State v. Anderson

701 P.2d 1099, 1985 Utah LEXIS 828

Opinions

HALL, Chief Justice:

Aldon S. Anderson was convicted of a violation of U.C.A., 1953, § 58-37-8(a)(i), production by cultivation of a controlled substance (marijuana). He appeals the denial of a pretrial motion to vacate the search warrant and exclude evidence seized thereunder. We affirm.

On August 26, 1982, Doug Witney, Utah County Deputy Sheriff, filed an affidavit to secure a search warrant authorizing a search of defendant’s property for cultivated marijuana plants. In the affidavit, Wit-ney stated he had received information from a previously reliable informant that a wooden fence, approximately 6 feet high and enclosing an area 100 feet by 100 feet, would be built on Anderson’s property to the north side of his home for the purpose of concealing marijuana plants being cultivated. Witney also stated that another officer, Frank Wall, had received independent verification from a previously reliable source of the construction of the fence and its purpose. Witney stated he had personally verified the construction of the fence in the described location.

Based on this affidavit, the circuit judge issued a warrant to search

the residence located Vz mile North of Maggie’s Bend on SR156 Spanish Fork, Utah County, Utah ... which the premises are described as a white frame home located on the West side of the road facing East, with a small pond on the North side of the home, for the presence of marijuana....

Three officers went to defendant’s home to search. Witney served defendant with the warrant, explained what it was, and gave defendant a Miranda warning. Another officer told defendant that he wanted to search the fenced enclosure that was approximately 100 feet north of the house. Defendant raised no objection.

Within the enclosure were found more than 100 large, well-cared-for marijuana plants. Defendant told the officers that he was being paid $30,000 to grow the plants, but he refused to name the principals out of fear for his safety. He was thereupon arrested for production and cultivation of a controlled substance.

On November 23, 1982, subsequent to a preliminary hearing and arraignment, defendant’s motion to vacate the search warrant and suppress evidence was heard. The judge found that both the affidavit in support of the search warrant and the search warrant itself, on their faces, failed to meet the tests laid down in Aguilar v. Texas,1 Spinelli v. United States,2 and Mapp v. Ohio.3 However, he found that the facts of the case did “not establish a substantial violation of defendant’s Fourth Amendment rights” and denied the motion. Defendant was found guilty in a trial before the bench.

Defendant’s first contention on appeal is that the affidavit in support of the warrant was defective on its face because the source of the information it contained was questionable and the quality of the information was inadequate. In support of his contention, defendant cites Aguilar and Spinelli, which hold that the Fourth Amendment requires that affidavits based on informants’ tips must set out underlying circumstances sufficient to (1) reveal the basis of an informant’s knowledge, and (2) establish the veracity of the informant or, alternatively, the reliability of his report in a particular case. Defendant argues that the finding of the trial judge that the affidavit on its face failed to meet the Aguilar-Spinelli test should be dispositive.

In State v. Anderton,⁴ this Court reviewed the Aguilar-Spinelli test and observed that it was not to be mechanically applied, but that a magistrate should use his common sense in issuing warrants.⁵ The Court also noted that the United States Supreme Court in Illinois v. Gates⁶ had abandoned the rigid Aguilar-Spinelli test.⁷ In so doing, the Supreme Court reaffirmed the more flexible “totality of the circumstances” standard.⁸ More recently, in Massachusetts v. Upton,9 the Supreme Court specifically reiterated that it had not merely refined or qualified the Aguilar-Spinelli test, but had “rejected it as hypertechnical and divorced from [reality].” ¹⁰

Nevertheless, in State v. Bailey,11 we observed that even under the Gates “totality of the circumstances” standard, compliance with the Aguilar-Spinelli guidelines might be necessary to establish the requisite “fair probability” that the evidence sought actually exists and can be found where the informant so states. However, in other cases, “a less strong showing of the basis of the affiant’s knowledge, veracity and reliability may be required, if the circumstances as a whole indicate that the informant’s report is truthful.” ¹²

In the instant case, the affidavit, viewed in its entirety and in a common-sense fashion, sets forth sufficient underlying circumstances to support the reliability and credibility of the informant and the conclusions of the affiant.

First of all, according to the affidavit, Witney’s informant had previously given the affiant reliable information, an accepted method for establishing an informant’s veracity.¹³ Next, the same information had been received independently by a second officer from another informant who had previously provided reliable information. Furthermore, the reliability of the informant’s information was bolstered by the detail with which the informant described the proposed enclosure.¹⁴ Finally, there was verification of the significant facts by the officer.¹⁵ Witney himself went to Anderson’s property and observed that an enclosure of the height and size and in the location described by the informants had been constructed. Witney also observed plastic material placed over the fenced area. Having personally verified all but one piece of information provided by the informant, the officer thus had reasonable grounds to believe that the remaining piece — that Anderson was growing marijuana plants inside the enclosure — was also true.¹⁶

Given this information contained in the affidavit, the magistrate clearly had “a substantial basis for ... concluding]” that probable cause existed.¹⁷

Defendant next contends that the search warrant did not give the officers authority to search the enclosure to the north of the “white frame home” described in the warrant as the place to be searched.

The adequacy of a description in a search warrant depends in every instance upon the particular facts of the case.¹⁸ In Steele v. United States,19 the United States Supreme Court described the standard by which the adequacy of a description must be judged: “It is enough if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.”²⁰

Since Steele, a number of courts considering the question have determined that a law enforcement officer’s “reasonable effort” to determine the place to be searched under a warrant may include a review of the supporting affidavit.²¹

The search warrant in the instant case identified Anderson’s property by location and further described it by description of the home and pond. It did not mention the enclosure. See supra. However, the warrant did specifically refer to the affidavit submitted by Witney to the judge in support of the petition for a search warrant. That affidavit makes it clear that the request was specifically for a warrant to search the enclosure to the north of Anderson’s home and only that enclosure. The affidavit described in detail the size of the enclosure, its location, and the materials of which it was constructed. Furthermore, the warrant was served by the affiant, Witney, along with other officers, and the search was conducted by Witney. Under similar circumstances, other courts have held the searches valid. For example, in Commonwealth v. Todisco,22 the warrant at issue described the location of a building which housed three apartments, but did not identify defendant’s apartment. The defendant claimed that the warrant did not describe the location of his apartment with sufficient particularity, and thus the search of his apartment was invalid. The court discounted this argument, reasoning that since the affidavit in support of the warrant described precisely the apartment to be searched, the warrant made specific reference to the affidavit, and the affiant executed the search warrant, the affidavit and the warrant could be read together and the search was valid.²³

We find this logic persuasive because it limits the search to the confines contemplated by the magistrate authorizing the warrant, while not invalidating searches because of minor technical deficiencies in the warrant’s description. Because the area searched (the enclosure) was the area for which probable cause had been made out, and the affidavit adequately identified that area, the search was valid.

Finally, the defendant argues that U.C.A., 1953, § 77-35-12(g), Utah’s statutory good-faith exception to the exclusionary rule, is unconstitutional. It is a fundamental rule that this Court should avoid addressing constitutional issues unless required to do so.²⁴ In light of our determination that there was sufficient probable cause to issue the search warrant and that the search was properly undertaken, we need not reach the constitutional issue.

The defendant’s conviction is therefore affirmed.

HOWE, DURHAM and ZIMMERMAN, JJ., concur.

Footnotes

1

. 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

2

. 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

3

. 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

4

. Utah, 668 P.2d 1258 (1983).

5

. Quoting from Spinelli, supra note 2, at 419, 89 S.Ct. at 590, this Court stated:

[P]robability, and not a prima facie showing, of criminal activity is the standard of probable cause.... [I]n judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, and that their determination of probable cause should be paid great deference by reviewing courts.

Supra note 4, at 1260 (footnotes omitted).

6

. 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

7

. Supra note 4, at 1260-61.

8

. [W]e conclude that it is wiser to abandon the “two-pronged test” established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations. 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.

Supra note 6, at 238 (citations and footnotes omitted) (emphasis added).

9

. — U.S. -, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984).

10

. Id. at 2087.

11

. Utah, 675 P.2d 1203 (1984).

12

. Id. at 1205-06.

13

. See McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).

14

. See State v. Romero, Utah, 660 P.2d 715, 719 (1983).

15

. See Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) (overruled on other grounds, United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); aff’d on cited point in Illinois v. Gates, supra note 6, 462 U.S. at 241, 103 S.Ct. at 2333); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

16

. See Draper, supra note 15, at 313, 79 S.Ct. at 333.

17

. See Jones, supra note 15, at 271, 80 S.Ct. at 736.

18

. See, e.g., Tucker v. State, 244 Md. 448, 224 A.2d 111 (1966), cert. denied, 386 U.S. 1024, 87 S.Ct. 1381, 18 L.Ed.2d 463 (1967).

19

. 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925).

20

. Id. at 503, 45 S.Ct. at 416 (emphasis added).

21

. See, e.g., Ellsworth v. State, Alaska, 582 P.2d 636 (1978); State v. Paschke, Mont., 527 P.2d 569 (1974); State v. Bisaccia, 58 N.J. 586, 279 A.2d 675 (1971).

22

. 363 Mass. 445, 294 N.E.2d 860 (1973).

23

. See also People v. Grossman, 19 Cal.App.3d 8, 96 Cal.Rptr. 437 (1971); People v. Salazar, 39 Colo.App. 409, 568 P.2d 101 (1977). See generally Annot., 11 A.L.R.3d 1330 (1967).

24

.State v. Wood, Utah, 648 P.2d 71 (1982); Hoyle v. Monson, Utah, 606 P.2d 240, 242 (1980).