State v. Montigue

*368 LINDE, J.,

specially concurring.

Important in this case is that the court is in agreement that a search warrant is not adequately supported by an informant’s statement merely because the informant is named in the affidavit. More is required to show why the issuing judge should believe the informant besides his name. The majority and minority disagree only about whether the magistrate who issued the warrant upon the affidavit in this case made a misjudgment requiring the suppression of the evidence seized under the warrant.

The requirement that persons or places ordinarily may be searched only upon a judicial warrant issued "upon probable cause, supported by oath or affirmation” is one of the classic formulations of the American bills of rights. Or Const art I, sec 9. In deference to this constitutional guarantee, ORS 133.545 provides in part:

"(1) A search warrant may be issued only by a judge.

"(2) Application for a search warrant may be made only by a district attorney or by any police officer.

"(3) The application shall consist of a proposed warrant in conformance with ORS 133.565, and shall be supported by one or more affidavits particularly setting forth the facts and circumstances tending to show that such things are in the places, or in the possession of the individuals, to be searched. If an affidavit is based in whole or in part on hearsay, the affiant shall set forth facts bearing on any unnamed informant’s reliability and shall disclose, as far as possible, the means by which the information was obtained.” 1

*369 Central to the constitutional guarantee is that the search may be made only if a judicial officer, not a police officer or a prosecutor, is convinced by trustworthy information under oath that there is probable cause for authorizing the search. It is a judgment in which the judge cannot defer to the officer seeking the warrant; he must make it himself. When the information comes from someone other than the person who swears to it, the judge must know more than that the affiant believes the informant; the judge must know why he should believe the informant.

The judge’s responsibility for decision can hardly be capsulized in a mechanical rule that obliges him to issue a warrant whenever the name of a source of otherwise plausible statements appears in an affidavit. Nor can he be expected to decide whether to believe the hearsay recited in the affidavit by whether the informant’s name is George Washington or Ananias.

It seems that the legal significance of the informant’s name as such has become exaggerated as a reflex from the more vexing concern with affidavits relying on unnamed informants, particularly "police informants.” This concern about unnamed informants is incorporated in the last sentence of ORS 133.545(3), quoted above. Because courts have been more troubled about authorizing searches on the hearsay statements of unnamed "police informants,” the reaction seems to *370 be that when this problem is not presented, a judge needs no further assurance of the informant’s probable truthfulness before issuing a warrant. But this reflex is a patent non sequitur. The fact that a person quoted in the affidavit is not represented to be an unnamed police informant tells the judge nothing about him or her other than that he or she is not an unnamed police informant. Most people are not. Among the vast majority of people who are not "police informants” in the sense of having a frequent or ongoing relationship with the police, the judge can hardly draw an inference whose report to the police is worthy of respect and whose is not without more information than a name. Nor does it take one any further to clothe anyone who is not a "police informer” in the mantle of a "citizen informer.” Since citizenship as such is obviously not meant to be relevant, the term again is only a way of distinguishing the named informant from one who is in one or another relationship of dependence, control, or continuing collaboration with the police.

In other words, the question of sufficient identification is whether the judge can conclude that the unsworn hearsay information on which he is asked to issue a warrant, if it is not otherwise vouched for on grounds stated in the sworn police affidavit, originated in a source independent of the police itself, a source worthy of the judge’s belief. What all the "prongs” and "spurs” in the analyses quoted in this case come down to is this basic duty of the judge to make up his own mind upon the sworn submissions of the affidavit, whether to believe the statements that are claimed to constitute probable cause to search someone’s home or property or effects. A rule that a name without more suffices to support an affidavit based on hearsay would contradict the law that the judge’s responsibility for accepting or rejecting the adequacy of the "probable cause” for a search cannot be delegated to the officers who request the warrant.

In the present case the prevailing opinion postulates that the judge who issued the warrant could *371 infer from the affidavit that the named informant was a resident of Eugene, with a known address, otherwise independent of the police, who on his own initiative came forward to give the police information on his personal knowledge concerning the actions of another person known to him. We may presume that the judge did conscientiously decide for himself to draw that inference and to regard the informant as more likely truthful than not. ORS 41.360(15)-(17). Certainly the record shows nothing to the contrary. It is true that the basis for such an inference in the affidavit was minimal and the future practice should be to provide more supporting information. But the case was argued in the suppression hearing and in the Court of Appeals primarily on the issue of controverting the affidavit by evidence attacking the informant’s veracity rather than of the adequacy of the affidavit to allow the issuing judge to believe the informant’s statement in the first place. Although that issue was raised, perhaps it was slighted because the Court of Appeals had previously held that naming an informant in the affidavit is in itself sufficient to support issuance of a warrant.

That view has now been disapproved. On the record of this particular case, the issuing judge is entitled to the benefit of any doubt whether the informant was sufficiently described to deserve belief, without having anticipated today’s holding. I therefore concur in the result.

The section continues:

"(4) Instead of the written affidavit described in subsection (3) of this section, the judge may take an oral statement under oath when circumstances exist making it impracticable for a district attorney or police officer to obtain a warrant in person. The oral statement shall be recorded and transcribed. The transcribed statement shall be consid-

(Continued on following page)

*369

(Continued from previous page)

ered to be an affidavit for the purposes of this section. In such cases, the recording of the sworn oral statement and the transcribed statement shall be certified by the judge receiving it and shall be retained as a part of the record of proceedings for the issuance of the warrant.”

There is no claim here that the warrant is supported by oral statements under subsection (4). As the statute makes clear, the magistrate may consider oral statements only when it is impracticable for the prosecutor or police officer to obtain a warrant in person. When such an officer appears before the magistrate, all supporting information must be found in the written affidavit. Additional oral statements of facts in support, of the requested warrant are improper unless they are reduced to writing and sworn to as a supplemental affidavit.