State v. Strubhar/Jackson

728 P.2d 928 (1986) 82 Or.App. 560

STATE of Oregon, Appellant,
v.
JIMMY REVES STRUBHAR, Respondent. State of Oregon, Appellant,
v.
Patricia Ann Jackson, Respondent.

8506-1179, 8507-1488; CA A37512, CA A37513.

Court of Appeals of Oregon.

Argued and Submitted April 25, 1986. Decided December 4, 1986. Reconsideration Denied January 16, 1987.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause, for appellant. With him on brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Diane L. Alessi, Deputy Public Defender, Salem, argued the cause, for respondents. With her on brief, was Gary D. Babcock, Public Defender, Salem.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

RICHARDSON, Presiding Judge.

The state appeals an order suppressing marijuana seized pursuant to a warrant. The evidence was suppressed following a determination that the affidavit upon which the warrant was issued alleged facts insufficient to create probable cause that marijuana could be found on the premises.

Relevant portions of the police officer's affidavit state:

"In the month of February 1985, I received information from a confidential reliable informant (CRI) that Jimmy Strubhar had marijuana for sale at his residence located at 915 S. Davidson, Albany * * *. The CRI pointed out the residence to me and a check with the Department of Motor Vehicles' records showed Jimmy Reeves Strubhar with [that address].

"In the month of June 1985, * * * [t]he CRI told me that Jimmy Strubhar was now living at 915 7th Avenue, Albany, Oregon. The CRI drove by the house with me and pointed it out as the Jimmy Strubhar's residence. * * *

"In the past seventy-two (72) hours, I was contacted by the CRI. * * * [T]he CRI told me that the CRI has been associated with Jimmy Strubhar for the past forty-five (45) days. The CRI advised that Jimmy Strubhar has in the past forty-five (45) days had marijuana available, for sale, at his residence on 7th Avenue. The CRI advised me that in the past seven (7) days the CRI has observed over one-half (1/2) pound of marijuana within the Jimmy Strubhar residence. The CRI has in the past used marijuana and is familiar with its color and odor. The CRI has supplied information to me in the past that has resulted in the execution of two (2) search warrants resulting in three (3) felony arrests related to controlled substances.

"I checked with Pacific Power and Light Company in Albany, Oregon * * *. [C]ompany records showed Jimmy R. Strubhar as the subscriber for 915 7th Avenue, Albany, Oregon, with a beginning account date of May 3, 1985."

Sufficiency of a search warrant at the time these events occurred was governed by former ORS 133.545(3).^[1] That provision required that an application for a search warrant be supported by

"* * * one or more affidavits particularly setting forth the facts and circumstances tending to show that the objects of the search are in the places, or in the possession of the individuals, to be searched. If an affidavit is based in whole or in part on hearsay, the affiant shall set forth facts bearing on any unnamed informant's reliability and shall disclose, as far as possible, the means by which the information was obtained."

The statute is intended to codify the former federal Aguilar/Spinelli test^[2] and requires affidavits grounded on information provided by unnamed informants to set forth (1) the basis of the informant's knowledge and (2) facts showing the informant's "veracity." State v. Villagran, 294 Or. 404, 409, n. 3, 657 P.2d 1223 (1983); State v. Christen/Hankins, 79 Or. App. 774, 720 P.2d 1303 (1986); State v. Smith, 73 Or. App. 800, 700 P.2d 311 (1985); State v. Middleton, 73 Or. App. 592, 700 P.2d 309, rev. den. 299 Or. 522, 702 P.2d 1112 (1985); State v. Horwedel, 66 Or. App. 400, 674 P.2d 623, rev. den. 296 Or. 638, 678 P.2d 739 (1984). Defendants argue that the trial court ruled correctly in finding that the affidavit supporting the search warrant failed the veracity portion of the test. Defendants also assert that information regarding the presence of marijuana in defendant's residence was "stale." We disagree.

Affidavits in support of warrants should be tested in a common sense, nontechnical manner, with an examination of facts recited and the inferences that can be drawn from the facts. State v. Age, 38 Or. App. 501, 503, 590 P.2d 759 (1979). In State v. Mellinger, 52 Or. App. 21, 627 P.2d 897 (1981), we held that the reliability of an unidentified informant may be established by a recital of facts showing that the informant has previously proven reliable. See also State v. Nehl, 19 Or. App. 586, 528 P.2d 553 (1974), rev. den. (1975); State v. Thacker, 9 Or. App. 250, 496 P.2d 729 (1972). The affidavit in this case stated that the informant had provided information which had led to three prior felony arrests. "The reliability of past information does not solely depend on whether the affidavit recites that the previously supplied information resulted in convictions." State v. Mellinger, supra, 52 Or. App. at 26, 627 P.2d 897. Additionally, the information from the informant about the residence of defendants and the change of residence was corroborated by the police officer from an independent source. We conclude that the reliability of the informant was sufficiently supported by the affidavit.

Defendants argue that the information in the affidavit was stale and therefore insufficient to support probable cause. In State v. Gribskov, 45 Or. App. 403, 405, 608 P.2d 593, rev. den. 289 Or. 209 (1980), we stated:

"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. * * *"

The presence of a substantial quantity of drugs, possession of drugs by someone who lives on the premises to be searched and a prior history of drug activity at that location support the inference that drugs will be present there at a later date. State v. Ingram, 251 Or. 324, 445 P.2d 503 (1968); State v. Koppenhafer, 59 Or. App. 213, 650 P.2d 981, rev. den. 294 Or. 149, 655 P.2d 179 (1982); State v. Scheer, 49 Or. App. 937, 620 P.2d 973 (1980); State v. Kittredge/Anderson, 36 Or. App. 603, 585 P.2d 423 (1978).

Here, the informant observed more than one-half pound of marijuana at defendants' residence seven days before the issuance of the affidavit. The informant indicated also that marijuana was available for sale over a 45-day period at defendants' home. Although it is possible that one-half pound of marijuana might be consumed or sold in a seven-day period, it is more likely than not that marijuana would still be on the premises seven, or even ten days later, because, as the affidavit demonstrates, there was continuous drug activity at defendants' residence. Because marijuana was on sale there over a 45-day period before the informant's statements to the affiant, it is reasonable to infer that it would also be available there on the date the warrant was executed.

The affidavit satisfies the requirements of former ORS 133.545(3) and the state and federal constitutions. See State v. Horwedel, supra.

Reversed and remanded.

NOTES

[1] ORS 133.545 was amended by the legislature in 1985. Or. Laws 1985, ch. 344, § 1. Subsection (3) is now numbered subsection (4).

[2] When ORS 135.545 was adopted, the federal constitutional sufficiency of an unnamed informant was evaluated under the "two pronged test" taken from Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). The United States Supreme Court has since rejected the Aguilar/Spinelli test in favor of a less restrictive "totality of circumstances" test. See Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). ORS 135.545, however, still requires that a supporting affidavit containing information from an unnamed informant meet the Aguilar/Spinelli test. A warrant sufficient under the Oregon statutory standard automatically meets the new federal standard. State v. Horwedel, 66 Or. App. 400, 674 P.2d 623, rev. den. 296 Or. 638, 678 P.2d 739 (1984).