Rogers v. State

1972 OK CR 275, 501 P.2d 1401, 1972 Okla. Crim. App. LEXIS 569
CourtCourt of Criminal Appeals of Oklahoma
DecidedOctober 18, 1972
DocketNo. A-17314
StatusPublished

This text of 1972 OK CR 275 (Rogers v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rogers v. State, 1972 OK CR 275, 501 P.2d 1401, 1972 Okla. Crim. App. LEXIS 569 (Okla. Ct. App. 1972).

Opinion

OPINION

BUSSEY, Presiding Judge:

Appellant, Jimmy Rogers, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Tulsa County, Oklahoma, for the offense of Grand Larceny; his punishment was fixed at five (5) years imprisonment. Thereafter, the defendant filed an Application for Post Conviction Relief in the trial court which was denied on February 10, 1972, and from said denial of post conviction relief, a timely appeal has been perfected to this Court.

The first proposition asserts that the defendant has standing to challenge the validity of the affidavit for a search warrant in that it was directed at him personally. The trial court and this Court on appeal in Rogers v. State, Okl.Cr., 488 P.2d 369 ruled that the defendant did not have standing to object to the search in that he had no possessory interest in the property. In the most recent case dealing with the question presented, Caskey v. State, Okl. Cr., 496 P.2d 408, we stated:

“As this Court is bound by the constitutional decisions of the United States Supreme Court, the holding of this Court in Lindsey,1 supra, is modified to the ex-
tent that a person who does not hold a possessory interest in the premises searched or object seized does not have standing to challenge the legality of a search unless he was specifically the one against whom the search was directed,”

In the instant case, the affidavit for search warrant reflects that the search was directed specifically against Jimmy Rogers, the defendant, and therefore we hold that the defendant does have standing to challenge legality of the search.

The final proposition contends that the affidavit for search warrant is not sufficient being based upon an unidentified person known as the informant. The affidavit for search warrant provides in relevant part as follows:

“Affiant further states That he has received information from a source that though unidentified by name, has given information to the undersigned affiant on previous occasions and that such information has in each instance proven correct and reliable. That the source of [1403]*1403information stated to affiant that the pouch and diamonds are now kept and contained in the above described property. Affiant further states that he has talked with Mr. Dean Wright, the manager of Zales Jewelry, 4257 Southwest Blvd, Tulsa, Oklahoma and that Dean Wright stated that he personally knew and recognized the person Jimmy Rogers.
“Dean Wright stated to Affiant that on July 9, 1969 he did see Jimmy Rogers in the Zales Jewelry at 4257 Southwest Blvd, Tulsa, Oklahoma and that at that time he, Dean Wright at the request of Jimmy Rogers displayed to Rogers the pouch containing the diamonds and the diamonds therein.
“Dean Wright further stated to affiant that he, Dean Wright took the pouch with the diamonds from their hiding place to show them to the person Jimmy Rogers. Dean Wright stated that they were then kept in a drawer underneath the counter and the person Jimmy Rogers observed him as he took them from the drawer to show them to Rogers.
“The affiant further states that Dean Wright stated to him that Jimmy Rogers came back into the Zales store 4257 Southwest Blvd. Tulsa Oklahoma [sic] on July 10, 1969 in the company of another male person. Dean Wright stated that Jimmy Rogers asked for an item that made it necessary from [sic] him Dean Wright to leave the area of the counter where the drawer with the diamond pouch was located. Dean Wright stated that the male person with Jimmy Rogers stayed near that area during that time.
“Affiant further states that Dean Wright stated that after Jimmy Rogers and the other male had left that he discovered the pouch and diamonds missing. He, Wright further stated that the pouch and diamonds had been in the drawer before Jimmy Rogers and the other male person had entered the store.”

Defendant argues that the language in the affidavit that refers to the “unidentified informant” falls short of the standards required by Spinelli v. United States, 393 U. S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and Leonard v. State, Okl.Cr., 453 P.2d 257. In Pierce v. State, Okl.Cr., 491 P.2d 335, a similar proposition was before this Court when the affidavit for search warrant did not set forth in detail why the informant was deemed to be reliable. We stated:

“ * * * The defendant cites as authority Spinelli v. United States, 393 U. S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Leonard v. State, Okl.Cr., 453 P.2d 257; and, Holt v. State, Okl.Cr., 471 P.2d 957. We are of the opinion that the affidavit in the instant case is insufficient, applying the rulings of the above cited cases; however, we observe that the United States Supreme Court in the recent case of United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), again modified the standards testing the sufficiency of affidavit for search warrant. In Harris, supra, the affidavit was as follows:
‘Roosevelt Harris has had a reputation with me for over four years as being a trafficker of nontaxpaid distilled spirits, and over this period I have received numerous information [sic] from all types of persons as to his activities. Constable Howard Johnson located a sizeable stash of illicit whiskey in an abandoned house under Harris’ control during this period of time. This date, I have received information from a person who fears for their life [sic] and property should their name be revealed. I have interviewed this person, found this person to be a prudent person, and have, under a sworn verbal statement, gained the following information: This person has personal information of and has purchased illicit whiskey from within the residence described, for a period of more than 2 years, and most recently within the past 2 weeks, has knowledge of a person who purchased illicit whiskey [1404]*1404within the past two days from the house, has personal knowledge that the illicit whiskey is consumed by purchasers in the outbuilding known and utilized as the “dance hall,” and has seen Roosevelt Harris go to the other outbuilding, located about 50 yards from the residence, on numerous occasions, to obtain whiskey for this person and other persons.’

“In reversing the judgment of the Court of Appeals and reinstating the judgment of conviction, the Court stated:

‘A policeman’s affidavit “should not be judged as an entry in an essay contest,” Spinelli, supra, 393 U.S. at 438, 89 S.Ct. 600 (Fortas, J., dissenting), but rather must be judged by the facts it contains. While a bare statement by an affiant that he believed the informant to be truthful would not, in itself, provide a factual basis for crediting the report of an unnamed informant, we conclude that the affidavit in the present case contains an ample factual basis for believing the informant which, when coupled with his own knowledge of the respondent’s background, afforded a basis upon which a magistrate could reasonably issue a warrant.

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Related

Spinelli v. United States
393 U.S. 410 (Supreme Court, 1969)
United States v. Harris
403 U.S. 573 (Supreme Court, 1971)
Caskey v. State
1972 OK CR 105 (Court of Criminal Appeals of Oklahoma, 1972)
Leonard v. State
1969 OK CR 116 (Court of Criminal Appeals of Oklahoma, 1969)
Pierce v. State
1971 OK CR 488 (Court of Criminal Appeals of Oklahoma, 1971)
Holt v. State
1970 OK CR 71 (Court of Criminal Appeals of Oklahoma, 1970)
Lindsey v. State
1971 OK CR 327 (Court of Criminal Appeals of Oklahoma, 1971)
Rogers v. State
1971 OK CR 289 (Court of Criminal Appeals of Oklahoma, 1971)

Cite This Page — Counsel Stack

Bluebook (online)
1972 OK CR 275, 501 P.2d 1401, 1972 Okla. Crim. App. LEXIS 569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-v-state-oklacrimapp-1972.