On review from Court of Appeals.
Gary D. Babcock, Public Defender, Salem, argued the cause and filed briefs for petitioner.
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.
The defendant was indicted for the possession of marihuana and lysergic acid diethylamide. He filed a motion to suppress as evidence the drugs which had been seized pursuant to a search authorized by a warrant. The warrant was based upon a police officer's affidavit which set forth information concerning the possession of drugs by the defendant. The information had allegedly been given to affiant by an unnamed person who in the past had furnished reliable information to the police concerning the possession of drugs by others. Defendant also filed a motion to controvert the warrant by challenging the existence of the informant and the reliability of the information which he purportedly gave. No affidavit was filed with this motion setting forth facts controverting the affidavit
for the warrant. The two motions were merged and heard together by the circuit court.
At the hearing, the affiant was called as a witness by the defendant. During a short period of questioning, evidence was given which purported to substantiate the information in the affidavit for the warrant. The defendant then requested the trial judge to take the witness into chambers with the court reporter for a private hearing and to ask him certain questions which the parties agreed might tend to identify the informant. The state and the witness then indicated to the trial judge that if such procedure were adopted, they would assert their privilege not to disclose the identity of the informant under the doctrine of McCray v. Illinois, 386 U.S. 300, 87 S Ct 1056, 18 L Ed 2d 62 (1967). The trial judge indicated he thought the suggested method of procedure was reasonable and that, in the absence of willingness on the part of the state and the witness to participate in such a proceeding, he had no basis upon which to determine whether the informant in fact existed or whether the purported information was reliable. He, therefore, quashed the evidence and the state appealed. The Court of Appeals reversed the trial court, 11 Or App 560, 503 P2d 514 (1972). This court accepted review.
The affidavit for the warrant is sufficient on its face in every respect. The issue is whether the trial judge acted within his authority in quashing the evidence because of the unwillingness of the state and the witness to disclose in a private proceeding information which might disclose to the judge and the court reporter the identity of the informant. There is no issue concerning the propriety of conducting the examination of the affiant without the defendant and his
counsel being present since the right to be present in person and by counsel was waived by defendant. Neither is there any question concerning the propriety of the motion being heard by the trial judge rather than by the magistrate who issued the warrant.*fn1 The motion was heard by the trial judge pursuant to stipulation of the parties.
The reasoning of the opinion of the Court of Appeals ran thusly: (1) defendant had the burden of establishing the falseness of the facts set forth in the affidavit for the warrant; (2) there was no evidence submitted which tended to prove that the informant did not exist or that the information was unreliable and the affidavit, as well as the affiant's in-court testimony, indicated the informant did exist and that the information was reliable; (3) therefore, defendant did not carry his burden.
The defendant argues that if no detailed inquiry is possible of an affiant, the police are, in effect, the sole judges of probable cause to issue warrants because it is virtually impossible for a defendant to disprove the existence or reliability of an unidentified person. On the other hand, the state argues that no preliminary showing has been made by the defendant of any lack of good faith, of accuracy or of truthfulness on ...