On Review from Court of Appeals.
H. W. Devlin, McMinnville, argued the cause for petitioners.
John H. Clough, Assistant Attorney General, Salem, argued the cause for respondent. With him on the briefs were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
In Banc. Holman, J. O'Connell, C.J., dissenting. Denecke, J., joins in this dissent.
These two criminal cases were consolidated for hearing both in the trial court and in the Court of Appeals. The trial court granted defendants' motion to suppress on the ground that the search warrant under which evidence was seized failed to describe the place to be searched with sufficient particularity. The state appealed and the Court of Appeals reversed. State v. Blackburn/Barber, 10 Or App 564, 499 P2d 1325 (1972). We granted the petition for review.
Determination of the legality of searches depends largely upon the facts of each case,*fn1 and for this reason evidence adduced at the suppression hearing will be recited in some detail. Because the trial court ruled in favor of defendants' motion without making special findings of fact, conflicts in the evidence will be resolved in accordance with the trial court's ruling.*fn2
The disputed search occurred in rooms located in the basement of a residence in McMinnville. The ground floor was occupied by the owners of the property. The basement area consisted of four rooms, plus a common lounge and bathroom. Each room was occupied by one tenant, with the exception of one room occupied jointly by Richard Welton and defendant Bruce Barber. Each of the five tenants paid his rent separately.
A street entrance to the basement on the east
side of the building led down to a short hall. The door to Apartment 1 was located on the right side of the hall. Another door, which was padlocked, was located at the end of the hall and led into a furnace room. A third door, which was unmarked and apparently always left open, was on the left side of the hall and led into the common lounge area.
As one would enter the lounge area, immediately to the left was a door leading into the room occupied by defendant Reid Blackburn. This room constituted the southeast corner of the basement, and its door was marked with the numeral 2. At the opposite end of the common room was another short hall, at the end of which was a door marked with the numeral 3. This room constituted the southwest corner of the basement, and was occupied by Frank Roberts. On the right side of the hall was a door to the room constituting the northwest corner of the basement and occupied by Welton and defendant Bruce Barber. This last door bore no numerals, although it was known by the landlord as "No. 4-5." Three cards were affixed to the door. The top card had the letters ECURB*fn3 printed on it. The middle card was a picture, and the bottom card had the words "CHANGE . . . CONTROVERSY . . . CHALLENGE" printed on it. Each of the doors (1, 2, 3, and ECURB) was equipped with a conspicuous lock.
In the early morning of August 3, 1971, a search warrant was issued describing the suspect premises as "* * * Apartment Number 2 in the basement of the residence at 240 South Davis Street, McMinnville, Oregon, said apartment having the letters ...