Appeal from Circuit Court, Harney County. Jeff D. Dorroh, Jr., Judge. No. 1010.
Irvin D. Smith, Burns, argued the cause and filed the brief for appellant.
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.
Foley, Judge. Fort, Judge. Schwab, Chief Judge, specially concurring. Langtry, Judge, joins in this specially concurring opinion. Thornton, Judge, dissenting.
Defendant was found guilty after trial to the court of the crime of criminal activity in drugs, namely possession of amphetamine pills. ORS 167.207. The court suspended the imposition of defendant's sentence and placed him on probation for three years. Defendant's appeal is based on the trial court's denial of his motion to suppress the evidence introduced at trial.*fn1
The facts are quite simple: Officer Wilson was in the office of the District Attorney of Harney County, located in the county courthouse, in mid-afternoon on April 3, 1972. While standing by the window and looking out, he observed two automobiles pull up on the street outside, one operated by defendant, and the other by one Steve McManus. Officer Wilson in his affidavit swore that he saw McManus pass to defendant what appeared to be a baggie of marihuana in return for which defendant gave to McManus paper money.
Based on this observation, Officer Wilson executed the following affidavit in support of his request for a warrant to search defendant's person, automobile and residence.
"I, Lucien B. Wilson, being first duly sworn, depose as follows:
"I am an Oregon State Police Officer who has made at least 40 arrests for narcotic violations; that Steve McManus is known to me to be a trafficker in narcotics and dangerous drugs; that on this date I observed McManus pass to Randall Mark Graven what appeared to be a baggie of marijuana in return for which Graven gave to McManus paper money; that at the said time Graven was operating a white 1962 Chevrolet 2 door bearing Oregon license 3R-1737; that I have reasonable grounds to believe that narcotics and dangerous drugs are located in the said vehicle and on the person of the said Randall Mark Graven and also at his residence located at 955 N. Egan St. Burns, Oregon."
The search warrant based upon that affidavit authorized the officers to search defendant's person, automobile and residence for narcotics and dangerous drugs.*fn2 Armed with that warrant one Officer Novotney proceeded to defendant's residence, knocked on the door, and informed defendant that he had a search warrant for the house and the car to look for the "baggie." Defendant said the "baggie" was gone. When Officer Novotney expressed his disbelief defendant told him that he had "diet pills." Officer Novotney asked to see the pills and defendant produced 15 pills which were identified at the trial as methamphetamine. Defendant
admitted to Officer Novotney that he had purchased these pills from McManus for 15 cents each. No actual search of defendant's premises took place. Defendant's ...