Christopher Boyer v. State of Arizona and Frank Eyman, Warden of Arizona State Prison
This text of 455 F.2d 804 (Christopher Boyer v. State of Arizona and Frank Eyman, Warden of Arizona State Prison) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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Christopher Boyer, an Arizona prisoner, appeals the District Court’s denial of his petition for habeas corpus. His sole contention is that the search warrant under which he was stopped, his car searched, and marijuana found in his possession seized was issued without probable cause.1 The evidence thus seized was instrumental in his conviction of violation of Arizona Revised Statutes, §§ 36-1002.05 and 36-1002.07, subsec. A, possession and transportation of marijuana. The District Court found that while the written affidavit submitted to the Arizona magistrate did not set forth probable cause,2 sufficient facts to constitute probable cause were supplied to the magistrate through oral testimony from the affiant officer. We agree and affirm.
On January 3, 1969, Officer Walter Hinson sought a warrant to search Boyer’s car from Justice of the Peace James F. Brierley. He was accompanied by Officer Lloyd Jewell. Judge Brierley immediately placed Hinson under oath, and was told that a warrant was desired against Boyer’s car because extensive personal surveillance by Hinson and Jewell indicated that Boyer was involved [806]*806in selling marijuana and an informant had told Hinson that Boyer would be driving a load of marijuana from Tucson to Flagstaff shortly after the Christmas vacation. Hinson did not identify the informer, but he told the magistrate that he considered the informer reliable because his description of Boyer and the car and his information about pot parties held at Boyer’s home coincided with data independently gathered by the police. In addition, intelligence supplied by the informer subsequent to his giving information about Boyer’s trip to Flagstaff and prior to the obtaining of the search warrant had proven completely accurate and reliable.
Hinson also told the magistrate that the informer’s tip was based on personal knowledge and close association with Boyer. Finally, the magistrate learned that the informer had previously stolen marijuana from Boyer’s car, that he had personally bought marijuana from Boyer, and that he knew of others who had made similar purchases.
In determining probable cause for the issuance of a state warrant in Arizona, magistrates may consider not only the written affidavit but also any oral testimony given to them under oath by the affiant officer. Sherrick v. Eyman, 389 F.2d 648 (9th Cir. 1968); State v. Watling, 104 Ariz. 354, 453 P.2d 500 (1969). However, the standards laid down by the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) are fully applicable. Since the informer’s tip here was a necessary element in the determination of probable cause, it must be examined to determine if it, alone, withstands the Aguilar tests. Spinelli, supra, at 415, 89 S.Ct. 584. “ . . . [T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was ‘credible’ or his information ‘reliable’.” Aguilar, supra, 378 U.S. at 114-115, 84 S.Ct. at 1514. Both these tests have been met in this case.
First, the magistrate had sufficient information to determine independently the reliability of the informer. The af-fiant officer told him of the investigations and conviction which had resulted from another tip from the same informer. He knew that the informer had given accurate information describing Boyer and his car and identifying the house where the police knew pot parties had been held. The magistrate was not told the informer’s identity, or that the informer used marijuana while in jail at the time the warrant was issued. However, neither of these facts preclude a finding that the informer was “credible” and his information “reliable.”
Second, the magistrate was given a sufficient statement of the underlying circumstances from which the informer concluded that Boyer was running a marijuana business. He knew that the informer was a close personal acquaintance of Boyer and had stolen and purchased marijuana from him. Even absent a clear statement of the method by which the informer gathered his information, the information covered Boyer’s criminal activity in sufficient detail that the magistrate could “know that he [was] relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Spinelli, supra, 393 U.S. at 416, 89 S.Ct. at 589.
We are not faced with a record devoid of the oral information which the af-fiant officer gave to the magistrate. It is clear that the magistrate was given enough information to make an independent determination that probable cause existed to issue the warrant.
Affirmed.
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455 F.2d 804, 1972 U.S. App. LEXIS 11387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christopher-boyer-v-state-of-arizona-and-frank-eyman-warden-of-arizona-ca9-1972.