Baxter v. State

• Decision Date: 17 October 1977
• Docket Number: No. 2,No. CR77-135,CR77-135,2
• Citation: 262 Ark. 303,556 S.W.2d 428
• Parties: Faron BAXTER and Debra Ann Baxter, Appellants, v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

Page 428

556 S.W.2d 428

262 Ark. 303

Faron BAXTER and Debra Ann Baxter, Appellants, v. STATE of Arkansas, Appellee.

No. CR77-135.

Supreme Court of Arkansas, Division No. 2.

Oct. 17, 1977.

Jack T. Lassiter, Little Rock, for appellants.

Bill Clinton, Atty. Gen., by Terry R. Kirkpatrick, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellants were found guilty of possession of controlled substances with intent to sell. They seek reversal only on matters pertaining to the denial of their motion to suppress certain evidence seized in a search of their house pursuant to a search warrant. Their principal arguments relate to the reliability of an informant. We find that the affidavit on which the search warrant was issued sufficient to establish the reliability of the informant.

At the hearing on the motion to suppress, the state was permitted to introduce testimony to supply alleged deficiencies in the affidavit. This testimony was given by the informant, who was identified at the hearing as Cathy Auld. This is not permissible and appellants' objection should have been sustained. The information disclosed by her testimony was not before the issuing magistrate. Probable cause for the issuance of a search warrant can only be determined upon the basis of the information given, under oath, to the issuing judicial officer. Lunsford v. State, 262 Ark. 1, 552 S.W.2d 646 (1977); Cockrell v. State, 256 Ark. 19, 505 S.W.2d 204; Durham v. State, 251 Ark. 164, 471 S.W.2d 527.

The affidavit for search warrant was made by Deputy Sheriff William P. Sprecher and was based entirely upon information received by him from the confidential informant. The recitation of facts in the affidavit going to the reliability of the informant are these:

On this date, May 5, 1976, I received information from confidential informant not named herein, but whose identity will be furnished to the court on request. This informant purchased from one Farron Baxter at his residence ten capsules of phenobarbital at a price of $1.50 per pill. Informant further states these purchases were made at 10:00 P.M. Tuesday, May 4, 1976 and at 2 A.M. and 4 A.M. on this date May 5, 1976. Informant further states that she witnessed two sales of marijuana by Mr. Baxter in her presence and that he gave her the marijuana cigarettes which she brought to me this morning. The informant states that barbituates are presently stored in a refrigerator in the Baxter's residence and a large quantity of marijuana is being hidden in one of the bedrooms of the residence. * * * I believe my informant since Mr. Baxter has a long standing reputation with me and other police agents as a drug seller. (She (informant) is an addict and has been reliable as an informant to Benton City Police.)

Appellants rely upon the requirement of Rule 13.1(b), Arkansas Rules of Criminal Procedure, effective January 1, 1976, that the affiant set forth particular facts bearing on the informant's reliability and disclose, as far as practical, the means by which the information was obtained. This rule was based to a great extent upon Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The requirements of Aguilar were considered in U. S. v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) and the better view of these requirements was expressed in the opinion of Mr. Chief Justice Burger, in parts of which four other justices joined. A majority of the court took the view that, in evaluating the showing of probable cause for the issuance of a search warrant, the admonition of U. S. v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965) should be heeded. That admonition was there quoted, viz:

(T)he Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

This is an appropriate admonition. We have said that issuing magistrates should base their judgments upon a commonsense reading of an entire affidavit. Cary v. State, 259 Ark. 510, 534 S.W.2d 230.

In Harris, an officer's affidavit for search warrant was held constitutionally sufficient. It stated that the defendant had a reputation as a trafficker in nontaxed distilled spirits; that the officer had received information from numerous persons of all types as to the defendant's activities; that a local constable had seized illicit whiskey in an abandoned house under the defendant's control; that the officer had received information from a confidential informant whom the officer had interviewed and found prudent; and that the informant had "personal knowledge of and had purchased illicit whiskey from within the residence described" for more than two years and within the preceding two weeks, knew of a person who had purchased illicit whiskey in the preceding two days from this house and had personal knowledge that illicit whiskey was consumed by purchasers in an outbuilding located about 50 feet from the defendant's residence, to which he had seen defendant go to obtain whiskey for purchasers. The particular statements as to the affiant's knowledge of his informant's reliability in this case go much further than a conclusion that she was prudent. It was stated that she, an addict, had furnished reliable information to the Benton city police. Factors which the court found supportive of the reliability of the informant in Harris were the reputation of the defendant and the informant's incriminating declaration against interest.

We have heretofore held that the reliability of an unnamed informant could be established merely by the incriminating nature of his statements. Maxwell v. State, 259 Ark. 86, 531 S.W.2d 468. We have also given weight to the reputation of a place as one where illegal drugs could be purchased in considering an officer's testimony before an issuing magistrate based on an informer's statements. See Shinsky v. State, 250 Ark. 614, 466 S.W.2d 909.

The informant here incriminated herself. See Ark.Stat.Ann. § 82-2617(c); Armour v. Salisbury, 492 F.2d 1032 (6 Cir., 1974), citing and quoting from Harris. But, in addition, she gave specific information as to recent purchases by her and a detailed description of the place where controlled substances were kept, she was a known addict, who had given information to other police officers, and her statements were supported by the officers' knowledge of appellants' reputation as a drug seller. This affidavit seems to be comparable to that in Harris and was certainly more specific, detailed and comprehensive than the one held sufficient in Jones v. U. S., 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960), cited with approval in Aguilar.

Harris has been widely construed as holding that where the evidence before the magistrate issuing a search warrant shows that a confidential informant has given specific details indicating recent illegal activity, actually witnessed by him, at a definitely described place, the fact that the informant's statements are declarations against interest is a sufficient basis for a finding of the informant's reliability and credibility, at least when coupled with a showing that the person alleged to be carrying on the illegal activity has a reputation for engaging in such activities. See Armour v. Salisbury, supra; Quigg v. Estelle, 492 F.2d 343 (9 Cir., 1974), cert. den. 419 U.S. 848, 95 S.Ct. 86, 42 L.Ed.2d 78; State v. Southard, 144 N.J.Super. 501, 366 A.2d 692 (1976); Smith v. State, 136 Ga.App. 17, 220 S.E.2d 11 (1975), cert. den. 425 U.S. 938, 96 S.Ct. 1671 48 L.Ed.2d 179; U. S. v. DeCesaro, 502 F.2d 604 (7 Cir., 1974); Ringel, Searches and Seizures, Arrests and Confessions, 1976 Cumulative Supplement, p. 330, § 335.01. Certainly Aguilar would permit reliability to be established by surrounding circumstances made known to the issuing magistrate. State v. Sullivan, S.C., 230 S.E.2d 621 (1976). Other information within the knowledge of the affiant furnishing corroboration of the informant's disclosures may be a basis for establishing the informant's reliability. See Blankenship v. State, 258 Ark. 535, 527 S.W.2d 636; Smith v. State, supra, 136 Ga.App. 17, 220 S.E.2d 11.

It has also been held that detailing the reliable information previously given by the affiant's informer is unnecessary when the informant was an eyewitness to the facts related by him. Woods v. State, Tenn.Cr.App., 552 S.W.2d 782 (1977); Torres v. State, 552 S.W.2d 821 (Tex.Cr.App.1977). ¹ This might be a sound view insofar as constitutional standards are concerned, but Rule 13.1(b) requires more. The conclusory statement that the informant had given reliable information to the Benton city police, which was itself hearsay, would not be sufficient under that rule; however, any deficiency in that respect is supplied by these facts: (1) the informant was an eyewitness to recent events detailed by her; (2) her statements were declarations against interest; (3) the reputation of...