State v. Villagran

GILLETTE, J.

Defendant appeals her conviction for possession of a controlled substance, ORS 475.992, and assigns as error the denial of her motion to suppress evidence seized from her premises pursuant to a warrant. She contends that the affidavit in support of the warrant was insufficient to support a finding of probable cause in that neither the credibility of a named informant, Madsen, nor the reliability of his information was established as required by Spinelli v. United States, 393 US 410, 89 S Ct 584, 21 L Ed 2d 637 (1969), and Aguilar v. Texas, 378 US 108, 84 S Ct 1509, 12 L Ed 2d 723 (1964). In the alternative, she contends that the affidavit fails to establish probable cause that evidence of criminal activity would be found at the premises searched. We agree with this last contention and reverse.

The warrant authorized a search of the premises located on Cal Henry Road. The affidavit, made by a police officer, states in relevant part:

“That my belief [that defendant possessed a controlled substance] is based on the following facts:

“That this morning I helped serve a search warrant on property located just west of Lookingglass at which time we discovered over a ton of marijuana growing in a [double] barn located on that property. Located on the property was a house and a trailer which I helped search and which were discovered to be vacant with virtually no furniture in either structure. * * * A complete list of property taken from the property adjoining the barns and from the bams is attached hereto as Exhibit 2.

“Item #1 on Exhibit 2 mentions that the 4 cardboard boxes had been sent to ‘B&N’ Greenhouse Supply, 2575 Whistler’s Park Road, Roseburg, Oregon.

“That on September 29, 1979, I met with George Marsh in the Douglas County Assessor’s Office and went through his records with him. We determined that the owner of the property above mentioned where the items found in Exhibit 2 is Nora Villagran. I checked Nora Villagran through teletype with the Oregon Motor Vehicles Division and discovered that her last known address is 2575 Whistler’s Park Road.

“That on September 29, 1979, I ran checks with the California and Oregon Departments of Motor Vehicles and learned that Norman Lee Waterbury has a current valid Oregon license with an address of 2575 Whistler’s Park Rd., Roseburg, Oregon.

“That on September 29, 1979, George Marsh, who lives near the property searched told me that a person named Ernie Madsen had built the barn wherein a large portion of the items in Exhibit 2 were located. I spoke with Larry Frost of the Sheriffs Office today and he told me that he had spoken with Madsen on September 29, 1979, and was told by Madsen that he had built the barn for a person named Norman Waterbury. Frost also told me that Madsen said the guy he built the barn for was building an “underground” house in Umpqua which is described as being on the driveway adjacent to the driveway for the Cal Henry residence which is located at 1054 Cal Henry Road. Going up the driveway to the “underground” house, to the left of the driveway is a trailer house and a barn behind said trailer. The “underground” residence is located further down the driveway.”

Defendant first claims that there is no substantial basis for giving credence to the hearsay information supplied by Madsen. Spinelli v. United States, supra, and Aguilar v. Texas, supra, establish a “two-pronged” test to be applied in determining the sufficiency of affidavits based upon information supplied by anonymous hearsay informants. That test, as applied by the Oregon Supreme Court in State v. Montigue, 288 Or 359, 362, 605 P2d 656 (1980), relates also to named informants and requires that the affidavit set forth (1) the informant’s “basis of knowledge”; and (2) facts showing the informant’s “veracity,” either by showing that the informant is credible or that his information is reliable.

Defendant contends that there is no basis in the affidavit for making the required veracity finding. She argues that simply naming the informant is not sufficient under the rationale of State v. Montigue, supra, which she says holds that naming the informant in the affidavit was not sufficient, standing alone, to support a determination that the named informant was truthful. We do not believe the case stands for that bold proposition. In any event, the fact the informant is named is one factor tending to establish veracity. As the court did note in Montigue, by revealing the informant’s name it is more likely that he will be called as a witness and be exposed to penalties for perjury if his testimony is contrary to the information given to the affiant. 288 Or at 367. The court also noted that there was nothing in the affidavit to indicate that the named informant was a participant or accomplice in the criminal activity under investigation or other facts appearing on the face of the affidavit reflecting adversely on the reliability of the named informant. 288 Or at 366.

The factors considered by the court in Montigue to be sufficient to uphold the warrant are also present here. In addition, part of the information attributed to Madsen was independently corroborated by George Marsh, the county assessor, who told the affiant that Madsen built the barn located on the Lookingglass property. Additionally, the character of the information given by Madsen indicates no design to fabricate. He gave information to a police officer, the accuracy of which could be easily checked by observation and checking of public records. It is unlikely that a person would give false information to a police officer knowing such information could be easily checked. Considering the affidavit as a whole, we conclude that the issuing magistrate was justified in accepting the information attributed to Madsen.

Defendant next argues that there is no fact alleged in the affidavit disclosing the basis of Madsen’s knowledge that Waterbury was building an underground house on Cal Henry Road. The affidavit does not state precisely how Madsen learned of the underground house and how he determined it was being built by Waterbury. However, a common sense reading of the affidavit supports a conclusion by the issuing magistrate that the information by Madsen was based on personal observation and knowledge. He described in some detail the location of the underground house and the other structures on the property. This detail supports an inference that he had observed the house and other structures. He likely would not have been able to recite such detail had he learned about the underground house from a secondary source. See Draper v. United States, 358 US 307, 79 S Ct 329, 3 L Ed 2d 327 (1959). He also had built a barn for Waterbury on the Lookingglass property, and there is a permissible inference that he learned from that relationship that Waterbury was building a house on Cal Henry Road.

Finally, defendant argues that, assuming the informant’s statements are reliable, the affidavit does not support a conclusion that evidence of the crime of possession of a controlled substance would be located at the Cal Henry Road property. In particular, she contends the affidavit contains no factual allegations regarding the ownership of the Cal Henry Road property nor any indication why evidence of the marijuana growing operation would be found on Cal Henry Road rather than on Whistler’s Park Road, which was determined to be the mailing address of defendant and Waterbury. We agree.

In determining if an affidavit demonstrates that evidence will be found in a particular place, we have utilized the “most promising place” rule. Essentially, that rule is that probable cause to believe that certain evidence is at a particular location is established when it is shown that, under the circumstances, the designated location is the most promising place to look for the evidence. State v. Skinner, 5 Or App 259, 483 P2d 87, rev den (1971), cert denied 406 US 973 (1972); see also, Porter v. United States, 335 F2d 602 (9th Cir 1964), cert denied 379 US 983 (1965); State v. Johnson, 34 Or App 73, 578 P2d 413, rev den 283 Or 235 (1978); State v. Harris, 25 Or App 71, 547 P2d 1394, rev den (1976).

The affidavit in the present case shows that, if there was a “most promising place” to look in this case, it was at the Whistler’s Park property. The barn wherein the large quantity of marijuana was found had been built by one person whose current address was on Whistler’s Park Road and on property owned by another person who apparently lived on Whistler’s Park. Property found in the barn had once been sent to the Whistler’s Park Road address. By contrast, there is nothing in this affidavit to suggest that the underground house “being built” off Cal Henry Road is sufficiently far advanced in its construction to shelter anything, much less evidence of the sort sought here. The Cal Henry address was not, at least on the basis of this affidavit, a “promising” place, much less a “most promising” place.

The affidavit in question did not contain probable cause to search the underground house at the Cal Henry address. Evidence seized in the search of that address pursuant to the warrant should have been suppressed.

Reversed and remanded for new trial.