A police officer executes a search warrant and, while searching the home of a suspected drug dealer, the phone rings. The officer picks up the phone and the unidentified person says that he is "bogeying" (which means "in need of drugs, bad" -- sort of like "jonesing," but with methamphetamine rather than heroin, I take it), wants drugs, and wants to know if the recipient of the call "has any." Is this statement by the unidentified called inadmissible hearsay?
I was impressed by Justice Morrison's discussion of this issue here, notwithstanding the fact that I'm not sure that I agree with his conclusion. (He holds that it's hearsay, but admissible.) I'm sure that part of the reason I liked the opinion is that it's written in a scholarly manner -- not too surprising, since he was on the faculty at McGeorge for six years -- and articulates and appreciates the arguments on both sides of the issue.
On the merits, the only point on which I think Fred might miss the boat a bit (and perhaps this is the reason I might tend to disagree with him) is that he believes that the statement falls more on the side of conduct than on the side of an assertion, arguing that "The caller was not intending to assert that [the defendants] were selling methamphetamine; rather, he was attempting to purchase methamphetamine." But that conclusion seems to me to beg the question. Maybe they were attempting to buy, of course. But maybe they were making a crank call, or maybe they were neighbors who hated the defendants and -- seeing the police -- made a call to help ensure that the police arrested them. That's why we need to cross-examine them; to see if they had any motive to fabricate their statement.
So I'm not entirely sure that the statement "I'm bogeying; do you have any drugs?" by an unidentified caller is really all that different than the statement "Peter and Dave sell drugs" -- which everyone concedes would be inadmissible heresay. Both are over the same phone line by the same caller. Both essentially say the same thing.
That said, a very nice opinon, even if I may perhaps disagree with the result.
