State v. Munro ( 1989 )

ROSSMAN, J.,

dissenting.

Defendant was arrested pursuant to two arrest warrants and a search warrant. Therefore, in his motion to suppress, he had the burden of proving either that the warrants or the manner in which they were executed was improper. State v. Elkins, 245 Or 279, 292, 422 P2d 250 (1966). Although he met neither burden, the majority concludes that his confession must be suppressed as the product of an illegal search. The majority’s allocation of the burden of proof in this case is wrong, and I dissent.

First, as the majority points out, when a search warrant is based on hearsay statements from an unnamed informant, the officer’s affidavit must set forth the basis of the informant’s knowledge in order to establish probable cause. However,

“each affidavit must be examined in a common sense, nontechnical manner, looking at the facts recited and the reasonable inferences that can be drawn from those facts. (Citations omitted.) Further, where the existence of probable cause is marginal, the decision should be tempered by the preference to be accorded warrants.” State v. Eaton, 60 Or App 176, 181, 653 P2d 250 (1982), rev den 294 Or 460 (1983).

In this case, the supporting affidavit stated:

“I have been told by a confidential informant in the past three hours that JOHN QUINTON [sic] MUNRO is known by name and appearance to the informant and is presently hiding from police at 54 N.W. 13th Avenue, Apartment fi4, City of Gresham * * * and that JOHN QUINTON [sic] MUNRO is planning to flee this jurisdiction tonight.”

Allowing reasonable inferences, the clear sense of that language is that the informant saw and recognized defendant at the noted address and believed that he would remain there until evening. Indeed, the essence of the informant’s statement was, “I know defendant by sight and he is hiding at 514 N.W. 13th Avenue.” In distinguishing the meaning of such language from the statement, “I saw defendant at 514 N.W. 13th Avenue,” the majority reads the affidavit technically, thus defeating the preference to be accorded warrants. I would hold that, because the search warrant was valid, there is no basis upon which to suppress defendant’s confession.

Second, the majority ignores the existence of the two valid warrants for defendant’s arrest. Those warrants gave the police authority to arrest defendant in any public place or at his own residence without a search warrant. Steagald v. United States, 451 US 204, 221, 101 S Ct 1642, 68 L Ed 2d 38 (1981). Moreover, because the police acted pursuant to a warrant, defendant bore the burden of producing evidence that his arrest was illegal. State v. Elkins, supra, 245 Or at 292; see also 4 LaFave, Search and Seizure 218, § 11.2(b) (2d ed 1987); OEC 307. In this case, nothing in the record establishes that the apartment at which defendant was arrested was other than his own residence or that there was any other defect in the execution of the arrest warrants. Thus, even if the search warrant was technically defective, defendant’s arrest was still valid, and the trial court properly denied his motion to suppress.

In short, the majority has ignored the preference to be accorded searches and arrests made pursuant to warrants. Given defendant’s lack of proof, suppressing the evidence gained after his arrest is more likely to deter police from bothering with warrants than it is to deter them from improper conduct. See United States v. Ventresca, 380 US 102, 108, 85 S Ct 741, 13 L Ed 2d 684 (1965). The trial court should be affirmed.