Buchenburger v. Com.

• Decision Date: 30 June 1972
• Citation: 482 S.W.2d 747
• Parties: Henry B. BUCHENBURGER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 747

482 S.W.2d 747

Henry B. BUCHENBURGER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

June 30, 1972.

Frank E. Haddad, Jr., Kenny Grantz, Louisville, for appellant.

Ed W. Hancock, Atty. Gen., John M. Famularo, Asst. Atty. Gen., Frankfort, Edwin Schroering, Commonwealth's Atty., Louisville, for appellee.

VANCE, Commissioner.

This is an appeal from a judgment sentencing appellant to confinement in the penitentiary for five years and imposing a $4,000.00 fine upon him for the offense of unlawful possession of dangerous drugs for the purpose of sale. KRS 217.731(1)(b).

The residence of appellant was searched pursuant to a search warrant. A large quantity of marijuana and approximately seven-hundred LSD tablets were found.

This appeal questions the sufficiency of the affidavit for the search warrant and challenges the instructions which were given to the jury.

The portion of the affidavit in question reads as follows:

'On the 5th day of September 1970, at approximately 5:00 p.m., affiant received information from/observed a confidential informant who has in the past been reliable and has been responsable (sic) for two (2) narcotic arrests in the past year. Informant states that on this date, September 5, 1970 at 4:00 pm, he was at the home of Henry Buckenberger or Buchenburger (he was unsure of the spelling) at 6015 Bardstown Road and while there he observed Henry Buckenberger or Buchenburger with a large quantity of marihuana. Informant states that Buchenburger or Buckenberger is a pusher and sells marihuana by the pound. Informant further states that he was asked by Buchenburger or Buckenberger if he wanted to be a runner for him. Informant states that he was told his part of a $20.00 dollar bag would be $5.00 dollars.'

In Kentucky the name of an informant need not be disclosed in an affidavit for a search warrant if the affidavit contains sufficient information upon which the issuing magistrate can make an independent judgment (1) as to the credibility or reliability of the informant, and (2) that facts were known to the informant sufficient to constitute probable cause and the basis of the knowledge of such facts shown. Thompson v. Commonwealth, Ky., 472 S.W.2d 884 (1971) and Berkshire v. Commonwealth, Ky., 471 S.W.2d 695 (1971). There is no question but that the informant had knowledge of facts sufficient to constitute probable cause for the issuance of the warrant. The question is whether the affidavit sufficiently established the credibility of the informant.

In Berkshire the affiant stated that his information was received from a reliable, credible and confidential informant. In Thompson the affiant stated his information came from a white male, known to the affiant only as 'Charlie' and in whom he believed.

In both cases we held the statements in the affidavit to be no more than a conclusion of the affiant and insufficient to enable the magistrate to make an independent determination of the reliability of the informant.

There are many things which a magistrate may consider in making his independent determination of the credibility of an informant. The length of time that the affiant has known the informant is an important factor. A statement by affiant of the reputation and standing of the informant in the community is relevant. That information previously furnished by the informant had always proved to be accurate would be indicative of reliability. Ideally an affidavit would state that affiant had known the informant for a number of years; that his reputation for truth and veracity was good; that his standing in the community was excellent and that on a number of occasions past the informant had furnished information to the affiant which had always been accurate. The affidavit could then set forth instances in which the...