State v. Miller

Court of Appeals of Oregon

State v. Miller

849 P.2d 563, 119 Or. App. 102, 1993 Ore. App. LEXIS 528

CourtCourt of Appeals of Oregon

DecidedMarch 31, 1993

Docket10-89-06163A; CA A67050

StatusPublished

This text of 849 P.2d 563 (State v. Miller) 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.

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State v. Miller, 849 P.2d 563, 119 Or. App. 102, 1993 Ore. App. LEXIS 528 (Or. Ct. App. 1993).

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Opinion

RIGGS, J.

The state petitions for review of our opinion, 116 Or App 174,840 P2d 1329 (1992). We treat the petition as one for reconsideration, ORAP 9.15, and allow it only to address the state’s argument that we misconstrued the law pertaining to motions to controvert, because our ruling is inconsistent with State v. Esplin, 314 Or 296, 839 P2d 211 (1992).

In Esplin, the Supreme Court clarified that, at the time an officer applies for a search warrant, “the officer must subjectively believe that a crime has been committed and that a thing is subject to seizure, and the officer’s belief need only be objectively reasonable then” State v. Esplin, supra, 314 Or at 304. (Emphasis in original.) Contrary to the state’s assertion, our opinion is not inconsistent with that rule.

We said that a defendant is entitled to challenge the accuracy of an officer’s affidavit by challenging the objective reasonableness of that officer’s belief at the time that the officer applied for the warrant. When a defendant proves that the officer’s belief that certain material facts in the affidavit are true is objectively unreasonable, then that officer’s good faith will not save the affidavit. In those circumstances, the affidavit contains material inaccuracies and the reviewing court must evaluate the sufficiency of the affidavit based on the remaining accurate information. 116 Or App at 178; State v. Harp, 299 Or 1, 9, 697 P2d 548 (1985). That analysis is consistent with State v. Esplin, supra.

Reconsideration allowed; opinion modified and adhered to as modified.

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RIGGS, J.

The state petitions for review of our opinion, 116 Or App 174,840 P2d 1329 (1992). We treat the petition as one for reconsideration, ORAP 9.15, and allow it only to address the state’s argument that we misconstrued the law pertaining to motions to controvert, because our ruling is inconsistent with State v. Esplin, 314 Or 296, 839 P2d 211 (1992).

In Esplin, the Supreme Court clarified that, at the time an officer applies for a search warrant, “the officer must subjectively believe that a crime has been committed and that a thing is subject to seizure, and the officer’s belief need only be objectively reasonable then” State v. Esplin, supra, 314 Or at 304. (Emphasis in original.) Contrary to the state’s assertion, our opinion is not inconsistent with that rule.

We said that a defendant is entitled to challenge the accuracy of an officer’s affidavit by challenging the objective reasonableness of that officer’s belief at the time that the officer applied for the warrant. When a defendant proves that the officer’s belief that certain material facts in the affidavit are true is objectively unreasonable, then that officer’s good faith will not save the affidavit. In those circumstances, the affidavit contains material inaccuracies and the reviewing court must evaluate the sufficiency of the affidavit based on the remaining accurate information. 116 Or App at 178; State v. Harp, 299 Or 1, 9, 697 P2d 548 (1985). That analysis is consistent with State v. Esplin, supra.

Reconsideration allowed; opinion modified and adhered to as modified.

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849 P.2d 563, 119 Or. App. 102, 1993 Ore. App. LEXIS 528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-miller-orctapp-1993.

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