Langham v. State

1990 OK CR 9, 787 P.2d 1279, 1990 Okla. Crim. App. LEXIS 12, 1990 WL 17038

• Court: Court of Criminal Appeals of Oklahoma
• Decided: February 22, 1990
• Docket: F-88-231
• Status: Published

Opinions

OPINION

JOHNSON, Judge:

CHARLES LANGHAM, appellant, was tried at a non-jury trial, upon stipulation by the parties to the facts for the crime of Possession of Controlled Dangerous Substance with Intent to Distribute in violation of 63 O.S.1981, § 2-401; Possession of a Weapon While Committing a Felony in violation of 21 O.S.1981, § 1287; and Maintaining a Place Where Controlled Dangerous Substances are Kept in violation of 63 O.S.1981, § 2-404, in Case No. CRF-86-6674 in the District Court of Oklahoma County. Appellant was represented by counsel. The judge found appellant guilty of Possession of Cocaine With Intent to Distribute and sentenced him to ten years imprisonment. From this judgment and sentence, appellant appeals.

On December 9, 1986, a search warrant was executed at 200 Northeast 14th, Apartment B-3, in Oklahoma County, Oklahoma. Pursuant to the warrant, Detective Ed Kil-librew entered the apartment and observed three people inside, including appellant. The residence was searched. Appellant was arrested and during a pat-down search, seventy-nine (79) sealed plastic packets of rock cocaine were found in his front-left jacket pocket.

Detective Glen Ring, who assisted on the execution of the warrant, found a .38 caliber derringer and $385.00 on appellant’s person. The money was in denominations of five, ten and fifty dollar bills. Included in the money was evidence money which had been used earlier to make an undercover purchase. Finally, various and sundry drug related items were found in the apartment.

In his sole proposition of error, appellant contends that the trial court erred in overruling his motion to suppress the evidence. Relying on Merry v. State, 766 P.2d 1377, 1379 (Okl.Cr.1988) and Guthrey v. State, 507 P.2d 556, 560 (Okl.Cr.1973), appellant asserts that the affidavit underlying the search warrant was impermissibly vague.

In Merry, a majority of this Court stated that different tests are applied to determine the validity of a search warrant, depending on whether a state or federal constitutional claim is raised. Id. at 1379. If a federal constitutional claim is raised, the “totality of the circumstances” test enunciated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) is to be applied. However, if a state constitutional claim is raised, the test set forth 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), which requires that the State show the informant was reliable and his information credible, is to be applied. Contra Long v. State, 706 P.2d 915, 916 (Okl.Cr.1985).

Upon further review however, we find that the “totality of the circumstances” approach is far more practical with treatment of probable cause than is any rigid demand that specific tests be satisfied by every informant’s tip. As the Supreme Court stated in Gates, probable cause is a fluid concept, turning on the assessment of probabilities in particular factual contexts not readily, or even usefully, reduced to a neat set of legal rules. Gates, 462 U.S. at 231-32, 103 S.Ct. at 2328-29, 76 L.Ed.2d at 544. Furthermore, rigid legal rules are ill-suited to an area of such diversity as informant’s tips. One simple rule will not cover every situation. Id. See also Foster v. State, 742 P.2d 1131, 1133 (Okl.Cr.1987). For these reasons, we expressly abandon the Aguilar-Spinelli “two-pronged test” insofar as it applies to state constitutional claims, and in its place, we adopt the totality-of-the-circumstances analysis. To the extent the rationale of Merry v. State, 766 P.2d 1377 (Okl.Cr.1988); Corley v. State, 713 P.2d 12 (Okl.Cr.1986); Guthrey v. State, 507 P.2d 556 (Okl.Cr.1973) and Mills v. State, 594 P.2d 374 (Okl.Cr.1979) is inconsistent with this opinion, they are hereby expressly overruled, and we continue to adhere to our decisions in DeGraffv. State, 2 OkI.Cr. 519, 103 P. 538 (1909) and Long, Supra, as to the proper interpretation of the Oklahoma Constitution.

Under the totality-of-the-circumstances approach, the task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332-33, 76 L.Ed.2d at 548. Furthermore, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Id.

In the present case, Detective Killi-brew presented an affidavit to a magistrate on December 9, 1986. In the affidavit, Detective Killibrew provided: his assignment and experience; the information received from the confidential informant; that a controlled purchase had already been made from the location to be searched; that the informant observed a substantial quantity of contraband at the location; the length of time he had known the informant; and the past performance and reliability of the informant. Without holding that this affidavit is sufficient for all cases, we do find in the present case that the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant.

Finding no error, the judgment and sentence is AFFIRMED.

LUMPKIN, J., concurs. PARKS, P.J., and BRETT, J., concur in result. LANE, Y.P.J., specially concurs.