State v. Gribskov

608 P.2d 593 (1980) 45 Or.App. 403

STATE of Oregon, Appellant,
v.
Curtis Lee GRIBSKOV, Respondent.

No. 18-877 (79-570); CA 15500.

Court of Appeals of Oregon.

Argued and Submitted January 23, 1980. Decided March 24, 1980.

Robert C. Cannon, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Stephen A. Houze, Portland, argued the cause and filed the brief for respondent.

Before JOSEPH, P.J., RICHARDSON, J., and SCHWAB, Chief Judge.^[*]

RICHARDSON, Judge.

The state appeals an order suppressing marijuana seized pursuant to a warrant. ORS 138.060(3). The issue is whether the affidavit upon which the warrant was issued alleged facts sufficient to create a well-reasoned suspicion that marijuana could still be found at the described premises.

The relevant allegations are:

(1) Within 72 hours prior to the swearing of the affidavit the confidential reliable informant was inside the residence; occupied by defendant;

(2) The informant observed a quantity of marijuana "more than one ounce";

(3) The marijuana was in the possession of the occupant of the residence known to the informant as Curt;

(4) The informant on at least four prior occasions had been inside the residence and witnessed sales of various amounts of marijuana;

(5) The residence was particularly described as to its size, color and location; the occupant of the residence was also described by race, age, height and build.

Defendant sought to have the evidence suppressed because of the lapse of time between the informant's observation of the marijuana and the issuance of the warrant. State v. Scheidemann, 252 Or. 70, 448 P.2d 358 (1968); State v. Ingram, 251 Or. 324, 445 P.2d 503 (1968); State v. Kittredge/Anderson, 36 Or. App. 603, 585 P.2d 423 (1978); State v. Hoffman, 15 Or. App. 524, 516 P.2d 84 (1973), rev. den. (1974).

The rationale behind the staleness rule is that at the time the warrant is issued there must be probable cause for believing the items sought still exist at the designated location. The length of time permitted to elapse without destroying the basis for the reasonable belief as to the continuance of the situation as the affiant described it will vary according to the facts of each case. State v. Ingram, supra; compare, State v. Veley, 37 Or. App. 235, 586 P.2d 1130 (1978), rev. den. 285 Or. 1 (1979).

Defendant relies primarily on State v. Kittredge/Anderson, supra; see also State v. McGee, 45 Or. App. 9, 607 P.2d 217 (1980), for his assertion that the information in the affidavit was stale. In that case a warrant was issued on the basis of an affidavit which stated merely that an informant had observed marijuana in a certain premises within the previous 96 hours. Our reason for holding that warrant insufficient was that there were no facts which would support a reasonable suspicion that the drugs would have remained. There was no statement of the quantity observed, who possessed it, who resided in the premises, or any history from which it could be inferred that a drug traffic enterprise was being conducted there.

In contrast, the present affidavit lists a quantity greater than that statutorily recognize, ORS 475.992(4)(f), as possessed for personal use, possessed by an identified occupant of the residence. The affidavit also states a history of prior drug sales at that location. Although the prior sales are indefinite as to time and persons involved, the allegation supports the inference that drugs are continually present at this residence, see State v. Fugate, Peterlla, 24 Or. App. 419, 422, 545 P.2d 922, rev. den. (1976).

Giving a common sense reading to this supporting affidavit, United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965), we conclude that probable cause existed that the controlled substance would be present at the described residence. State v. Spicer, 254 Or. 68, 456 P.2d 965 (1969); State v. Black/Black, 36 Or. App. 613, 585 P.2d 44, rev. den. 284 Or. 521 (1978); State v. Fugate, Peterlla, supra.

Reversed and remanded.

NOTES

[*] SCHWAB, C.J., vice LEE, J., deceased.