State v. McGee

Court of Appeals of Oregon

State v. McGee

607 P.2d 217, 45 Or. App. 13, 1980 Ore. App. LEXIS 2277

CourtCourt of Appeals of Oregon

DecidedMarch 3, 1980

Docket18-736, CA 15539

StatusPublished

Cited by5 cases

This text of 607 P.2d 217 (State v. McGee) 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. McGee, 607 P.2d 217, 45 Or. App. 13, 1980 Ore. App. LEXIS 2277 (Or. Ct. App. 1980).

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Opinion

*15 SCHWAB, C. J.

Defendant seeks reversal of his conviction of possession of marijuana. He correctly contends that the trial court erred in denying his motion to suppress, because the affidavit in support of the search warrant was insufficient to establish probable cause.

The only operative facts recited in the affidavit supporting issuance of the warrant are that (1) a confidential reliable informant was in defendant’s residence "within the past 48 hours” and that (2) while there he observed "a quantity of marijuana.”

In State v. Kittredge/Anderson, 36 Or App 603, 585 P2d 423 (1978), we found a similar affidavit insufficient. There, the only operative facts recited in the affidavit were (1) that a confidential reliable informant was in specified premises "within the past 96 hours” and (2) that "while in the residence * * * [he] observed * * * marijuana.” 36 Or App at 605. We observed that the affidavit did not relate how much marijuana was seen in the house, who normally occupied the house, who actually possessed the marijuana, or whether the suspect had a history of drug use or dealings. We noted that a further detailing of any of the above items, or other relevant facts, might have rendered the affidavit sufficient to establish probable cause. 36 Or App at 606-07. See also State v. Ingram, 251 Or 324, 445 P2d 503 (1968).

Reversed and remanded for a new trial.

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*15 SCHWAB, C. J.

Defendant seeks reversal of his conviction of possession of marijuana. He correctly contends that the trial court erred in denying his motion to suppress, because the affidavit in support of the search warrant was insufficient to establish probable cause.

The only operative facts recited in the affidavit supporting issuance of the warrant are that (1) a confidential reliable informant was in defendant’s residence "within the past 48 hours” and that (2) while there he observed "a quantity of marijuana.”

In State v. Kittredge/Anderson, 36 Or App 603, 585 P2d 423 (1978), we found a similar affidavit insufficient. There, the only operative facts recited in the affidavit were (1) that a confidential reliable informant was in specified premises "within the past 96 hours” and (2) that "while in the residence * * * [he] observed * * * marijuana.” 36 Or App at 605. We observed that the affidavit did not relate how much marijuana was seen in the house, who normally occupied the house, who actually possessed the marijuana, or whether the suspect had a history of drug use or dealings. We noted that a further detailing of any of the above items, or other relevant facts, might have rendered the affidavit sufficient to establish probable cause. 36 Or App at 606-07. See also State v. Ingram, 251 Or 324, 445 P2d 503 (1968).

Reversed and remanded for a new trial.

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607 P.2d 217, 45 Or. App. 13, 1980 Ore. App. LEXIS 2277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcgee-orctapp-1980.

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