State v. McManus

517 P.2d 250, 267 Or. 238, 1973 Ore. LEXIS 298

Opinions

BRYSON, J.

The defendant was indicted for Criminal Activity in Drugs (ORS 167.207). The defendant filed a motion to quash the search warrant and to suppress the evidence (marijuana) seized. It was stipulated that the court would hear the case without a jury and ■ try “the issues in the indictment and the issues, raised by the motion to quash and suppress at the. same time.”

The trial court denied defendant’s “Motion to Quash and to Suppress Evidence” and found the defendant guilty as charged in the indictment.

Defendant appealed and the Court of Appeals affirmed by a divided court. State v. McManus, 12 Or App 84, 504 P2d 1046 (1973). We allowed the petition for review.

The defendant contends that the affidavit on which the.warrant was issued was insufficient to show probable cause

Footnotes

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① and that the officer who executed the affidavit controverted the statements in the affidavit in his testimony on the motion to suppress.

Defendant’s first assignment of error before the Court of Appeals was:

“The court erred in denying defendant’s motion to suppress, which read as follows:

“Defendant * * * moves the Court for an Order quashing the affidavit for a search warrant of Lucia B. Wilson, * * * a copy of which affidavit is attached * * *; quashing the search warrant issued by said Justice of the Peace * * * based on said affidavit; and suppressing as evidence any items seized * * *; and for an Order setting a time and a place for a hearing on this Motion.

“Defendant’s grounds for this Motion are that his Federal and State constitutional right[s] to be secure in his automobile against unreasonable search and seizure have been violated, and the provisions of ORS 141.030 have not been met, and the Affidavit is not sufficient in the following particulars, to-wit:

* * * *

“2. The Affidavit does not show that any criminal activity was present on either the defendant’s person, automobile or residence.

“3. Said Affidavit is not based on probable cause but mere suspicion.”

The defendant argued in the Court of Appeals and before this court:

(1) “Defendant submits the officer in the instant case did not have probable cause for a search; the search was based on mere suspicion.

“In Officer Wilson’s affidavit, he stated defendant is ‘known to me as a trafficker in narcotics and dangerous drugs.’ However, at trial, [and on the motion] he indicated he did not know this of his personal knowledge, but it was hearsay.

“* * * [T]liere was nothing to show how the person or persons who informed Officer Wilson [that] defendant was a trafficker in dangerous drugs reached their conclusions and there was no evidence to show these persons were reliable or truthful.”

(2) “The only part of Officer Wilson’s affidavit that is relevant in determining whether there was probable cause for a search are his statements that he saw defendant hand Graven what appeared to be a baggie of marijuana and receive something that looked like money in return. However, he admitted on cross-examination the object he saw could have been an ordinary plastic container and he could not see what it contained, and he was not sure what defendant received from Graven.

“* * * It is unreasonable to assume that simply because two people are exchanging objects, these objects are contraband. * * * These circumstances are hardly suspicious, let alone sufficient to constitute [probable] cause for invading one’s privacy.”

The threshold question is whether the defendant can contest the accuracy of or the negligent mistakes in an affidavit in support of a search warrant by a motion, to quash and suppress or does a motion to controvert, as provided in OES 141.150 and 141.160, provide the exclusive procedure for doing so.

Certain facts from the record are necessary to explain the posture of the case. State Police Officer Wilson was standing in the Harney County Courthouse. He looked out the window and observed the incident involving defendant as described in his affidavit in support of the search warrant. Wilson’s affidavit for the search warrant stated three basic facts: (1) “that Steve McManus is known to me as a trafficker in narcotics and dangerous drugs”; (2) “that I have this date * * * observed Steve McManus to hand to Eandall Mark Graven what appeared to be a baggie of marijuana”; and (3) that the affiant observed defendant “receive money in return.”

At the trial, which was stipulated to also be the evidence on the motion to suppress, Officer Wilson testified:

“A. At that time, I observed two vehicles pull up — one belonging to Mr. McManus and the other belonging to Mr. Graven — on the street out there, pull up side by side and observed Mr. McManus hand something plastic like a plastic baggie, or something, over to Mr. Graven. And then I saw him return something that was green, it looked to me like money.

ÍÍ* # # # #

“Q. What, if anything, did you know about him [defendant] ?

# tt 8$ #

“THE COURT: Yes, for the affidavit.

* * «8 #

“A. Well, we have had information and stuff that he uses and sells, uh, marijuana and other items.

“Q. Did you have this knowledge at the time you were looking out this window?

“A. Yes, sir.”

On cross-examination he testified:

“Q. Now, Officer Wilson, you stated that you were in the District Attorney’s office at the time you observed Mr. McManus and Mr. Graven?

“A. Yes, sir.

“Q. And you saw something passed, uh, between them.

“A. Yes, sir.

“Q. And it appeared to be a baggie.

“A. Yes, sir.

“Q. Could it have been, uh, uh, any — an ordinary plastic container?

“A. Yes, sir..

. “Q.. And you couldn’t see the contents of this.I take it.

“A. No, sir.

“Q. And, uh, could you be certain that what you saw come back from Mr. Graven was money?

“A. No, sir, I could not.

“Q. (Pause) So then, you’re not certain what was passed.

“A. No, sir.”

It should be noted that the above testimony was solely for the purpose of testing the accuracy of the affidavit. The court acknowledged this, and both parties acceded to this procedure. The search warrant had been issued, the marijuana seeds were seized from defendant’s car, and the state introduced them in evidence. This evidence proved the state’s case on the question of guilt. No objection was taken by the state as to this procedure for controverting Officer Wilson’s affidavit;

In People v. Butler, 64 Cal 2d 842, 52 Cal Rptr 4, 415 P2d 819 (1966), the court was faced with the same problem when a motion to suppress was filed to test the accuracy of an affidavit on which a search warrant was issued rather than filing a motion to controvert. California Penal Code sections 1539-1540 were almost identical to ORS sections 141.150-141.160.② The court concluded that a defendant may “attack the validity of a warrant at the preliminary hearing and at the trial whether or not he attacked it under sections 1539 and 1540.”

“* * * [T]he Legislature’s purpose in enacting those sections [1539, 1540] was not to regulate the procedure for objecting to the introduction of evidence in criminal trials but to afford the person from whom property was wrongfully seized an expeditious remedy for its recovery. (See Aday v. Superior Court (1961) 55 Cal. 2d 789, 800, 13 Cal. Rptr. 415, 362 P2d 47.)” 415 P2d at 821.

The California court reasoned that the remedy provided by sections 1539 and 1540 “would serve the deterrent purpose of the exclusionary rule fitfully at best. It would not preclude an officer from testifying to what he saw in the course of a search under an invalid warrant or from using information obtained in such a search to secure other evidence. * * * It would afford no relief to a defendant from whom the property was not taken. * * * It would afford no relief when the property is contraband, which cannot be returned [as in the case at bar]. * * * Since the state must afford to ‘every defendant a full and fair opportunity to secure an adjudication of all claimed deprivations of his constitutional rights in the securing of the evidence offered against him at the trial’ (In re Sterling (1965) 63 Cal. 2d 486, 488, 47 Cal. Rptr. 205, 207, 407 P.2d 5, 7; see Townsend v. Sain, 372 U. S. 293, 312-318, 83 S. Ct. 745, 9 L. Ed. 2d 770), a requirement that he must exhaust the remedy under sections 1539-1540 would entail either a broadening of the remedy beyond the statutory terms or the adoption of exceptions when the statutory remedy was inadequate.”

The procedure in Butler was affirmed in the recent ease of Theodor v. Superior Court, 8 Cal 3d 77, 104 Cal Rptr 226, 501 P2d 234 (1972). In Theodor the defendant contended that he could, by a motion to suppress, attack the accuracy of the affidavit in an effort to prove there was no probable cause for the issuance of the warrant. The court stated:

“The standard of probable cause is most often relevant in the determination of whether the inferences drawn by a magistrate or officer from the facts presented (see Aguilar v. Texas, supra [378 US 108, 84 S Ct 1509, 12 L Ed 2d 723 (1964)]; Spinelli v. United States (1969) 393 U. S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637) are reasonable. (Dumbra v. United States, supra, 268 U. S. 435, 441, 45 S. Ct. 546, 69 L. Ed. 1032.) However, if a magistrate is presented with false or inaccurate information in an application for a warrant, the inferences he draws from such information are hot based on reality but on the fantasies of the misinformed or misinforming affiant. Regardless of whether misstatements are intentionally false or the product of reasonable or unreasonable cerebration, their ineluctable result is an adverse effect upon the normal inference-drawing process of the magistrate. * * *” 501 P2d at 248.

“However, once the defendant has demonstrated to the court that the affidavit contains errors, the burden then shifts to the prosecution to establish that the inaccuracies were included as the result of reasonable misapprehensions. Since inaccurate statements in an affidavit frustrate the inference-drawing process, the magistrate’s, function is circumvented in much the same manner as when no warrant Is obtained. * * *

“* * * [0]nce a defendant makes a prima facie showing of inaccuracy, the burden then shifts to the prosecntion to negate that showing. * * *” 501 P2d at 251-52.

See also, Commonwealth v. Hall, 451 Pa 201, 302 A2d 342 (1973), to the same effect and citing Theodor; and State v. Nanoff, — Mont —, 502 P2d 1138 (1972).

The 1973 Criminal Code of Procedure, Chapter 836, Oregon Laws 1973, Sections 114 and 118③ (effective January 1,1974), provides much the same method. OPS 141.150 and 141.160, motion to controvert, have been amended accordingly. See also, Section 111 (grounds for motion for return or restoration of things seized):

We conclude that the defendant can contest the accuracy of or the negligent mistake in an affidavit by a motion to suppress before trial without first filing a motion to controvert as provided by statute.

Defendant contends the suppression hearing proved Officer Wilson’s declaration in the affidavit, “[defendant] is known to me as a trafficker in narcotics and dangerous drugs,” was hearsay and not of his personal knowledge; that no evidence was offered to show how he was so informed or how his informers reached the conclusions that defendant was a drug trafficker or if such informers were reliable or truthful.

In Spinelli v. United States, 393 US 410, 89 S Ct 584, 21 L Ed 2d 637 (1969), the question before the court was the sufficiency of the affidavit:

“The application stated that ‘William Spinelli is ¡mown to this affiant and to federal law enforcement agents and loeal law enforcement agents as a bookmaker, an associate of bookmakers, a gambler, and an associate of gamblers.’ * * *” 393 US at 414.

“We conclude, then, that in the present case the informant’s tip — even when corroborated to the extent indicated — was not sufficient to provide the basis for a finding of probable cause. * * * All that remains to be considered is the flat statement that Spinelli was ‘known’ to the FBI and others as a gambler. But just as a simple assertion of police suspicion is not itself a sufficient basis for a magistrate’s finding of probable cause, we do not believe it may be used to give additional weight to allegations that would otherwise be insufficient.” 393 US at 418-19.

In United States v. Harris, 403 US 573, 91 S Ct 2075, 29 L Ed 2d 723 (1971), Chief Justice Burger criti cized the above language in Spinelli, but a majority of the court refused to join in that portion of bis opinion. .Thus, Spinelli, in this respect, continues to state the law. On a Fourth Amendment constitutional standard enunciated by the United States Supreme Court, there is nothing to prevent this court from adopting a more restrictive rule than that of the United States Supreme Court. State v. Evans, 258 Or 437, 442, 483 P2d 1300 (1971). But we cannot adopt a rule granting the state more freedom than the precedent declared by the United States Supreme Court and thereby override that court.

The statement in the affidavit that defendant was known to the affiant as a “trafficker in narcotics and dangerous drugs” is supported solely by the affiant’s testimony, “Well, we have had information and stuff that he uses and sells, uh, marijuana and other items.” In Giordenello v. United States, 357 US 480, 78 S Ct 1245, 2 L Ed 2d 1503 (1958), the court found the affidavit did “not provide any basis for the Commissioner’s determination” as there was “no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not set forth any other sufficient basis * * 357 US at 486, 78 S Ct at 1250, 2 L Ed at 1510.

In the case at bar there is no explanation of how Officer Wilson knew that defendant was a trafficker in drugs; there is no testimony showing the source or reliability of the information on which he based his conclusion; and the record discloses that the defendant had no criminal convictions for such activities. In State v. Dunavant, 250 Or 570, 576, 444 P2d 1 (1968), we held:

“The rule that a search warrant affidavit may be based on hearsay is qualified by the requirement that there be in the affidavit a substantial basis for crediting the hearsay. Jones v. United States, supra, 362 US 257, 80 S Ct 725, 4 L ed 2d 697; United States v. Ventresca, 380 US 102, 85 S Ct 741, 13 L ed 2d 684 (1965); Rugendorf v. United States, 376 US 528, 84 S Ct 825, 11 L ed 2d 887, reh. den., 377 US 940 (1964); Aguilar v. Texas, supra; State v. Tacker, 241 Or 597, 407 P2d 851, 10 ALR3d 355 (1965).”

We conclude that the bare statement of the affiant affords no basis from which the justice of peace could draw an inference that defendant was a trafficker in drugs.

The defendant next contends that at the suppression hearing Officer Wilson “admitted on cross-examination the object he saw could have been an ordinary plastic container and he could not see what it contained, and he was not sure what defendant recovered from Graven * * *. These circumstances are hardly suspicious, let alone sufficient to constitute [probable] cause * *

The Court of Appeals’ majority opinion described the event as follows:

“* * * We believe that when the drivers of two automobiles are observed pulling up abreast of each other, and one driver is seen passing a plastic baggie to the other driver in exchange for what reasonably appears to be money, we have a highly suspicious transaction * * and characterized the required content of the affidavit to be “reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that a drug offense had been committed * * (Emphasis supplied.) 12 Or App at 88, 504 P2d at 1048 (1973).

This is not in accord with this court’s decision in State v. Ingram, 251 Or 324, 326, 445 P2d 503 (1968), wherein we stated, “[t]he evidence of probable cause must be more than would give rise to a mere suspicion * *

The trial court was faced with the situation where the affiant seeking the warrant admitted at the hearing to suppress that the facts stated in the affidavit were not essentially correct and were overstated. The affiant now admitted that “what appeared to be a baggie of marijuana” could have been an “ordinary plastic container” which he could not “see the contents of” and that he could not be certain that what the defendant received from Graven was money. The officer, removed from the expediency of the incident, and with more considered reasoning, admitted his mistake in making the assertions in his affidavit to the magistrate.

In Theodor v. Superior Court, supra, 501 P2d at 251, the court held:

“* * * [I]f statements contained therein are demonstrated to be false and if the affiant was unreasonable in believing the truth of such information, those facts must be excised from the affidavit and probable cause tested from the remaining truthful information.”

We hold that a 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 re-examined 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 Ms 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,’ oMy in the discretion of the police.” Accordingly, we conclude that the affidavit as corrected by the officer’s testimony was, at best, a vague suspicion and did not constitute probable cause for the issuance of the search warrant.

Defendant’s other assignment of error concerning the procedure and claimed irregularities at the time of sentencing need not be answered.

The judgment is reversed and the cause is remanded to the trial court.

ORS 141.010:

“A search warrant may be issued upon any of the following grounds:

‡ & 3:

“(2) When the property was used in the commission of, or which would constitute evidence of, the crime.

ttiJ; ‡ ‡ »

ORS 141.030:

“A search warrant cannot be issued but upon probable cause, shown by affidavit, naming or describing the person, and describing the property and the place to be searched.”

Oregon Constitution, Art I, § 9; Fourth Amendment, U. S. Constitution.

ORS 141.060:

“If the magistrate is satisfied that there is probable cause to believe that the grounds of the application exist, .he shall issue the search warrant.”

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ORS 141.150:

“Hearing when grounds for issuance of search warrant are controverted. If the person from whose possession the property was taken controverts, the grounds of issuing the warrant, the magistrate shall proceed to examine the matter by taking testimony in relation thereto.”

ORS. 141.160:

“Restoration of property to person, from whom it was. taken. If it appears that the property taken is not the same as that described in the warrant or that there is no probable cause for believing that the grounds on which the warrant was issued exist, the magistrate shall cause the property to be restored to the person from whom it was taken.”

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“SECTION 114. (Motions to suppress evidence.) (1) Objections to use in evidence of things seized in violation of any of the provisions of sections 81 to 119 of this Act shall be made by a motion to suppress which shall be heard and determined by the court in advance of trial.

“(2) A motion to suppress which has been denied may be renewed, in the discretion of the court, on, the ground of newly discovered evidence, or as the interests of justice require.”

“SECTION 118. (Challenge to truth of the evidence.) (1) Subject to the provisions of subsection (2) of this section, in any proceeding on a motion to suppress evidence the moving party shall be entitled to contest, by cross-examination or offering evidence, the good faith, accuracy and truthfulness of the affiant with respect to the evidence presented to establish probable cause for search or seizure.

“(2) If the evidence sought to be suppressed was seized by authority of a search warrant, the moving party shall be allowed to contest the good faith, accuracy and truthfulness of the affiant as to the evidence presented before the issuing authority only upon supplementary motion, supported by affidavit, setting forth substantial basis for questioning such good faith, accuracy and truthfulness.

“(3) .In any proceeding under subsection (2) of this section, the moving party shall have the burden of proving by a preponderance of the evidence that the evidence presented before the issuing authority was not offered in good faith, was not accurate and was not truthful.