Summary
In State v. Gribskov, 45 Or. App. 403, 608 P.2d 593, rev den 289 Or. 209 (1980), we upheld an affidavit which stated that the informant had observed a quantity of marijuana "more than an ounce" in possession of the occupants of the premises within 72 hours before the making of the affidavit and which described the residence and its occupant and a previous drug sale at the location.
Summary of this case from State v. WilsonOpinion
No. 18-877 (79-570), CA 15500
Argued and submitted January 23, 1980
Reversed and remanded March 24, 1980 Reconsideration denied May 8, 1980 Petition for review denied May 28, 1980 ( 289 Or. 209)
Appeal from Circuit Court, Washington County.
Donald C. Ashmanskas, Judge.
Robert C. Cannon, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were James A. Redden, Attorney General, and Walter L. Barrie, Solicitor General, Salem.
Stephen A. Houze, Portland, argued the cause and filed the brief for respondent.
RICHARDSON, J.
Reversed and remanded.
The state appeals an order suppressing marijuana seized pursuant to a warrant. ORS 138.060(3). The issue is whether the affidavit upon which the warrant was issued alleged facts sufficient to create a well-reasoned suspicion that marijuana could still be found at the described premises.
The relevant allegations are:
(1) Within 72 hours prior to the swearing of the affidavit the confidential reliable informant was inside the residence; occupied by defendant;
(2) The informant observed a quantity of marijuana "more than one ounce";
(3) The marijuana was in the possession of the occupant of the residence known to the informant as Curt;
(4) The informant on at least four prior occasions had been inside the residence and witnessed sales of various amounts of marijuana;
(5) The residence was particularly described as to its size, color and location; the occupant of the residence was also described by race, age, height and build.
Defendant sought to have the evidence suppressed because of the lapse of time between the informant's observation of the marijuana and the issuance of the warrant. State v. Scheidemann, 252 Or. 70, 448 P.2d 358 (1968); State v. Ingram, 251 Or. 324, 445 P.2d 503 (1968); State v. Kittredge/Anderson, 36 Or. App. 603, 585 P.2d 423 (1978); State v. Hoffman, 15 Or. App. 524, 516 P.2d 84 (1973), rev den (1974).
The rationale behind the staleness rule is that at the time the warrant is issued there must be probable cause for believing the items sought still exist at the designated location. The length of time permitted to elapse without destroying the basis for the reasonable belief as to the continuance of the situation as the affiant described it will vary according to the facts of each case. State v. Ingram, supra; compare, State v. Veley, 37 Or. App. 235, 586 P.2d 1130 (1978), rev den 285 Or. 1 (1979).
Defendant relies primarily on State v. Kittredge/Anderson supra; see also State v. McGee, 45 Or. App. 9, 607 P.2d 217 (1980), for his assertion that the information in the affidavit was stale. In that case a warrant was issued on the basis of an affidavit which stated merely that an informant had observed marijuana in a certain premises within the previous 96 hours. Our reason for holding that warrant insufficient was that there were no facts which would support a reasonable suspicion that the drugs would have remained. There was no statement of the guantity observed, who possessed it, who resided in the premises, or any history from which it could be inferred that a drug traffic enterprise was being conducted there.
In contrast, the present affidavit lists a quantity greater than that statutorily recognized, ORS 475.992(4)(f), as possessed for personal use, possessed by an identified occupant of the residence. The affidavit also states a history of prior drug sales at that location. Although the prior sales are indefinite as to time and persons involved, the allegation supports the inference that drugs are continually present at this residence, see State v. Fugate, Peterlla, 24 Or. App. 419, 422, 545 P.2d 922, rev den (1976).
Giving a common sense reading to this supporting affidavit, United States v. Ventresca, 380 U.S. 102, 108, 85 S Ct 741, 13 L Ed 2d 684 (1965), we conclude that probable cause existed that the controlled substance would be present at the described residence. State v. Spicer, 254 Or. 68, 456 P.2d 965 (1969); State v. Black/Black, 36 Or. App. 613, 585 P.2d 44, rev den 284 Or. 521 (1978); State v. Fugate, Peterlla, supra.
Reversed and remanded.