State v. Oropeza

545 P.2d 475, 97 Idaho 387, 1976 Ida. LEXIS 281

• Court: Idaho Supreme Court
• Decided: January 12, 1976
• Docket: 11542
• Status: Published

Opinions

McQUADE, Chief Justice.

Defendants-appellants Jose Luis Oropeza and Gail Ann Oropeza were found guilty of unlawful possession of a controlled substance (heroin) in violation of I.C. § 37-2732(c)(1) after a jury trial. We reverse the judgment of conviction, finding that appellants’ motion to suppress evidence should have been granted by the district court.

On May 5, 1973, Sergeant Gary Twedt of the Canyon County City-County Narcotics Division, appeared before a magistrate and filed an Affidavit for Search Warrant. Twedt swore to personal knowledge that:

(1) on that day a state narcotics agent had purchased heroin from an individual known to have obtained the narcotic from person or persons unknown at a particularly described residence; and,

(2) a police surveillance corroborated the transaction.

A warrant was issued authorizing the search of that particularly-described residence, and all adult persons and motor vehicles found on the premises. The next day, May 6, law enforcement officers undertook surveillance of the premises in anticipation of executing the search warrant. When it appeared that appellants were about to depart in a motor van with materials taken from the house, plain-clothes officers entered the property where the van was parked and attempted to stop them. One law enforcement officer of the Federal Bureau of Narcotics and Dangerous Drugs, waved his badge and drew his weapon. Jose Oropeza placed the van in reverse, accelerated, and after hitting a propane tank, came to a stop while still on the premises. The appellants were placed under arrest. They were removed from the vehicle and searched. The vehicle was then searched. A canister containing heroin was found in the glove compartment of the van. During their arraignment, the district court denied appellants’ motion to suppress the heroin. Appellants’ second motion to suppress was denied immediately before trial.

Appellants make three assignments of error. The first assignment deals with the district court’s denial of their motions to suppress the evidence. The court below erred in refusing to suppress the heroin evidence found in the van. Our reversal on this ground is dispositive of the appeal.

Appellants’ claim of illegal search and seizure is based on the fundamental guarantee that the people are to be protected from unreasonable searches and seizures. The Fourth Amendment to the United States Constitution provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and • seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Article 1, Section 17, of the Idaho Constitution is similar.¹

We must determine if the search which disclosed the heroin was conducted in violation of appellants’ federal and state constitutional rights to be secure from unreasonable searches and seizures. If so, the evidence must be suppressed, the judgment of conviction reversed, and the case remanded for possible further proceedings. First, we must determine if the search was conducted under a valid search warrant.

Sergeant Twedt’s affidavit filed to support the application for issuance of the search warrant read, in relevant part:

‘ * * * That he is the duly appointed, qualified and acting peace officer within the County of Canyon, State of Idaho, and that he has reasons to believe that certain (2) Controlled Substances, including, but not limited to, Marihuana, Heroin, Amphetamines, and Lysergic Acid Diethylamid are unlawfully being held at the residence; (3) located on old Highway 95 between Wilder and Home-dale, located Three-Tenths mile North of the Homedale Bridge on the East side of the road, a pink and white cinder block-single story building with a green roof, in Canyon County, Idaho, and all motor vehicles present, all rooms, spaces, closets, cupboards, containers, boxes, pack-’ ages, waste paper baskets, drawers, beds, outbuildings, cellars, and the persons of all adults present and the grounds thereof.

That he has probable cause to believe and is positive the same is true because of the following facts, of which he has personal knowledge: .

(4) That on May 5th, 1973, an Agent of the Idaho Bureau of Narcotics and Drug Enforcement, an Agency of the Idaho Attorney General’s Office, made a purchase of a quantity of Heroin from an individual who is known to have acquired the said Heroin from person or persons unknown at the above described residence.

(5) That surveillance conducted by officers of the City-County Narcotics Division established the above facts to be true.

(6) That a field test of the above described Heroin was conducted by the investigating officers, and said test showed positive indication of an Opiate being present in said substance.

(7) Wherefore, your affiant prays that a search warrant allowing the search of the above described residence and all motor vehicles present, all rooms, spaces, closets, cupboards, containers, boxes, packages, wastepaper baskets, drawers, beds, outbuildings, cellars, and the persons of all adults present and the grounds thereof, be issued by this Court.”

The magistrate concluded that the above affidavit provided probable cause to believe the above enumerated controlled substances were being held at the described residence and issued a warrant authorizing a search of “ . . . all motor vehicles present, all rooms, spaces, closets, cupboards, containers, boxes, packages, wastepaper baskets, drawers, beds, outbuildings, cellars, and the persons of all adults present and the grounds of the said . . . residence . . . ”

The instant warrant is to be tested by constitutional standards announced by this State and it must also be in accord with Rule 41 of the Idaho Rules of Criminal Practice and Procedure pertaining to search and seizure. That rule provides in relevant part:

“(c) ISSUANCE AND CONTENT. A warrant shall issue only on an affidavit or affidavits sworn to before a district judge or magistrate or by testimony under oath and recorded and establishing the grounds for issuing a warrant. If the district judge or magistrate is satisfied that grounds for the application exist, or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The finding of probable cause shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is factual basis for the information furnished, (emphasis added).”

This rule codifies certain standards necessary for the issuance of a valid search warrant. Affidavit(s) — or, alternatively, recorded testimony- — must be presented to the magistrate which sets forth the facts which the affiant believes establishes probable cause.² It is from the facts contained in the affidavit — which may include a recorded examination of the affiant and his witnesses under oath — that the neutral and detached magistrate makes his independent evaluation as to whether probable cause exists. Furthermore, the rule provides that probable cause may be based on hearsay evidence,³ and incorporates the two-pronged test established in Aguilar v. Texas⁴ and Spinelli v. United States,5 to measure the sufficiency of such hearsay evidence. In State v. O’Bryan,⁶ this Court explained the Aguilar-Spinelli requirements:

“Therein, the United States Supreme Court established constitutional guidelines for measuring hearsay information in a probable cause setting. The credibility test which has become known as the ‘veracity’ prong requires a showing of knowledge of some of the underlying circumstances which lead to the conclusion that the informant is credible or his information reliable. The second test, known as the ‘basis of knowledge’ prong, requires a showing of knowledge of some of the underlying circumstances upon which the informant based his conclusion.”

The magistrate must find probable cause to support the issuance of the search warrant. The quantum of information which constitutes probable cause sufficient to justify issuance of a search warrant must be measured by the facts of the particular case.⁷ We acknowledge that “. . . affidavits for search warrants . . . must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion.”⁸ The issuing magistrate’s determination “. . .of probable cause should be paid great deference by reviewing courts . . . .”⁹

Taking the above rules of law into consideration, we have examined Detective Twedt’s affidavit for a search warrant. We hold that the statements contained therein were insufficient to establish probable cause for the issuance of the search warrant. Twedt swore to personal knowledge that on a specific day, an agent of the state Bureau of Narcotics and Drug Enforcement made a purchase of a quantity of heroin from an unnamed person who was “known” to have acquired the heroin from person or persons unknown at the Oropeza residence and that a police surveillance “. . . established the above facts to be true.”

The affidavit indicates the use of hearsay upon hearsay to establish probable cause. In certain exceptional instances, an affidavit containing such hearsay on hearsay will withstand attack.¹⁰ To do so, facts indicating: (1) The reliability of the initial source and the sufficiency of the supporting circumstances as to the existence of probable cause; and (2) The reliability of the source of the information to the affiant, must be placed in the affidavit so that the magistrate may make his determination of probable cause.¹¹ Not only must facts be set forth in the affidavit indicating the reliability of the affiant’s source, a state narcotics agent, but facts ■must be set forth to test the reliability and credibility of the source of the affiant’s source, i.e., the unnamed individual who allegedly secured the heroin at the Oropeza residence. The affidavit fails to set forth facts relating to reliability of this unnamed person.

We find no specification in the affidavit as to a date or period of time during which the transaction at the Oropeza residence between person or persons unknown and the unnamed person selling the drug to the narcotics agent took place; nor, can we draw any justifiable inference as to a specific time from the facts contained in the affidavit. An affidavit must provide facts sufficient to create probable cause for the belief that the forbidden articles are within the place to be searched at the time the search warrant is requested. The sufficiency of proof necessary to create such probable cause may vary depending upon the facts of the case and the particular nature of the article (s) to be seized. In the instant case, dealing as we are with dangerous drugs, and the possibility of a search of a residence together with all persons and vehicles therein located, some particularity as to time must be made so as to enable the magistrate to make his determination of present probable cause for the issuance of the search warrant. The instant affidavit did not comport with this requirement.¹²

Because the motion to suppress was improperly denied, the judgment of conviction is reversed and the case is remanded for further proceedings.

DONALDSON, and BAKES, JJ., concur.

1 . Art. 1, § 17, Idaho Const.: “Unreasonable searches and seizures prohibited. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue without probable cause shown by affidavit, particularly describing the place to be searched and the person or thing to be seized.” This provisions is “substantially the same as (that) of the United States Constitution.”: State v. Peterson, 81 Idaho 233, 236, 340 P.2d 444, 446 (1959). Accord, State v. Arregui, 44 Idaho 43, 254 P. 788 (1927).

2 . See I.C. §§ 19-4403 and 19-4405 ; State v. Constanzo, 76 Idaho 19, 276 P.2d 959 (1954) ; People v. Padilla, 182 Colo. 101, 511 P.2d 480 (1973).

3 . See United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) ; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) ; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

4 .378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729 (1964). “Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, the 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, . . . was ‘credible’ or his information ‘reliable’.” Citations omitted.

5 . 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

6 . 96 Idaho 548, 531 P.2d 1193, 1197 (1975).

7 . Cf. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) ; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

8 . United States v. Ventresoa, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965).

9 . Spinelli v. United States, supra n. 5, 393 U.S. at 419, 89 S.Ct. at 591, 21 L.Ed.2d at 645.

10 . See People v. Cohn, 30 Cal.App.3d 738, 106 Cal.Rptr. 579 (1st Dist.1973) ; United States v. Roth, 391 F.2d 507 (7th Cir. 1967). But cf. Madden v. State, Ind., 328 N.E.2d 727 (1975).

11 . See United States v. Smith, 462 F.2d 456 (8th Cir. 1972) ; United States v. Carney, 328 F.Supp. 948 (Del.1971), affmd. 455 F.2d 925, (3rd Cir. 1972) ; United States v. McCoy, 478 F.2d 176 (10th Cir. 1973), cert. den., 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62 (1973) ; United States v. Fiorella, 468 F.2d 688 (2nd Cir. 1972), cert. den., 417 U.S. 917, 94 S.Ct. 2622, 41 L.Ed.2d 222 (1974), reh. den., 419 U.S. 885, 95 S.Ct. 156, 42 L.Ed.2d 128 (1975) ; United States v. Carmichael, 489 F.2d 983 (7th Cir. 1973).

12 . See People v. Padilla, 182 Colo. 101, 511 P.2d 480 (1973) ; Webb. v. Commonwealth, 339 S.W.2d 177 (Ky.1960).