State v. Williams

909 P.2d 472, 184 Ariz. 405, 200 Ariz. Adv. Rep. 32, 1995 Ariz. App. LEXIS 217
Court of Appeals of Arizona·Decided September 26, 1995·No. No. 1 CA-CR 94-0155·Published·Cited by 7 cases

Opinion

OPINION

GERBER, Presiding Judge.

The state charged Kevin Brent Williams (defendant) with one count of marijuana possession and one count of drug paraphernalia possession, both class 6 felonies. Defendant waived a jury trial and submitted the matter to the trial court on a stipulated record. The trial court found defendant guilty, placed him on three years probation, and deferred designation of the offense until he completed probation.

On appeal, defendant argues that the police lacked sufficient probable cause to search his trailer and that the search warrant did not adequately describe the place to be searched. Defendant maintains that the trial judge improperly considered the evidence found in his trailer.

FACTUAL AND PROCEDURAL HISTORY

Springerville Police became suspicious of defendant after questioning Gloria Ulibarri (Ulibarri), whom they had arrested for marijuana possession. As a result of Ulibarri’s assurances that defendant sold marijuana, police presented a justice of the peace with an affidavit for a warrant to search defendant’s travel trailer. The justice of the peace issued the warrant. Once there, police discovered marijuana and drug paraphernalia, and they arrested defendant.

Subsequently, defendant filed a motion to suppress the evidence found in his trailer, contending that the police lacked probable cause for the search. The trial court denied this motion. Defendant then submitted the matter to the trial court on a stipulated record. The trial court found him guilty, sentenced him to three years of probation, and ordered him to serve one year in jail (less 156 days of pre-sentence incarceration credit).

Defendant filed a timely notice of appeal, arguing that the trial court should not have considered the drug-related evidence found in his trailer. He contends for the first time on appeal that the warrant used to search his trailer did not adequately describe the place to be searched. He also maintains that the police did not have probable cause for a search warrant.

The trial court concluded that the affidavit was legally insufficient because there were no facts supporting Ulibarri’s statement that defendant was selling marijuana, or indicating that the informant was reliable nor any facts tying the alleged marijuana sales to his trailer.1 The trial court also found, however, [407]*407that the officers’ testimony showed that them actions were made in objectively reasonable, good faith reliance on the search warrant.2 The court admitted the evidence pursuant to the good faith exception to the exclusionary rule and denied the motion to suppress.3

The court’s minute entry states:

4. However, the State has asserted that the conduct of the officers in relying on the warrant was objectively reasonable and taken in good faith, and that the evidence should be admissible under A.R.S. Section 18-3925. The counter argument is that reasonably trained police officers should have known that the affidavit was defective.
Based on the testimony of the police officers, it appears their actions were taken in good faith, and that they did not realize the affidavit was defective. It also appears that there was information available for presentation to the Justice of the Peace which would have been sufficient to establish probable cause, had it been included in the affidavit.
Further, it appears to the Court that the “totality of circumstances” test provides less guidance to the police officers than the two-pronged Spinelli test used previously. This Court cannot find that reasonably well-trained police officers should not have relied on the search warrant at issue in conducting the search of the Defendant’s trailer. ►
The Court finds that the evidence was seized by the A.C.C.E.N.T. [Apache County Cooperative Enforcement Narcotic Team] officers as a result of a good faith mistake, and that the evidence seized pursuant to the seai’ch warrant at issue is admissible under A.R.S. Section 13-3925(B).
The Defendant’s Motion to Suppress Evidence is denied.

Because we disagree in part with this analysis, we reverse.

A. Reliability of Informant

The United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), established a totality of the circumstances test to determine whether an informant’s tip establishes probable cause. Arizona has adopted Gates. State v. Buccini, 167 Ariz. 550, 556, 810 P.2d 178, 184 (1991).

The affidavit here does not satisfy this standard. The failures are multiple. It does not establish the informant’s reliability. She initially agreed to cooperate with the police to work off her own drug charge. She needed to make what the affiant officer called a “reliability buy” as part of “her deal.” Within hours of agreeing, she withdrew her offer to cooperate and made no reliability buy. Her reliability was therefore never established. An unreliable informant who lacks personal knowledge cannot provide probable cause. See Gates, 462 U.S. at 237-38, 103 S.Ct. at 2331-32.

B. Adequacy of Description

A search warrant which does not particularly describe either the place to be searched or the items to be seized is not facially valid, and the police cannot rely on it in good faith. United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984); see State v. Coats, 165 Ariz. 154, 159, 797 P.2d 693, 698 (App.1990) (a search warrant must particularly describe the place to be searched).

[408]*408Neither the warrant nor the affidavit identifies this defendant’s trailer. Its address is given in the affidavit as “7th Ave and Eager”; on the affiant’s sketch it is “7th Ave and Garth.” No “Eager” Street is shown; indeed, no other streets are shown which could be “Eager.” The affidavit describes the trailer as “small”; the sketch shows it as the largest of the four trailers surrounding Cindy Ulibarri’s residence. Cindy Ulibarri is Gloria Ulibarri’s sister. The affidavit promises that drugs are in the “residence of Cindy Ulibarri and Kevin Williams” or in the “Cindy Ulibarri and Kevin Williams trailer,” a communal residence contradicted by the affiant’s sketch showing separate residences for these separate persons. The affidavit and sketch reveal a total of five occupied trailers within the curtilage of Cindy Ulibarri’s property.

C. Good Faith Exception

While the trial court found the affidavit legally insufficient, it concluded that the officer’s conduct was objectively reasonable and in good faith pursuant to A.R.S. section 13-3925. However, the good faith exception to the exclusionary rule requires police conduct to be objectively reasonable. Leon, 468 U.S. at 923, 104 S.Ct. at 3420; Coats, 165 Ariz. at 158, 797 P.2d at 697. That standard is not met here.

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State v. Williams, 909 P.2d 472, 184 Ariz. 405, 200 Ariz. Adv. Rep. 32, 1995 Ariz. App. LEXIS 217 (Ark. Ct. App. 1995).

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