Opinion
No. 37643, CA 8621
Argued November 15, reversed and remanded for new trial December 5, 1977
Appeal from Circuit Court, Lincoln County.
Courtney R. Johns, Judge.
J. F. Ouderkirk, Newport, argued the cause and filed the brief for appellant.
Donald L. Paillette, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were James A. Redden, Attorney General, and Al J. Laue, Solicitor General, Salem.
Before Schwab, Chief Judge, and Tanzer and Roberts, Judges.
PER CURIAM.
Reversed and remanded for new trial.
The defendant, having been convicted of criminal activity in drugs by possessing more than one ounce of marihuana, ORS 167.207, appeals, contending that her motion to suppress the physical evidence should have been allowed on the grounds that the affidavit for the search warrant which led to the seizure of the marihuana in question did not contain sufficient information to establish the reliability of an unnamed informant. The state relies upon State v. Broderick, 14 Or. App. 69, 511 P.2d 1281 (1973), in which we held, relying on United States v. Harris, 403 U.S. 573, 91 S Ct 2075, 29 L Ed 2d 723 (1971), that admissions against penal interest made by an unnamed informant were sufficient to establish reliability. Here, unlike in Broderick, the most that can be said for the statements attributed to the informant is that by indulging in considerable speculation it is possible to construe his statements as conceivably including admissions against interest. This is not enough.
Reversed and remanded for new trial.