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Oregon v. Swain

June 18, 1973

STATE OF OREGON, RESPONDENT,
v.
MARK ALLEN SWAIN, APPELLANT. STATE OF OREGON, RESPONDENT, V. JEFF CHARLES GOLDSMITH, APPELLANT



Appeal from Circuit Court, Clackamas County. Howard J. Blanding, Judge. Nos. 81331, 81330.

Howard R. Lonergan, Portland, argued the cause and filed the brief for appellants.

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. Langtry, Presiding Judge, and Thornton, Judge.

Foley

Defendants were accused by information of the felony of criminal activity in drugs in violation of ORS 167.207. After the charges were dismissed at the preliminary hearing stage, defendants were indicted for the same offense and were eventually convicted by the court of possession of less than one avoirdupois ounce of marihuana, a misdemeanor. ORS 167.207 (3). Their consolidated appeals raise the issue of the validity of the search warrants pursuant to which the evidence introduced against them at their trials was seized.

On September 30, 1972, Officer John Verheul, Jr., of the Clackamas County Sheriff's Department applied to a district court judge for a search warrant for defendants' residence. The affidavit in support of his application stated that on the previous day (September 29) Officer Verheul "was in contact with a reliable and confidential informant" who told him that within the past 10 days she had been in defendants' residence on at least two occasions. On the first occasion, the informant told Officer Verheul, she observed a woman in possession of a substance which she visually identified as marihuana. The informant stated that the woman (identified in the affidavit only as "Jane Doe") invited her to participate in smoking marihuana (which was already being done by other persons) and she did so. On her second visit to the residence (which occurred within 48 hours of the time of the application for the warrant), the informant told Officer Verheul that she again observed "Jane Doe"

in possession of a substance which she thought to be marihuana and that again she observed several persons smoking what appeared to be marihuana inside the residence. The informant further stated to Officer Verheul that additional marihuana was present in the residence at the time she left the residence.

The affidavit went on to state that the informant told Officer Verheul that she had had conversations with "Jane Doe" and that in these conversations "Jane Doe" had advised her that narcotics were kept for sale at the residence and were stored in other buildings on the property.

Officer Verheul stated in his affidavit that his informant had described to him defendants' residence as to appearance and location and that he had independently verified the existence of such a building at that location.

Finally, the affidavit stated that the informant had proven reliable in the past in that her information had led to at least 10 arrests for drug charges and that all of these arrests had resulted in convictions. In addition, the affidavit stated that the informant had proven her ability to identify marihuana in the past.

Before moving on to a discussion of the essence of defendants' assignment of error, we point out that the affidavit described above was sufficient to justify the district judge in issuing a search warrant for the described premises. As pointed out in Aguilar v. Texas, 378 U.S. 108, 84 S Ct 1509, 12 L Ed 2d 723 (1964), and further detailed in ...


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