672 P.2d 561 (Idaho 1983), 14346, State v. Lang

Docket Nº:14346.
Citation:672 P.2d 561, 105 Idaho 683
Opinion Judge:HUNTLEY, Justice. BISTLINE,
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Gary Alan LANG, aka Dave Gray, Defendant-Appellant.
Attorney:Robert G. Hamlin, Boise, for defendant-appellant. Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-respondent.
Judge Panel:DONALDSON, C.J., and SHEPARD and BAKES, JJ., concur. BISTLINE, Justice, dissenting.
Case Date:November 21, 1983
Court:Supreme Court of Idaho

Page 561

672 P.2d 561 (Idaho 1983)

105 Idaho 683

STATE of Idaho, Plaintiff-Respondent,


Gary Alan LANG, aka Dave Gray, Defendant-Appellant.

No. 14346.

Supreme Court of Idaho.

November 21, 1983

Robert G. Hamlin, Boise, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-respondent.

HUNTLEY, Justice.

By this appeal, we are asked to re-evaluate the standard used by the magistrates of the state of Idaho in determining the existence of probable cause for issuance of search warrants, in light of the decision of the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Gates abandoned the two-pronged test of probable cause established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), in favor of the more flexible "totality of the circumstances" analysis.

The guarantee against unreasonable search and seizure in article I, § 17 of the Idaho Constitution is substantially the same as the parallel provisions of the Fourth Amendment to the United States Constitution; nevertheless, it is for this court to decide whether to relax the standard for the demonstration of probable cause in accord with this most recent U.S. Supreme Court decision, or whether to retain the more protective criteria of Aguilar and Spinelli and their progeny as our test. 1

Page 562

[105 Idaho 684] On October 24, 1980, agent Douglas J. Williams of the Idaho Bureau of Narcotics and Drug Enforcement received a tip from an anonymous female caller. The woman stated that Gary Lang had left Boise that morning for Orlando, Florida, where he was going to purchase five to six ounces of cocaine. She said that he would be travelling under an assumed name on a flight from the Boise Airport to Denver, Colorado, with a connecting flight on Delta Airlines to Orlando. The informant also reported that Lang owned a 1971 green Volkswagen "Bug" automobile which would be parked in the long-term lot at the Boise Airport. She said this information was from her personal knowledge.

Agent Williams pursued the tip and spent that afternoon and evening verifying the information. He found a 1971 Volkswagen Bug in the long-term lot at the airport and a license check by the Department of Motor Vehicles revealed that the car was registered to the defendant. Upon inquiring at the Republic Airlines ticket counter, he discovered that the day before, one ticket for Orlando, via Denver, with the connecting flight on Delta Airlines, had been sold. The purchaser had identified himself as Dave Gray, and the ticket was used on the morning of October 24th. It was further established that only one person travelled from Boise to Orlando on that flight and route on that date. Agent Williams also went to Lang's residence, where there was no response to his knock on the door. He also noticed uncollected mail in the post box addressed to Gary Lang. Finally, the agent obtained a photograph of the defendant and a description of his vital statistics from the Idaho Criminal Identification Bureau.

Based on the above recital, agent Williams completed an affidavit and sought a warrant from a magistrate. Probable cause was determined to exist and a warrant containing a detailed description of Lang and authorizing the search of his person and any bags in his possession was issued. The warrant was executed upon Lang's return to Idaho, and cocaine, among other items, was found and seized.

Our experience with the real-life application of the two-pronged test of Aguilar and Spinelli leads us to conclude that its unduly technical approach restricts the work of law enforcement, without affording a concommitant enhancement of protection from unreasonable search and seizure. The "totality of the circumstances" approach encunciated in Gates, together with the interposition of a magistrate between officer and citizen will secure the constitutional guarantee, while insuring that inferences from the evidence are drawn by a neutral and detached mind, "instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." See Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). The approach in Gates affords the magistrate the opportunity "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." Gates, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. We thus abandon the test of Aguilar and Spinelli and adopt the "totality of the circumstances" analysis as the standard by which the magistrates of Idaho will determine the existence of probable cause.

Our decision today represents a major shift in our law of search and seizure; however, no purpose would be served by a lengthy exposition of the reasoning behind the policy change, as all the arguments are reviewed thoroughly by the United States Supreme Court in Gates.

In reviewing the findings of a magistrate, our function is limited to ensuring that the magistrate had a substantial basis for concluding that probable cause existed. Gates, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. Moreover, great deference is to be paid such determinations by reviewing courts. Spinelli, 393 U.S. at 419, 89 S.Ct. at 591, 21 L.Ed.2d at 645; State v. Oropeza, 97 Idaho 387, 391, 545 P.2d 475, 479 (1976). We find that the magistrate did [105 Idaho 685]

Page 563

have a substantial basis for his finding of probable cause in the case at bar. The opinion of the U.S. Supreme Court in Gates is particularly compelling authority in this regard, considering the striking parallels between the facts of the instant case and those in Gates.

As in Gates, the law enforcement official received an anonymous tip detailing drug and narcotics crimes. Gates, 103 S.Ct. at 2325, 76 L.Ed.2d at 540. Both tips included a variety of details, describing future activities of third parties which are not easily predictable, as well as easily obtained facts. See id. 103 S.Ct. at 2335, 76 L.Ed.2d at 552. Likewise, the information in reference to existing facts was verified by agent Williams and the future behavior described by the tipster occurred as predicted. Id., 103 S.Ct. at 2335, 76 L.Ed.2d at 551-552. Gates has reiterated the value of corroboration of details of an informant's tip by independent police work. Id., 103 S.Ct. at 2334, 76 L.Ed.2d at 550. The destination of the suspect in each case was Florida, further bolstering the finding of probable cause. In addition to being a popular vacation site, Florida is well known as a source of narcotics and other drugs. Id. 103 S.Ct. at 2334, 76 L.Ed.2d at 551. Applying the totality of the circumstances analysis to these facts, we conclude that a substantial basis for the magistrate's finding of probable cause existed.

The judgment of the trial court is affirmed.

DONALDSON, C.J., and SHEPARD and BAKES, JJ., concur.

BISTLINE, Justice, dissenting.

Only four justices joined the Gates opinion which Justice Rehnquist authored. Although that opinion is now the law insofar as the fourth amendment is concerned, it is barely the law, and I see no compelling reason for this court to so precipitately rush to embrace the views therein espoused, if in fact the majority today is doing so. I do believe that this Court, without saying so, is retreating from any of our cases which may have placed reliance upon the two-pronged test of Aguilar and Spinelli. But I was never convinced that this Court should have ever bowed down to the Aguilar-Spinelli test in the first place, 1 other than when passing on fourth amendment challenges, which is to say that the Aguilar-Spinelli test does not ipso facto apply to art. 1, § 17 of the Idaho Constitution, other than that this Court chooses to interpret and apply art. 1, § 17 as the High Court does the fourth amendment of the federal constitution.

Basically, my premise is that state supreme courts are not obliged to parrot the Supreme Court of the United States, but rather should be at least somewhat inclined to individualistic thinking and judgment. In the decade just past the High Court has led the fifty states on a merry chase indeed in the extremely critical area of capital sentencing. As Justice Shepard of this Court so eloquently phrased his concern:

"With all deference and respect to our brethren on the Bench of the United States Supreme Court, I regret that I can neither understand what they have said as a court, where they now stand as a court or where they may be going in this important area of the law involving capital cases and the death penalty."

State v. Lindquist, 99 Idaho 766, 775, 589 P.2d 101, 110 (1979).

The judgments handed down by the High Court earlier this year leaves the area perhaps muddier than it was. See Part IIB, opinion of Justice Marshall, joined by Justice Brennan, Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983): "If this is all Gregg v. Georgia stands for, the States may as well be permitted to re-enact the statutes that were on the books before Furman." I have said as much in State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983) and State v. Creech, 105 Idaho [105 Idaho 686]

Page 564

463, 670 P.2d 463 (1983), where I also pointed out that Idaho's pre- Furman statutes, as applied under this Court's case-law holdings would have met consitutional muster under the opinions handed down by the High Court in 1976 (which opinions precipitated Idaho's attorney general into pushing through the legislature the present scheme which deprives an accused of his constitutional right to have his fate determined...

To continue reading