Beemer v. Com.

• Decision Date: 08 March 1984
• Citation: 665 S.W.2d 912
• Parties: Michael Gordon BEEMER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 912

665 S.W.2d 912

Michael Gordon BEEMER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

March 8, 1984.

Rodney McDaniel, Asst. Public Advocate, Frankfort, for appellant.

Steven L. Beshear, Atty. Gen., Sarah M. Jackson, Asst. Atty. Gen., Frankfort, for appellee.

VANCE, Justice.

This is an appeal from a judgment sentencing appellant to imprisonment for 20 years as a persistent felony offender as a result of his conviction on charges of trafficking in and possession of controlled substances. Appellant had been convicted previously on seven counts of unlawful possession or sale of controlled substances. Because of an important question relating to search and seizure we granted oral argument, and we now affirm the conviction.

Appellant was arrested after the search of an automobile in his possession yielded a substantial quantity of controlled substances. The search was conducted pursuant to a search warrant. The affidavit in support of the warrant was based upon information from an anonymous informer and read as follows:

"On the 6th day of February, 1982, at approximately 8:00 /p.m., affiant received information from / an anonymous informer that two people from Dayton Ohio who were staying at a local motel had recently brought to Owensboro for the purpose of resale two large quantities of Quaaludes. The informant stated that, during that week, the subjects had brought approximately 3000 pills and, during the preceding week, had brought approximately 2000 pills. The informant further advised that the subjects were driving a blue pickup truck. Affiant surveyed several local motels and discovered parked at the Colonel House Motel at the Corner of 19th and Triplett streets, a blue pickup truck which affiant recognized as belonging to Mike Beemer, a local resident known to affiant to be active in the traffic in illegal drugs. Affiant inquired of the clerk at said motel and determined that the truck was in the possession of the occupants of Unit 139 which was leased to Herbert Ordie Edgington and Kelly Stanley Edgington who gave their home address as Dayton, Ohio. Affiant, assisted by other officers, took the Edgington subjects under surveillance beginning on 9 February. Subjects were followd to 915 Peppertree Lane, Apartment B, and stayed 30 minutes. Affiant learned from United Parcel Service that a 1" X 7" X 10" package was delivered during the morning hours of 12 February to Cotton Clark at Advance Aluminum Co. At 2:10 PM on 12 February a white Cadillac was observed (lic AZD-894 KY) arriving at 915 Peppertree Lane. At 2:15, the occupant left the apartment. Affiant recognized "Cotton" (t/n b/t/b Charles) Clark as the driver. Clark is known to affiant to have been involved in voluminous illegal narcotic transactions at his place of business. At 2:21 PM 12 February, the Edgington subjects were observed arriving at 915 Peppertree Lane in the blue pickup truck which previously belonged to Mike Beemer. They entered apartment B. Kelly Stanley Edgington was carrying a large (24" X 12") purse. At approximately 3:30 PM, Mike Beemer was observed coming out of the apartment carrying a package which appeared to be a rolled up green trash bag which he placed inside a silver Mustang II (approximately 1974 model) which was parked in front of 915 Peppertree Lane. At 3:47 PM 12 February 1982 the

Edgington subjects left the apartment. Previous investigation indicated that Herbert Ordie Edgington was driving with a suspended or revoked operators license issued by the state of Texas. Acting on that information, another officer stopped the truck driven by them and, upon learning that the license presented by him was expired, and noting that the subject was from out of state, placed him under arrest. During the arrest, the female subject was found to be in possession of a quantity of crystalline powder believed to be cocaine. Affiant believes, based upon the foregoing events, that illegal drugs are being prepared for sale or distribution in apartment B, 915 Peppertree Lane and are being stored in the silver Mustang II. Affiant further believes that evidence of trafficking in illegal drugs will be found in unit 139, Colonel House Motel.

Appellant questions the validity of the warrant because the affidavit does not establish the credibility and reliability of the informant. The Constitution of the United States and the Constitution of the Commonwealth of Kentucky each prohibit unreasonable searches and seizures. 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), the United States Supreme Court established a two-pronged test applicable to search warrants based upon information from anonymous informants, to-wit; (1) that the basis of the knowledge of the informant be shown, and (2) that the reliability of the informant must be established.

Because Kentucky cannot accord less protection from searches and seizures than is afforded by the United States Constitution, we were bound to follow the Aguilar and Spinelli decisions. We did so in Berkshire v. Commonwealth, Ky., 471 S.W.2d 695 (1971); Thompson v. Commonwealth, Ky., 472 S.W.2d 884 (1971), and Buchenburger v. Commonwealth, Ky., 482 S.W.2d 747 (1972), in which we determined the two-pronged test established by Aguilar, supra and Spinelli, supra, to be a requirement under the Kentucky Constitution as well as the United States Constitution.

The United States Supreme Court has now abandoned the two-pronged test of Aguilar and Spinelli and has adopted a "totality of the circumstances" test. Illinois v. Gates, --- U.S. ----, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

"We also have recognized that affidavits 'are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleading have no proper place in this area.' Ventresca, supra, 380 U.S., at 108, 13 L.Ed.2d 684, 85 S.Ct. 741 . Likewise, search and arrest warrants long have been issued by persons who are neither lawyers nor judges, and who certainly do not remain abreast of each judicial refinement of the nature of 'probable cause.' See Shadwick v. City of Tampa, 407 U.S. 345, 348-350, 32 L.Ed.2d 783, 92 S.Ct. 2119 (1972). The rigorous inquiry into the Spinelli prongs and the complex superstructure of evidentiary and analytical rules that some have seen implicit in our Spinelli decision, cannot be reconciled with the fact that many warrants are--quite properly, ibid.--issued on the basis of nontechnical, common-sense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings. Likewise, given the informal, often hurried context in which it must be applied, the 'built-in subtleties,' Stanley v. State, , 313 A.2d 847, 860 (Md.App.1974), of the 'two-pronged test' are particularly unlikely to assist magistrates in...