State v. Shaw

290 Or. 162
CourtOregon Supreme Court
DecidedJuly 1, 1980
DocketCA 12379, SC 26804
StatusPublished

This text of 290 Or. 162 (State v. Shaw) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Shaw, 290 Or. 162 (Or. 1980).

Opinion

HOWELL, J.

In these three consolidated cases, the defendants challenge the legal sufficiency of the affidavits upon which a Lane County district judge relied in finding probable cause to issue search warrants to conduct searches of defendants’ homes. Defendants contend that the affidavits did not establish the veracity of the police informants, as required by our decisions and those of the United States Supreme Court. The trial court agreed and granted defendants’ motions to suppress. The state appealed, ORS 168.030(3), and the Court of Appeals reversed in per curiam opinions. State v. Carlile, 43 Or App 692, 603 P2d 783 (1979); State v. Reiter, 41 Or App 389, 598 P2d 699 (1979) ; State v. Shaw, 41 Or App 632, 598 P2d 1305 (1979). We allowed review to consider whether the results below are consistent with the requirements of ORS 133.545; article I, section 9 of the Oregon Constitution; and the fourth amendment to the United States Constitution.1

In State v. Montigue, 288 Or 359, 605 P2d 656 (1980) , we applied the "two-pronged test” of Aguilar v. Texas, 378 US 108, 84 S Ct 1509, 12 L Ed 2d 723 (1964), and Spinelli v. United States, 393 US 410, 89 S Ct 584, 21 L Ed [164]*1642d 637 (1969), for analyzing the trustworthiness of hearsay information offered to show probable cause to obtain a search warrant. We held that the test for determining the sufficiency of an affidavit based on facts supplied by informants 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. State v. Montigue, supra at 362. See also Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L Rev 741 (1974).

Montigue involved an affidavit based on hearsay information provided by a named "citizen-informer.” The present cases involve an issue not presented in Montigue, that is, the sufficiency of affidavits that are based on hearsay information supplied, not by "citizen-informers,” but by named informers who are criminally involved.

Challenges to the sufficiency of two search warrants are involved. The first warrant covered the Carlile residence; the second warrant covered the home shared by Reiter and Shaw. In support of their application for the Carlile warrant, police filed an affidavit by Officer Dennis Williams of the Eugene Police Department. The affidavit stated, in relevant part:

"That I have been working a series of narcotics transactions with David Guth of the Lane Interagency Narcotics Team (LINT). That Mr. Guth has been a LINT agent for the past 4 years and has had extensive training in the identification and recognition of dangerous and narcotic drugs.
"That Mr. Guth indicated to me that on the evening of 30 March 1978 he had a conversation with Joan Alma Sundstrom, 936 Adams, Eugene, Lane County, Oregon. That Joan Sundstrom had in her possession a white powder substance that subsequently field tested positive for the Narcotic Drug Cocaine.
"That Mr. Guth indicated that Joan Sundstrom said that earlier on 30 March 1978 she had been in Judith Carlisle’s [sic] residence where she had obtained the Cocaine.
"That surveillance by police agents indicated that Joan Sundstrom had entered the Carlisle residence which is located at 1160 Almadén, Eugene, Lane County, Oregon. [165]*165That a check with the Eugene Telephone directory further confirms that Judith Carlisle resides at 1160 Almadén, Eugene, Lane County, Oregon.”

Carlile challenges the sufficiency of this affidavit on grounds that it gave the judge no basis to believe Sundstrom’s allegations. She argues that the affidavit fails to show that Sundstrom was either a credible source or, on this occasion, a reliable informant. Carlile contends that Sundstrom’s admission of criminal involvement places Sundstrom’s credibility under suspicion.

The State contends that Sundstrom’s reliability and credibility was established in the affidavit by the following: Sundstrom’s name and address; and statements that police surveillance indicated that Sundstrom had been to the Carlile residence, that Sundstrom admitted obtaining cocaine from Carlile (which is an admission against penal interest), and that police confirmed that Sundstrom possessed cocaine.

We held in Montigue that the informant there was entitled to a presumption of veracity because the magistrate issuing the search warrant could infer from the affidavit that the informant, who was named, was a citizen-informer who had voluntarily initiated the report of a crime. The naming of the informant was not sufficient to establish the informant’s veracity. But the fact that the named citizen-informer had voluntarily initiated the report of criminal activity supported issuance of the search warrant.

1. We noted in Montigue that the naming of an informant is one factor which may be weighed in determining the sufficiency of an affidavit. 288 Or at 365, quoting 1 LaFave, Search and Seizure 599, § 3.4 (1978). We explained that by revealing her name, and thus exposing her identity, an informant may be liable for damages in a civil action for malicious prosecution or may be called later as a witness so as to be exposed to the penalties of perjury if her testimony is contrary to the facts stated in the affidavit. 288 Or at 367.

In the present case, therefore, the naming of the informant was one factor that would lead a judge to infer that the informant was telling the truth.

[166]*166With respect to Sundstrom’s admission of criminal involvement, we refer to the decision of the United States Supreme Court in United States v. Harris, 403 US 573, 91 S Ct 2075, 29 L Ed 2d 723 (1971). In that case a search warrant was issued on the basis of an affidavit by a federal tax investigator which recited that the investigator received information from an unnamed informant. The informant had stated that he had purchased illicit whiskey from within the residence described in the warrant. The investigator also stated in his affidavit that he had personal knowledge of the illegal activity.

The Harris court upheld the sufficiency of the affidavit, stating:

"Quite apart from the affiant’s own knowledge of respondent’s activities, there was an additional reason for crediting the informant’s tip. Here the warrant’s affidavit recited extrajudicial statements of a declarant, who feared for his life and safety if his identity was revealed, that over the past two years he had many times and recently purchased 'illicit whiskey.’ These statements were against the informant’s penal interest, for he thereby admitted major elements of an offense under the Internal Revenue Code. Section 5205(a)(2), Title 26, United States Code, proscribes the sale, purchase, or possession of unstamped liquor.
"Common sense in the important daily affairs of life would induce a prudent and disinterested observed to credit these statements.

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Related

Aguilar v. Texas
378 U.S. 108 (Supreme Court, 1964)
Spinelli v. United States
393 U.S. 410 (Supreme Court, 1969)
United States v. Harris
403 U.S. 573 (Supreme Court, 1971)
State v. Barnett
598 P.2d 1301 (Court of Appeals of Oregon, 1979)
State v. Montigue
605 P.2d 656 (Oregon Supreme Court, 1980)
State v. Reiter
598 P.2d 699 (Court of Appeals of Oregon, 1979)
State v. Carlile
43 Or. App. 692 (Court of Appeals of Oregon, 1979)
State v. Stephens
603 P.2d 783 (Court of Appeals of Oregon, 1979)

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Bluebook (online)
290 Or. 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-shaw-or-1980.