State v. Oropeza
| Citation | 97 Idaho 387,545 P.2d 475 |
| Decision Date | 12 January 1976 |
| Docket Number | No. 11542,11542 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Jose Luis OROPEZA and Gail Ann Oropeza, Defendants-Appellants. |
| Court | United States State Supreme Court of Idaho |
Richard S. Udell of Derr, Derr, Walters & Cantrill, Boise, for defendants-appellants.
W. Anthony Park, Atty. Gen., Lynn Thomas, Deputy Atty. Gen., Boise, for plaintiff-respondent.
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 norcotic 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 seizure. 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 Homedale, 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, packages, 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:
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. Texas 4 and Spinelli v. United States, 5 to measure the sufficiency of such hearsay evidence. In State v. O'Bryan, 6 this Court explained the Aguiler-Spinelli requirements:
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...
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