State v. McManus , 12 Or. App. 84 ( 1973 )

THORNTON, J.

Defendant was found guilty after a bench trial of the crime of criminal activity in drugs (ORS 167!207), namely, possession of seven marihuana seeds. The seeds were found in defendant’s automobile as a result of a search pursuant to a warrant.

On appeal defendant contends that the trial judge erred in the following particulars:

(1) In denying defendant’s motion to suppress the evidence seized under the search warrant;

(2) Because “* * * [t]he court had no jurisdiction to convict defendant of any crime because in order to be guilty of violating ORS 167.207, one must possess a usable quantity of narcotics * *

(3) In considering at the sentencing hearing Officer Wilson’s statements that defendant was a trafficker; and

(4) Because defendant’s sentence was so excessive as to constitute cruel and unusual punishment.

The search warrant was issued pursuant to an affidavit which read in pertinent part:

“I, Lucien B. Wilson, being first duly sworn, depose and say as follows:

“I am an Oregon State Police officer; that Steve McManus is known to me as a trafficker in narcotics and dangerous drugs; that I have this date, April 3, 1972 observed Steve McManus .to hand to Randall Mark Graven what appeared to be a baggie of marijuana and receive money in return; I have made approximately 40 arrests for narcotics violations and the object which McManus passed to Graven was the land ordinarily used to contain marijuana; that at that time, Steve McManus was operating a 1972 White and orange Ford Ranchero bearing Oregon license AEH 679; that I have reasonable grounds to believe that narcotics and dangerous drugs are located in the above-deseribed vehicle and on the person of the said Steve Mc-Manus and also are located in his residence at 974 E. Adams St. Burns, Oregon * *

Defendant contends here as below that the affidavit was insufficient, and that his federal and state constitutional rights were violated, in that (1) the things to be seized were not described with particularity; (2)- the affidavit failed to show criminal activity present; and (3) the affidavit was based not on probable cause but on suspicion.

The essential facts are as follows: Officer Wilson was in the office of the District Attorney of Harney County, located in the county courthouse, in midafternoon on April 3,1972. While standing by the window and looking out, he observed two automobiles pull up on the street outside, one operated by defendant, and the other by co-defendant Randall Graven. Officer Wilson saw defendant hand Graven “something plastic like a plastic baggie, or something,” and then Graven gave defendant “something that was green” resembling money. The officer had previous information that defendant used and sold “marijuana and other items.”

Based on what he had just seen, Officer Wilson applied for and obtained two search warrants, for a search of the person, automobile and residence of each '• suspect. Wilson, in the company of two other officers, then went in search of defendant, stopped his automobile on the highway and searched it. ■ In the course of the search the seven marihuana seeds were found. Defendant was arrested and transported to the Harney County Jail.

Defendant and Graven were tried jointly. Both motions to quash and to suppress the evidence seized were consolidated with the trial. Defendant did not testify or present any evidence either on trial or on his motion to suppress. The trial judge overruled defendant’s motion, and after trial to the court found defendant guilty as charged.

We hold that the trial judge did not err in denying defendant’s motion to suppress the marihuana seeds seized under the warrant. The challenged affidavit sets forth probable cause to authorize issuance of a warrant permitting the police to search defendant’s automobile. 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. In addition to detailing the “baggie” transaction, the affidavit recited the following significant additional facts: (1) that the affiant had extensive prior experience in dealing with narcotics and dangerous drug violations; and (2) that affiant knew that McManus was “a trafficker in narcotics and dangerous drugs.” This was 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 and that defendant-might well be in possession of additional contraband. State v. Keith, 2 Or App 133, 142, 465 P2d 724, Sup Ct review denied (1970).

Legal principles expounded in cases cited by defendant such as Spinelli v. United States, 393 US 410, 89 S Ct 584, 21 L Ed 2d 637 (1969), Aguilar v. Texas, 378 US 108, 84 S Ct 1509, 12 L Ed 2d 723 (1964), Nathanson v. United States, 290 US 41, 54 S Ct 11, 78 L Ed 159 (1933), and State v. Ingram, 251 Or 324, 445 P2d 503 (1968), while undoubtedly valid as abstract propositions of law governing searches and seizures, do not support a contrary holding as to the affidavit and search involved in the case at bar.

As we pointed out in State v. Miller, 2 Or App 87, 465 P2d 894, Sup Ct review denied (1970), cert denied 406 US 974 (1972), when information is acquired through personal observation of the affiant, the rule that the magistrate must be informed of some underlying circumstances on which informant based his conclusions and circumstances from which the officer concluded that the information was credible (as required by Aguilar) is not applicable.

As to Spinelli v. United States, supra, the principal authority relied upon in the dissenting opinion, we conclude that Spinelli is distinguishable from the case at bar in the following particulars, for example:

(1) In Spinelli, the suspect’s frequent travels between East St. Louis, Illinois, and St. Louis, Missouri, and his use in St. Louis of an apartment equipped with two telephones did, as Justice Harlan pointed out, “reflect only innocent-seeming activity and data.” We agree. But in the case at bar the officer actually saw what reasonably appeared to be an illicit transaction.

(2) In Spinelli the police were acting on a tip from an anonymous informant as to Spinelli’s actual gambling activities. In the instant case Officer Wilson saw the transaction personally.

Lastly, in Spinelli, at 417, we consider it significant that Justice Harlan distinguished Draper v. United States, 358 US 307, 79 S Ct 329, 3 L Ed 2d 327 (1959)—the Denver railroad station heroin case— by the fact that in Draper “* * * [independent police work in that ease corroborated much more than one small detail that had been provided by the informant * * Similarly in the case at bar what Officer Wilson observed tended to corroborate his prior information that McManus “uses and sells * * * marijuana and other items.”

As to defendant’s second assignment of error, no error is presented for review because defendant took no exception in the trial court to the matter now complained of on appeal. State v. Harville, 11 Or App 625, 504 P2d 765 (1972); State v. Burgess, 5 Or App 164, 165, 166, 483 P2d 101 (1971).

Nor do we think that the trial judge erred in receiving and presumably considering reports of defendant’s criminal activity in drugs when he imposed sentence. A presentence report may contain hearsay information, and a trial court is presumed to be capable of giving appropriate weight to unconfirmed matter contained in such reports. Moreover, there was some evidence from which the court could well have found the allegations of the presentence report as to trafficking were corroborated. It was, after all, what reasonably appeared to be a sale of drugs by defendant to Graven which led to the arrest of both. The trial judge was entitled to discount defendant’s denials of trafficking in illegal drugs in view of Officer Wilson’s testimony of having observed the transaction between defendant and Graven while looking out the. window from the district attorney’s office, and in view of Graven’s admission to Wilson (although later repudiated by Graven) that he purchased from defendant the amphetamines found at Graven’s home.

Finally, we do not believe that the trial judge erred in imposing the sentence complained of because the sentence was authorized by statute and does not constitute cruel and unusual punishment. State v. Chilton, 1 Or App 593, 465 P2d 495 (1970). While it is true that defendant received a more severe sentence than his co-defendant, this does not in itself make the sentence imposed on defendant cruel and unusual punishment. The trial court was entitled to impose a more severe sentence on defendant since there was evidence from which the court could have and did conclude that defendant sold Graven the amphetamines which the latter was convicted of possessing.

Affirmed.