Appeal from Circuit Court, Curry County. John C. Warden, Judge. No. C-549.
William C. Tharp, Certified Law Student, Williamette University, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Thornton, Judge. Schwab, Chief Judge, and Foley, Judge.
Defendant appeals from his conviction for criminal activity in drugs, specifically for possession of marihuana. ORS 167.207. After a not guilty plea and bench trial, the circuit court found defendant guilty, sentencing him to a term of three years' imprisonment.
On appeal, defendant's sole contention is that the trial court erred in denying his motion to suppress evidence. The question for our decision is this: Can the police testify to information received from defendant's wife indicating he was carrying marihuana to demonstrate probable cause for their actions in stopping and searching defendant without a warrant and thereafter arresting him?
The facts are not in dispute, and, since this appeal centers on questions of law, they may be outlined briefly. On February 26, 1972, Deputy Sheriff Pommarane of the Curry County Sheriff's office received a call from the defendant's wife. She told the deputy that her husband was driving along a certain road, and that with him, "in his left-hand pocket," he had some marihuana. She also described the car that defendant was driving and reported the license number.
In response to this call, Deputy Pommarane contacted two other deputies and relayed the information
to them. They then intercepted defendant's car, searched the pocket his wife had specified, found marihuana and arrested the defendant.
During the hearing on the suppression motion, Deputy Pommarane testified about the call from defendant's wife. Apparently, the state intended by this testimony to establish the wife's credibility and accuracy, and to define the existence of probable cause for the warrantless search of the defendant.
Defendant insists that this testimony was inadmissible. Relying on the doctrine of marital privilege, he contends that his wife's statements could not be used against him in court in this way.
The law recognizes two distinct marital privileges: One prohibits the examination of a husband or wife for or against the other in a legal proceeding; the second bans judicial ...