Appeal from Circuit Court, Multnomah County. Charles S. Crookham, Judge. No. C-71-12-3856 CR.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for respondent.
Fort, Judge. Schwab, Chief Judge, and Langtry, Judge.
This case arises out of the granting by the circuit court of defendant's motion to suppress evidence seized by the police pursuant to a search warrant issued out of the Portland Municipal Court, and the state appeals.
The affidavit for the warrant stated:
"That I am a police officer of the Portland Police Bureau assigned to the Narcotics detail, and have investigated numerous cases of violation of the narcotics and dangerous drugs laws in the metropolitan Portland area during recent years;
"That on November 1, 1971, I was in contact with a person who has, in the past, furnished myself and other members of the Portland Police Bureau Narcotic detail with a considerable amount of information regarding narcotics and the illicit trafficking of narcotics in the City of Portland;
"That I know the informant to be reliable because the information given to me and to other members of the Portland Police Bureau Narcotic detail, by this informant, has, in the past ten months, led to the seizures of narcotics and/or dangerous drugs on three occasions and to the arrests of three persons and, further, the informant has furnished me and other members of the Narcotic detail with information regarding the identity
and activities of known narcotics users and dealers which I have verified, in conjunction with other officers, by investigation and/or personal knowledge;
"That the informant told me that the informant has, within the past 48 hours, been present in the residence at 5814 NE 17th Avenue, Portland, Multnomah County, Oregon. That the informant, while present therein, observed the occupant, Rennia Wright, possess a quantity of heroin, a narcotic drug. The informant further advised that the informant, on previous occasions, has observed Rennia Wright's friend, Carole Young, also possess heroin in the premises. The informant further advises that Rennia Wright has discussed the illicit heroin traffic with the informant in the presence of Carole Young on several occasions. The informant further advises that on previous occasions, the informant has observed Rennia Wright to possess heroin and to transport heroin in his, Rennia Wright's, personal automobile, a white, 1971 Cadillac, bearing Oregon license plates FFF-040. The informant stated that the informant knows that Rennia Wright has concealed heroin in this vehicle in the past and believes that heroin is presently concealed in it. The informant also stated that Rennia Wright has also indicated that he conceals heroin in the yard outside the residence of 5814 NE 17th Avenue and believes that Rennia Wright presently has heroin so concealed;
"That the said informant has considerable knowledge of what heroin looks like and how heroin is packaged and sold and has, in the past, used heroin;
" That the said informant advises that Rennia Wright, whom I personally know, and Carole Young, whom I personally know, both reside at 5814 NE 17th Avenue. That I have, on numerous occasions, observed both subjects to enter and leave the premises and further, that I was present when a search warrant was served on 5814 NE 17th
Avenue on October 5, 1971, which resulted in the arrest of Carole Jean Young for Possession of Narcotics and Dangerous Drugs. During the search, numberous [sic] personal items of Rennia Wright were found throughout the apartment ;
"That the said informant advises that the residence of Rennia Wright and Carole Young, located at 5814 NE 17th Avenue, is a brown one-story wood frame duplex located on the East side of NE 17th Avenue. That the unit of the said Rennia Wright and Carole Young is the one to the South end and has it's [sic] own street number of 5814 NE 17th Avenue;
"That I am personally familiar with the premises of 5814 NE 17th Avenue and know it to be as described by the said informant;
"That based on the foregoing, I have probable cause to believe that there is located in the above-described premises, and the aforesaid described automobile and on the persons of the occupants of that said house, Rennia Wright and Carole Young a quantity of narcotics, to-wit: heroin and I therefore pray the above entitled Court to issue a Search Warrant to examine the above described premises, including the surrounding yard area and persons and search for the above described contraband property." (Emphasis supplied.)
Based thereon a judge of the Municipal Court of Portland issued a warrant requiring
"* * * immediate search of the person of the said Rennia Wright and Carole Young and in the premises situated at 5814 NE 17th Avenue, including the surrounding yard & a white 1971 Cadillac, Oregon license FFF-040 in the City of Portland, County and State aforesaid for the following contraband
property. Heroin, a narcotic drug, and narcotics ...