DEITS, J.
Reversed and remanded.
Durham, J., dissenting.
DEITS, J.
Defendants were charged with unlawful delivery and unlawful possession and delivery of a controlled substance and endangering the welfare of a minor. ORS 475.992; ORS 163.575. The state appeals from the trial court's order granting defendants' motion to suppress evidence seized during a search conducted pursuant to a warrant. We reverse and remand.
Officer Swanson applied for a warrant to search defendants' home at 3920 Marshall Avenue in Eugene on March 15, 1991. In the supporting affidavit, Swanson recited his training and experience in drug investigations and reported that, on March 15, 1991, he had been approached by a confidential informant (CI), whom he had known for the last two months. The CI told Swanson that someone was selling cocaine from 3920 Marshall Avenue and that the CI had been going there daily for the past three weeks to buy cocaine. The CI explained to Swanson that he gave money to a third person, whom he then observed enter the house with the money and return with cocaine. Although the CI never met the seller, the third person told him that the seller was a CPA who worked out of his home. The CI told Swanson that he knew the seller drove a brown BMW. On March 15, the CI was told by the third person that the seller had over a pound of cocaine in the house.
Swanson contacted Detective Blackman of the Multnomah County Sheriff's office regarding the CI. The information that he received from Blackman was included in the affidavit supporting the search warrant:
"Detective Blackman said that approximately two years ago this [CI] provided information to the narcotics unit that was the foundation for at least two search warrants. It should be noted that this information was also used to successfully prosecute and convict two major cocaine traffickers. Detective Blackman added that the [CI], in controlled conditions, was very reliable and that all of their investigations were successful with the [CI's] assistance."
Swanson also discovered that approximately seven months earlier, a man named Rodine had been arrested outside the residence at 3290 Marshall Avenue for possession of cocaine. Rodine told the arresting officer that he had purchased the cocaine from "Charlie," who lived at that address, and that he had done so several times before, although not within the previous year. He also stated that "Charlie" was an accountant. Utility records listed defendant Charles Kapsalis as the subscriber at the Marshall Avenue address and showed that he was employed as an accountant. Swanson also confirmed that Kapsalis drove a brown BMW. The trial court concluded that the affidavit was insufficient because "[n]either [of the informants'] reliability has been established to satisfy the court," and granted defendants' motion to suppress. The state assigns error to the suppression.
To prove the reliability of information from an unnamed informant, the affidavit must set forth facts establishing (1) the reliability of the informant and (2) his basis of knowledge. ORS 133.545(4); State v. Alvarez, 308 Or. 143, 776 P.2d 1283 (1989). The first requirement can be met by showing the informant to be "credible" or by showing that the information provided is "reliable." 308 Or at 147.
The court apparently was satisfied that the basis of knowledge prong of the test was met with respect to Swanson's informant. We agree with the trial court that his basis of knowledge was adequately set forth in the affidavit. An informant's knowledge can be based on his own perceptions, actions or conversations. See State v. Fink, 79 Or. App. 590, 594, 720 P.2d 372, rev den 302 Or. 36 (1986). The CI related his experiences with the third person, his knowledge that the seller owned a brown BMW and his own actions in buying drugs at the Marshall Avenue address.
However, the trial court granted defendants' motion to suppress because it concluded that the affidavit did not establish the credibility of the CI. It stated:
"Det. Swanson's affidavit recites that [the CI] was known to him for two months, but for three weeks of this time the [CI] was buying cocaine from the Marshall [Avenue] address, apparently unknown to Det. Swanson. The court has trouble understanding why the [CI] had not been working with Det. Swanson during this three week period if he was Det. Swanson's [CI]. Again, the court views [the CI's] credibility with this in mind.
"* * * * *
"If, in fact [the CI] had provided some information in the past to Multnomah County detectives, it was at least 2 years
prior. There is no
history of truth-speaking which would entitle the Eugene police to believe in his credibility. Indeed, the fact that he was 'on his own' for three weeks without supervision from Det. Swanson and apparently without his knowledge casts grave suspicion over his credibility." (Emphasis in original.)
The state contends that the CI's credibility was established because of his past work for the Multnomah County Sheriff's office, which led to the issuance of at least two search warrants and two subsequent convictions.
In State v. Nuttall, 97 Or. App. 285, 776 P.2d 26, rev den 308 Or. 593 (1989), we held that the veracity or credibility of an informant could be established by showing that he had previously supplied information regarding drug trafficking, which had proven "reliable and accurate in every respect, through independent investigation." Although the affidavit in Nuttall was not more specific as to how the information was determined to be accurate, or when the information was supplied, we concluded that it was sufficient to allow an independent judgment of the informant's trustworthiness. Similarly, in this case, the affidavit states that the CI provided information leading to at least two search warrants and subsequent prosecutions. The police officer who worked with the CI at that time stated that "all their investigations were successful with the [CI's] assistance." Those factors combine to provide a sufficient basis to conclude that the CI was trustworthy. State v. Young, 108 Or. App. 196, 816 P.2d 612 (1991), rev den 314 Or. 392 (1992); State v. Strubhar/Jackson, 82 Or. App. 560, 728 P.2d 928 (1986), rev den 302 Or. 657 (1987).
We do not agree with the dissent that the affidavit fails to set forth sufficient "particularized facts" to establish the CI's reliability. We have not previously required the level of detail as to informant's past activities that the dissent would require. Neither have we held as a general rule that, if an informant has been used in a controlled situation, the informant's reliability is established only for other controlled circumstances.
The trial court discounted the credibility of the CI, because he waited three weeks to tell Swanson of his daily drug purchases and because his previous involvement with the Multnomah County Sheriff's office had taken place some time ago and under controlled circumstances. However, there is not a requirement that an informant's past activities showing credibility be close in time to the present activities. Further, we have never required that, in order for an informant's credibility to be assessed, the informant must have been involved in a controlled buy.
There are additional facts supporting the reliability of the CI's information. An informant's declaration against penal interest is entitled to consideration in determining the reliability of the information provided. State v. Alvarez, supra, 308 Or at 149. The weight to be given those declarations depends on the facts of each case. In this case, the CI admitted to buying cocaine over a period of time, which supports the reliability of his information regarding the details of where and how his purchases were made. Swanson also corroborated other information from the CI, which further supports the reliability of the information. See State v. Dunning, 81 Or. App. 296, 724 P.2d 924 (1986).
Including the CI's statements, the affidavit established that the CI was buying cocaine from the Marshall Avenue house through a third party, that cocaine had been purchased from that address before from someone named "Charlie," who was an accountant, that defendant Kapsalis resided at the house and his first name was Charles, that Kapsalis worked as an accountant, that the seller drove a brown BMW and that defendant Kapsalis drove a brown BMW. We conclude that the affidavit established probable cause to search defendants' residence at Marshall Avenue for evidence of cocaine distribution.
With respect to the third party, we conclude that he was an unwitting informant, as the CI related statements he made to Swanson. Ordinarily, we would examine the reliability of his information as we did the CI. See State v. Worsham, 114 Or. App. 170, 834 P.2d 1033, rev den 314 Or. 574 (1992). However, in this case, the information supplied by the CI was sufficient by itself to establish probable cause, and the additional facts from the unwitting informant neither added nor subtracted from the totality of the information provided.
We conclude that the affidavit established probable cause to support the issuance of a search warrant. The trial court erred in granting defendants' motion to suppress.
Reversed and remanded.