State v. Thorfinnson

853 P.2d 1368, 121 Or. App. 10, 1993 Ore. App. LEXIS 960
CourtCourt of Appeals of Oregon
DecidedJune 9, 1993
Docket91CR0181; CA A72247
StatusPublished

This text of 853 P.2d 1368 (State v. Thorfinnson) 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. Thorfinnson, 853 P.2d 1368, 121 Or. App. 10, 1993 Ore. App. LEXIS 960 (Or. Ct. App. 1993).

Opinion

WARREN, P. J.

Defendant was convicted on three counts of manufacture, delivery and possession of a controlled substance. ORS 475.992(1) and (4). He appeals, assigning error to the trial court’s rulings on his motion to controvert and motion to suppress and to the court’s sentencing dispositions. We affirm the convictions but remand for resentencing.

After stating his training and experience in narcotics investigation, Officer Huffman stated in his affidavit in support of a search warrant:

“In December 1990, myself [sic] and Detective Barbero started working with an individual, herein referred to as Cl/ citizen informant.
“Cl has further provided information concerning criminal activities of persons within the community which we have corroborated and otherwise know to be factual information. Cl has two prior arrests for controlled substances, but has no pending criminal charges. During my conversations with Cl, Cl has demonstrated that Cl is thoroughly familiar with the appearance, packaging, price, and use of marijuana.
“Cl stated that Cl could purchase marijuana from [defendant] and had purchased marijuana from [him] in the past. Since December of 1990, Cl has made more than four drug buys from [defendant] under my direct supervision and that of Detective Barbero’s [sic].
“During all of the controlled buys, the controlled substance was identified that Cl said that Cl could purchase. Cl was furnished with buy money and searched prior to going to [defendant’s] residence. Cl was followed to the area of [defendant’s] residence (the start of BLM Road #40-7-11) and followed from the area of [defendant’s] residence. Cl then met myself [sic] and Detective Barbero at a prearranged location, and on all occasions Cl turned over to myself [sic] and Detective Barbero marijuana that Cl said Cl could purchase at [defendant’s] residence. I personally examined the substances on all occasions and confirmed that it was marijuana. On one of the controlled buys, Cl said that [13]*13additional subjects arrived and purchased marijuana. Cl gave a description of the subjects and vehicles. These descriptions were confirmed by my observation and that of Detective Barbero while we were waiting for Cl to complete the controlled buy. On each occasion Cl arrived at [defendant’s] residence unannounced and marijuana was always readily available; Cl observed more than one pound of marijuana remaining at [defendant’s] residence during each of these controlled buys. Cl has been present at [defendant’s] residence on at least three other occasions within the past four months when other individuals have purchased marijuana from [defendant]. The fourth controlled marijuana buy occurred within the last four days.
“Cl stated that [defendant] lived on BLM Road 40-7-11 and in the first residence on the left hand side. Cl said this was a single story wood structure with a garage. Using Cl’s directions, I drove to this area, which can be reached by travelling on Holland Loop Road in Cave Junction to Alt-house Creek Road. Proceed up Althouse Creek Road to BLM 40-7-4. Turn left on 40-7-4 and travel approximately 2.5 miles to BLM Road 40-7-11. Turn left on BLM Road 47-7-11 [sic], and proceed for approximately 1.9 miles. [Defendant’s] residence is the first residence on the left hand side. I personally drove by this residence on January 13, 1991 and confirmed the above descriptions: the dwelling is a single story wood structure with an attached garage, composition roof, and natural wood siding, and sits approximately 50 feet off the road in plain view.
. “Cl was administered a polygraph examination by Detective Lasater of the Josephine County Sheriffs Office Major Crime Unit, who is also a licensed polygrapher in the State of Oregon. * * * Detective Lasater informed me that Cl passed the polygraph examination in regards to Cl making the controlled buys from [defendant’s] residence and controlled substances always being readily available at [defendant’s] residence.” (Emphasis supplied.)

A warrant was issued on the basis of the affidavit. Police searched defendant’s residence and found drug evidence that was the basis of his convictions. Defendant moved to controvert the affidavit and to suppress the evidence found pursuant to the warrant. The trial court denied both motions, except that it excised the words “the” and “always” from the last emphasized language in the affidavit.

[14]*14Defendant first assigns error to the trial court’s refusal to allow him to question Huffman concerning the truthfulness of the statement that “Cl voluntarily came forward with the information regarding local drug traffickers [including defendant].” (Emphasis supplied.) He argues that denying him the opportunity to question was a denial of due process. We need not decide whether he is correct because, as we discuss below on the issue concerning the motion to suppress, even if the statement should have been excised— the only remedy defendant could have obtained had he prevailed on his supplemental motion to controvert —the remainder of the affidavit established the Cl’s veracity and supported a finding of probable cause. See Franks v. Delaware, 438 US 154, 171, 98 S Ct 2684, 57 L Ed 2d 667 (1978).

Defendant next assigns error to the trial court’s ruling on the affiant’s statement that the “Cl passed the polygraph examination in regards to Cl making the controlled buys from [defendant’s] residence and controlled substances always being readily available at [defendant’s] residence.” (Emphasis supplied.) The evidence shows that the polygraph examination related to only two, rather than to all four, controlled buys. The state conceded that the word “the” was misleading, in that it could be interpreted to mean all four controlled buys. On the basis of the polygraph examiner’s testimony, the state also conceded that the word “always” was inaccurate and should be deleted. The trial court excised the words “the” and “always” from the affidavit.

Defendant argues that the court should have excised the entire sentence concerning the polygraph examination. He relies on State v. Harp, 299 Or 1, 9, 697 P2d 548 (1985), which stated that “the judge’s assessment [in ruling on a motion to controvert] is a process of subtraction, not addition.” Defendant reads Harp too broadly. It does not stand for the proposition that, once an inaccuracy is found in a sentence, the entire sentence must be excised, regardless of whether part of it is accurate. Rather, it rejected the suggestion in State v. McManus, 267 Or 238, 517 P2d 250 (1973), that the judge could rely on evidence outside the affidavit to consider whether the affidavit contained probable cause. Here, the trial court apparently [15]*15considered the affiant’s statement concerning the polygraph examination as partly inaccurate and then excised the words “the” and “always,” which were the source of that inaccuracy. It did not insert any new information into the affidavit, for example, by replacing “the” with “two.” See State v. Middleton, 79 Or App 794, 798, 720 P2d 1310,

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Related

Franks v. Delaware
438 U.S. 154 (Supreme Court, 1978)
State v. Smith
627 P.2d 26 (Court of Appeals of Oregon, 1981)
State v. Young
816 P.2d 612 (Court of Appeals of Oregon, 1991)
State v. Harp
697 P.2d 548 (Oregon Supreme Court, 1985)
State v. Thacker
496 P.2d 729 (Court of Appeals of Oregon, 1972)
State v. McManus
517 P.2d 250 (Oregon Supreme Court, 1973)
State v. Wilson/Helms
733 P.2d 54 (Court of Appeals of Oregon, 1987)
State v. Coffey
788 P.2d 424 (Oregon Supreme Court, 1990)
State v. Carlile
619 P.2d 1280 (Oregon Supreme Court, 1980)
State v. Middleton
720 P.2d 1310 (Court of Appeals of Oregon, 1986)
State v. Coffey
764 P.2d 605 (Court of Appeals of Oregon, 1988)
State v. Shefler
847 P.2d 417 (Court of Appeals of Oregon, 1993)

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Bluebook (online)
853 P.2d 1368, 121 Or. App. 10, 1993 Ore. App. LEXIS 960, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thorfinnson-orctapp-1993.