Leonard v. State

1969 OK CR 116, 453 P.2d 257, 1969 Okla. Crim. App. LEXIS 462

• Court: Court of Criminal Appeals of Oklahoma
• Decided: April 9, 1969
• Docket: A-15054
• Status: Published

Opinions

BUSSEY, Judge.

Raymond Leonard, Jr., defendant below, was charged, tried, and convicted in the District Court of C 'ahorna County, for the crime of Illegal Possession of Marihuana After Former Conviction of a Felony; his punishment was fixed at ten years imprisonment in the state penitentiary, and he appeals.

The single assignment of error urged on appeal, with which we will deal, which at the timé of trial would not have required reversal under the rule enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1954), now requires reversal under the sweeping enlargement of Aguilar by the United States Supreme Court in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, delivered January 27, 1969, rendered by a divided court whose dissenting minority speaks with greater clarity and logic, based on experience, than does the technical gymnastics of the majority. As disagreeable as is our task, we must forge yet another link in the federal handcuffs placed upon state courts and law enforcement officials. The self-serving declarations of the United States Supreme Court expressing their reluctance to repudiate findings of fact made by state and federal tribunals would serve no useful purpose by its reiteration in this opinion; suffice it to say that at the present time all affidavits made by officers seeking a search warrant must be set forth in language, under oath, that the officer has personally observed a violation of law, or the possession of contraband, upon certain described premises, detailing to such a degree the minute particulars of these observations sufficient to support an arrest without a warrant, or to show the probability that contraband, or items used in the commission of crime, or fruits of crime, are on the described premises; or, if based upon hearsay information of a reliable informant, it must contain positive language, under oath, setting forth in detail why the informant is deemed to be reliable in order that the magistrate can judicially determine whether the informant is, in fact, reliable; and should further set forth in detail whether the informant, himself, observed the violation, or the presence of contraband, articles used in the commission of crime, or fruits of crime, upon the premises. If this is not done, we are advised in Spi-nelli, the warrant should not issue. If the warrant, however, is issued and contraband forming the foundation of a subsequent criminal prosecution is seized, we are advised by Spinelli that the admission of such contraband into evidence constitutes reversible error.

In complete fairness to the majority authors of Spinelli, we would point out that the opinion recognizes that under certain circumstances a reliable informant may base his statements that contraband is located on certain described premises if the affidavit discloses that the belief of the reliable informant is based upon an admission of one of the principals maintaining or keeping such contraband on the premises.

Under Spinelli, it appears that it is still permissible to supply the minute details not contained within the affidavit relating to the basis of the informer’s source of information and knowledge together with facts supporting his reliability, by establishing that oral details were disclosed to the magistrate by the affiant sufficient to warrant a finding of probable cause prior to the issuance of the search warrant. There can be little question that it would be the better practice to detail all this information in the affidavit for a search warrant in order to accurately preserve the facts and circumstances relied upon to establish probable cause. When the af-fiant for the warrant is challenged, however, the supporting information provided the magistrate in addition to the affidavit must be shown to have been communicated to the magistrate prior to the issuance of the warrant. The hearing on the motion challenging the probable cause for the issuance of the search warrant should be conducted before the trial court outside the presence of the jury.

The affidavit in the instant case falls far short of the rule enunciated in Spinelli, and we must accordingly hold that the marihuana ' found in the defendant’s apartment should not have been admitted in evidence. Recognizing that absent this vital evidence a conviction cannot be maintained, we reverse and remand this cause with instructions to dismiss. Reversed and remanded with instructions to dismiss.