Culver v. State

• Citation: 519 N.E.2d 196
• Decision Date: 17 February 1988
• Docket Number: No. 45A04-8706-CR-00172,45A04-8706-CR-00172
• Parties: Kenneth CULVER, Appellant, v. STATE of Indiana, Appellee.
• Court: Court of Appeals of Indiana

Page 196

519 N.E.2d 196

Kenneth CULVER, Appellant, v. STATE of Indiana, Appellee.

No. 45A04-8706-CR-00172.

Court of Appeals of Indiana Fourth District.

Feb. 17, 1988.

Rehearing Denied May 11, 1988.

William L. Touchette, Appellate Public Defender, Crown Point, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

MILLER, Presiding Judge.

Kenneth Culver appeals from his December 9, 1986 conviction for unlawful dealing in a controlled substance, a Class B felony, ¹ for which he was given a ten-year sentence. Culver alleges the trial court erred when it overruled his motion to suppress evidence seized from his residence because the affidavit offered in support of the warrant failed to establish probable cause. We affirm.

FACTS

On November 12, 1985 an Affidavit for Search Warrant was filed in the Lake County Court by Officer James Lawson. His affidavit stated, in relevant part, that

"[Affiant] swears that he believes and has good cause to believe that the following particularly described items:

1. Commando Mark 111 45 cal. sr# 18489 rifle

1. Smith and Wesson revolver

assorted narcotics, pills and capsules, and paranaphella [sic] are concealed in or about the following premises: 6517 Harrison st. Hammond, In. apt B corner house situated in the County of Lake, in said state and occupied by Kenneth Culver, and that said items are related to the following offense.

35-47-2-23 Sec. C convicted felon in Possession of a firearm

35-48-4-7 Possession of a controlled Substance

and that he believes and has good cause to believe

On 11-11-85 a confidential informant who has supplied reliable in the past related to this affiant that in the P.M. hrs. of 11-11-85 he saw, observed and handled a rifle to wit a Commando Mark 111 sr# 18489 and in addition he saw the subject Kenneth Culver with a Smith and Wesson revolver, This subject Kenneth Culver is a convicted felon, The confidential informant further related Kenneth Culver is selling narcotics to wit Percodan pills and has a large supply in his apt. The personal observations of this affiant indicate that Kenneth Culver is in fact selling narcotics due to the high volume of persons entering the dwelling and leaving after a brief period of time."

(Record at 59).

Based on the affidavit, a search warrant was issued and a search of Culver's apartment was executed that same day. The police found substances which were later determined to be Phendimetrazine pills, marijuana, and one substance that contained amphetamine. As a result of the search Culver was arrested and charged with unlawful dealing in a controlled substance.

Before trial Culver filed a motion to suppress the evidence; but, after an evidentiary hearing, the judge denied the motion. At trial Culver objected to the admission of the evidence, but his objection was overruled. Culver brings this appeal alleging his conviction should be vacated because it

                rests on evidence obtained under a search warrant that was not supported by probable cause, and consequently that the search violated the Fourth Amendment. 2  He contends there were insufficient facts to support the credibility of the hearsay informant and to connect the items specified in the affidavit to his apartment.  We will discuss these two issues together
                

DISCUSSION AND DECISION

To demonstrate probable cause to search premises, an affidavit must provide a sufficient basis of fact to warrant a reasonably prudent person to believe that a search of those premises will reveal evidence of a crime. Woods v. State (1987), Ind.App., 514 N.E.2d 1277 (citing Carroll v. United States (1925), 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543). An affidavit based on an informant's tip has been regarded as open to question since the tip is hearsay and is thus susceptible to concerns about perception and truthfulness. See, Spinelli v. United States (1969), 393 U.S. 410, 425, 89 S.Ct. 584, 593, 21 L.Ed.2d 637 (concurring opinion). If the tip is to provide a basis for a finding of probable cause the magistrate must have substantial reason to believe the information is reliable. Otherwise, the magistrate would be surrendering his authority to the informant, and possibly to an overeager law-enforcement officer. Aquilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

The United States Supreme Court has provided guidance as to how this constitutionally required evaluation is to be made, and the Court has more recently recast the probable cause analysis pertaining to this area. In the case of Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, the Court abandoned the double demands for perception and veracity required under the so-called Aguilar-Spinelli test for informant reliability, and substituted a more flexible approach to making such an evaluation. The Court stated that while an informant's basis of knowledge and truthfulness are still important considerations, these two elements are to be viewed as no more than "relevant considerations in the totality of circumstances analysis that traditionally has guided probable cause determinations." Gates, supra at 230, 103 S.Ct. at 2328. The Court described the task of the magistrate as:

"... simply 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." Id. at 238, 103 S.Ct. at 2332.

The Court went on to warn that a magistrate should refrain from "excessively technical dissection of informant's tips", Id., and from "judging bits and pieces of information in isolation." Massachusetts v. Upton (1984), 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721. The Court stressed the fact that informants' tips--coming as they do in many shapes and sizes and from various types of persons--are not to be evaluated under a neat set of legal rules but through a common-sense overall approach. Gates, supra.

In reviewing an affidavit this court will not conduct a de novo review. Id. Rather, our task is to insure that the magistrate had a "substantial basis for ... conclud[ing]" that the affidavit established probable cause. Id., 462 U.S. at 238, 103 S.Ct. at 2332 (citing Jones v. United States (1960), 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697). We are not to take a grudging or negative attitude toward warrants, but we are to uphold a deferential standard of review so as "to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant." Upton, supra, 466 U.S. at 733, 104 S.Ct. at 2088.

Despite our adherence to this stringent restraint on our appellate role in reviewing affidavits, we find the affidavit at hand presents an uncomfortably close question as to the magistrate's determination of probable cause. The sufficiency of the affidavit hinges on the interplay of the following factors: (1) the affiant's statement that the informant had supplied reliable information in the past, (2) the affiant's statement that Culver was a convicted felon, (3) the tip stating the informant saw Culver firsthand with a Smith and Wesson revolver, (4) the tip stating Culver was selling narcotics--specifically Percodan pills--and had a large supply in his apartment, and (5) the affiant's observations upon keeping watch over the house where Culver resided. We will address each of these factors, but it is only through their interplay that any one bears significance on the finding of probable cause.

First, the affidavit states that the informant had provided reliable information in the past. ³ Such a self-serving label as "reliable" does nothing to provide the magistrate with facts from which to deduce the reliability of the source. It would be much preferable had the police told the magistrate what they knew about the informant, whether or not he had been cooperating in an ongoing investigation with them, and something more of his track record involving information which had led to arrests or convictions. See, e.g., United States v. Laws (D.C.Cir.1986), 808 F.2d 92, 100 at nn. 61 and 63. However, the fact the informant was known to the police and had proved himself reliable in the past does supply a smidgen of evidence as to the informant's veracity.

The affidavit also states that the informant saw Culver firsthand with a Smith and Wesson revolver. A firsthand observation is certainly preferable to a situation in which the informant obtained information indirectly.

Further, the fact the informant supplied such detail as to say he specifically saw Culver with a "Smith and Wesson" revolver strengthens the assessment of his credibility. For instance, the Gates court found that an anonymous letter that supplied many details indicated the informant had access to reliable information, and had either obtained the information from the Gateses directly or from someone they trusted. Gates, supra. Here, the fact the informant states he saw Culver with a Smith and Wesson revolver in all likelihood means that he saw him at close range.

This, too, however, may indicate the informant is one from the criminal milieu. Obviously, it is not as likely that a law-abiding citizen would witness such a circumstance or be present at such an event. But, as was pointed out in Gates, an informant's basis of knowledge (here his firsthand observation) may compensate for something less than a full demonstration of credibility.

Moreover, we have the additional information from the affiant that Culver is a convicted felon. This, combined with the firsthand observation of Culver handling a revolver, ⁴ is surely enough to heighten suspicion and warrant further police investigation. The Supreme Court has held that a suspect's past conviction favors a determination of probable cause in a...