State v. Pelster/Boyer

21 P.3d 106, 172 Or. App. 596, 2001 Ore. App. LEXIS 253
CourtCourt of Appeals of Oregon
DecidedFebruary 28, 2001
Docket98-1012, 98-1013 CA A102607 (Control), A102608
StatusPublished
Cited by23 cases

This text of 21 P.3d 106 (State v. Pelster/Boyer) 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. Pelster/Boyer, 21 P.3d 106, 172 Or. App. 596, 2001 Ore. App. LEXIS 253 (Or. Ct. App. 2001).

Opinions

[598]*598EDMONDS, P. J.

Defendants are charged with two counts of criminal mistreatment and one count of hindering prosecution. The indictment charges, in the criminal mistreatment counts, that defendants left two of their daughters, who were aged 13 and 15,1 in their residence under circumstances that were likely to endanger the childrens’ health and welfare. In the hindering prosecution count, the indictment charges that defendants harbored and concealed Jose Juan Gonzales Cruz (Gonzales Cruz), who was allegedly guilty of sex crimes involving the 13-year-old daughter. Before the charges were filed, the police obtained a search warrant based on the affidavit that is the subject of this appeal. Defendants moved to suppress the evidence discovered as the result of the execution of the warrant, and the trial court granted the motion. The state appeals and argues that the trial court erred in holding that the officer’s affidavit in support of the application for the warrant was insufficient to establish probable cause. We reverse.

We begin by considering several legal issues, because the resolution of those issues affects how we review the information in the affidavit. The first issue concerns the effect of the trial court’s rulings on defendants’ motion to controvert the allegations in the affidavit. ORS 133.545(4) requires that an affidavit in support of an application for a search warrant “particularly set[ ] forth the facts and circumstances tending to show that the objects of the search are in the places, or in the possession of the individuals, to be searched.” A party who files a motion to controvert the assertions in an affidavit for a search warrant has 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.” ORS 133.693(3). If the court finds inaccuracy, untruthfulness, or lack of good faith, it must then determine whether, under the [599]*599applicable law, what it found requires suppression. ORS 133.693(5).

In this case, the trial court held an extensive hearing on the motion to controvert, after which it found two different kinds of problems with the affidavit. First, it found that the officer’s statements were incomplete or inaccurate in several respects. As an example, the affidavit stated that defendants were uncooperative during an attempt to check on the welfare of their 13-year-old daughter, but it did not mention that the attempted welfare check occurred at 2:30 a.m. Those inaccuracies do not affect the essential statements in the affidavit and have only a minor effect on our review of its sufficiency.2

When the court finds inaccuracies in an affidavit, it does not “correct” the affidavit by adding evidence to it. Rather, the judge’s assessment of an affidavit after allowing a motion to controvert is one of subtraction, not addition. See State v. Harp, 299 Or 1, 9-10, 697 P2d 548 (1985). However, one way of subtracting from an affidavit is to use the additional information developed on the motion to controvert in order to weaken the force of the officer’s statements in the affidavit. That is what the court did in this case, and it is consistent with Harp. See also State v. Sloan, 66 Or App 269, 273, 673 P2d 567 (1983), rev den 296 Or 536 (1984) (when additional facts would affect the weight of facts that are otherwise sufficient to show probable cause, reviewing court determines whether magistrate, as reasonable person, would have found probable cause if omitted facts had been known and correct inferences drawn). We review the sufficiency of the affidavit in light of the trial court’s findings of inaccurate information.

[600]*600Secondly, the trial court excised a number of paragraphs and partial paragraphs from the affidavit, not because defendants had controverted them, but because the court concluded that the information that they contained was either irrelevant or legally insufficient to support the issuance of the warrant. Although parties and courts at times refer to excising material from search warrants on those grounds, see. e.g., State v. Poppe, 131 Or App 14, 19-20, 883 P2d 905, rev den 320 Or 492 (1994), in fact that action exceeds the trial court’s authority under ORS 133.693. The statute does not provide for removing information from an affidavit because it is irrelevant or legally insufficient; that remedy is available only if the information is inaccurate, untruthful, or not offered in good faith. Rather than excising irrelevant or legally insufficient information, the trial court should simply have ignored it, because it does not contribute to a showing of probable cause. The information, however, remains part of the affidavit and on appeal we may conclude, contrary to the trial court, that the information is relevant or legally sufficient. If it is, we are free to consider the information in reviewing the trial court’s decision.

Our purpose in reviewing the sufficiency of an affidavit supporting an application for a search warrant is to determine whether, on the basis of the information in the affidavit, a neutral and detached magistrate could have concluded that there was probable cause to believe that a search would discover the specified things in the specified places. State v. Young, 108 Or App 196, 200, 816 P2d 612 (1991), rev den 314 Or 392 (1992). In reviewing the issuance of a search warrant, we defer to the issuing magistrate’s determination of probable cause and resolve doubtful cases by the preference for searches that are conducted under the authority of warrants rather than without prior judicial authorization. See State v. Prince, 93 Or App 106, 112, 760 P2d 1356, rev den 307 Or 246 (1988).

Because the information in the affidavit upon which we rely is provided by named informants and the police, the test to be applied is a “totality of the circumstances” test. Young, 108 Or App at 202-03.

[601]*601“Our function, when faced with [the question of the sufficiency of such an affidavit] is to determine whether a neutral and detached magistrate could conclude, based on the facts and circumstances shown by the affidavit, that there was probable cause to believe that the search would discover things specified in the affidavit in the places requested to be searched. See ORS 133.555(1), (2). We are to construe the supporting affidavit in a common-sense and realistic fashion.” State v. Villagran, 294 Or 404, 408, 657 P2d 1223 (1983) (citations omitted).

“Probable cause” arises from information provided by named informants when a reasonable person, based on the totality of the circumstances, would believe that it is probable (more likely than not) that the objects of the search will be found at the location to be searched. State v. Anspach, 298 Or 375, 380, 692 P2d 602 (1984).

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State v. Pelster/Boyer
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Bluebook (online)
21 P.3d 106, 172 Or. App. 596, 2001 Ore. App. LEXIS 253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pelsterboyer-orctapp-2001.