support both motions, defendant relied on a police report prepared by Michaud which, defendant argues, generally gave a less favorable impression of Michaud’s informant as a "truth speaker” than did the affidavit. In particular, the report indicated that the informant, Kelsey, gave a false name and address when he was arrested at the airport, that he
resisted arrest, that he initially gave an incomplete and possibly different account of his visit to Eugene and that he was wanted by federal authorities in California. Defendant argued at the hearing, and argues now on appeal, that these supplemental facts should be taken into account in determining whether the affiant’s information was from a reliable source.
A motion to controvert tests only the good faith, accuracy and truthfulness
of the affiant
as to the evidence presented to the authority which issued the warrant. ORS 133.693(2);
State v. Libermann,
51 Or App 345, 625 P2d 678 (1981);
State v. Coatney,
44 Or App 13, 604 P2d 1269,
rev den
(1980). The facts in Michaud’s police report supplement but do not in any way contradict the evidence presented in the affidavit. The police report, therefore, does not test the accuracy or truthfulness of the affiant. Defendant’s basic contention is that Michaud was not completely forthright with respect to his informant’s character and that the magistrate consequently had incomplete information from which to determine the informant’s veracity. The challenge is to the affiant’s good faith.
The trial court denied the motion to controvert and in essence ruled that defendant failed to prove that Michaud had not acted in good faith. The first question is whether, in light of the trial court’s ruling, the controverting evidence produced by defendant should still be considered in determining whether suppression should be ordered.
Defendant relies on
State v. Hughes,
20 Or App 493, 532 P2d 818 (1975), where the issue was whether probable cause had been established before the magistrate who issued the warrant. We said:
"* * * To decide this question we must necessarily limit the inquiry to the information that was before the magistrate, that is, the contents of the affidavit. The testimony at the suppression hearing
can detract
from the affidavit to the extent that it proves inaccuracies; but the testimony cannot add to the affidavit because information known to an affiant but not communicated to the issuing magistrate cannot be the basis of a probable-cause determination.” (Citations omitted; emphasis supplied.) 20 Or App at 497-98.
The requirement that detracting evidence be considered derives from
State v. McManus,
267 Or 238, 517 P2d 250 (1973). In that case the affiant, a police officer, stated in his affidavit that he had observed defendant hand "what appeared to be a baggie of marijuana” to another person. At the suppression hearing the officer admitted that he could not see the contents of the container and that he was not certain what was passed. The court held:
<<* * * [^] statement in an affidavit supporting a warrant must be removed if it is intentionally false. Negligent statements in an affidavit need not be excised, but we require that the entire supporting affidavit be reexamined in light of the controverting statements given at the hearing. Would the magistrate as a reasonable, cautious man have issued the warrant if he had known the correct facts and drawn the correct inferences in arriving at probable cause when he issued the warrant? The officer might have thought he was acting in good faith, but he admitted to overstating the correct facts in his affidavit and therefore disrupted the normal inference-drawing process. As stated in
Beck v. Ohio,
379 US 89, 97, 85 S Ct 223, 13 L Ed 2d 142 (1964), 'If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be "secure in their persons, houses, papers and effects,” only in the discretion of the police.’”
As in
McManus,
what we are concerned with here is the integrity of the inference drawing process by which the magistrate is to decide
independently
whether there are sufficient grounds for issuing a warrant. When probable cause is supplied by a hearsay source, the magistrate’s independent determination of probable cause depends on his ability to determine independently that the informant is trustworthy and should be believed. That process may be interfered with not only by inaccurate information, but also by the affiant’s failure, whether intentional or negligent, to fully disclose facts pertaining to the informant’s veracity. That would include facts relating to both the informant’s credibility, i.e., his reputation and demonstrated history of honesty and integrity, and the reliability of his information, i.e., circumstances assuring trustworthiness on the particular occasion.
State v. Montigue,
288 Or 359, 362-63, 605 P2d 656 (1980).
If, by failure to supply enough information, the magistrate’s inference drawing process is disrupted, a remedy is required. ORS 133.693(2) directs that a defendant may not question the good faith of the affiant in presenting evidence to the magistrate, unless the defendant first demonstrates a "substantial basis for questioning such good faith * * *.” We hold that where the defendant meets this threshold burden and introduces evidence showing that the affiant failed to make a full disclosure of information known to him, "the entire supporting affidavit [should] be re-examined in light of the controverting statements given at the hearing.”
State v. McManus, supra.
n
The test established by
Aguilar v. Texas,
378 US 108, 84 S Ct 1509, 12 L Ed 723 (1964), and
Spinelli v. United States,
393 US 410, 89 S Ct 584, 21 L Ed 2d 637 (1969), to be applied in determining the sufficiency of an affidavit stating facts supplied by an informant is:
"(1) whether the affidavit sets forth the informant’s 'basis of knowledge’ and (2) whether the affidavit sets forth facts showing the informant’s 'veracity’ by indicating either that the informant is credible or that his information is reliable.” (Citations omitted.)
State v. Carlile,
290 Or 161, 164, 619 P2d 1280 (1980).
The question here is whether the informant’s veracity was demonstrated.
In
State v. Carlile, supra,
the court took consolidated review of three cases, all of which involved search warrants based on information supplied by named, but criminally involved, informants. In all three cases, the court identified the naming of the informants and their having made declarations against penal interest as factors indicating their information was reliable. The search warrant pertaining to defendant Carlile’s residence was upheld because the police had also partially corroborated the informant’s information. There was no corroboration of the information leading to the arrest of the other defendants. As to them, the court reached a different result, saying:
"* * * [T]he affidavit provided no assurance either that the informant was inherently credible or that her information was reliable. The fact that she was named and that
she had made an admission against her penal interest is an insufficient guarantee of reliability where no partial police corroboration of the information was made.” 290 Or at 168.
In this case the informant was both named and made declarations against his penal interest in the affidavit (by admitting that he ingested and attempted to sell cocaine). There was also police corroboration. Kelsey supplied Michaud with a telephone number and described the route to defendant’s residence. The address obtained from the phone company together with Kelsey’s description of the route substantially verified that he actually had been to defendant’s house.
Defendant argues that the corroboration must relate to the alleged criminal activity. Judge Moylan gives the following explanation of the relevance of corroboration to analysis of an informant’s veracity:
"When independent police observations have verified part of the story told by an informant, that corroboration lends credence to the remaining unverified portion of the story by demonstrating that the informant has, to the extent tested, spoken truly. The verification helps to demonstrate his 'credibility.’ Present good performance shows him to be probably 'credible’ just as surely as does past good performance.” Moylan, "Hearsay and Probable Cause: An Aguilar and Spinelli Primer,” 24 Mercer L Rev 741, 779 (1974).
Police corroboration which does not directly relate to the circumstances establishing probable cause is as demonstrative of "present good performance” and as relevant to establishing the informant’s veracity as is corroboration of the criminal activity itself.
We must, however, still consider the facts relating to veracity set forth in Michaud’s police report. The report and affidavit together reveal that the informant, Kelsey, was from out of town, that he traveled to Eugene with a purpose to sell cocaine, failed to meet his buyer and, after resisting, was arrested at the airport when he attempted to leave Eugene with the cocaine. Kelsey initially gave a false name and address but thereafter gave his real name and informed Michaud that he was wanted by federal
authorities. Kelsey also gave a general account of his activities during his stay in Eugene; he apparently later gave a second account which included his having met defendant at the lounge. We find nothing inconsistent in the two accounts. Kelsey’s activities with defendant supplement but do not contradict the substance of the first account. While some of the facts contained in the report tend to detract from the informant’s character as a "truth speaker,” others indicate that, when confronted, Kelsey decided to come clean. He freely gave Michaud his real name and said he was wanted by federal authorities. Taken as a whole, these facts do not detract from the indicia of veracity contained in the affidavit alone.
The affidavit supplied a sufficient basis for the magistrate’s independent determination of probable cause, and, because the controverting evidence was not meaningfully detracting, the motion to suppress was properly denied.
Affirmed.