Davis v. State
| Decision Date | 28 July 1972 |
| Docket Number | Nos. 1428,1436,s. 1428 |
| Citation | 499 P.2d 1025 |
| Parties | Joshaway DAVIS a/k/a Joshua Burl Davis a/k/a Joshuaway Burl Davis, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Before BONEY, C. J., and CONNOR and ERWIN, JJ.
On February 16, 1970, the Polar Bar in Anchorage was burglarized, and a small safe weighing approximately 200 pounds was taken from the back room.
Early the following morning the Anchorage Police Department received word from the Alaska State Troopers that a safe had been discovered along a little-used side road off the Glenn Highway, about 26 miles from Anchorage. Local residents had found the safe lying on its side in brush approximately 100 feet off the main road. The dial and handle were broken and the bottom of the safe had been pried open.
The State Troopers indicated that the discovery had been reported by Jess Straight, whose home was near the site of the discovery. At trial, Straight's stepson, a youth on probation for burglary, testified that he, his stepfather, and his uncle first viewed the safe at about 5:00 p. m. on February 16. The boy told the officers that at about noon the same day he had seen two black men standing alongside a late model metallic blue Chevrolet sedan at the same location. He approached the shorter of the two men and asked if they needed any help. He identified this man as black, mustachioed, wearing a black-brown mackinaw, and carrying a crowbar. Approximately 15 minutes later, the youth again abserved the two men and the automobile at the site.
After receiving this report, Anchorage Police Investigator George E. Weaver canvassed the automobile rental companies in the area. He learned that Airway Rent-A-Car had rented a 1969 metallic blue Chevrolet Impala to Joshuaway Davis on February 11, and that Davis had returned shortly after noon on February 16 to extend his rental contract. The Rent-A-Car agent said that Davis had paid an additional $50 from a large roll of bills and two rolls of quarters.
Investigator Weaver then asked the child witness if he would come down to the police station in Anchorage to look at some pictures. The youth studied five pictures of black men for approximately 30 seconds, during which time Investigator Weaver went about other business and did not say anything or show any interest in the inspection. The child then identified Joshuaway Davis as the man to whom he had spoken and Andrew J. Leonard as the other man he had seen near his home. Later the Rent-A-Car agent also selected the picture of Davis from among the five photographs.
On February 18, Investigator Weaver presented an affidavit before a district judge requesting the issuance of a warrant for the search of both the residence of Joshuaway Davis and the rented car in his possession. The affidavit recited that the affiant was competent to testify; that the bar had been burglarized and the safe stolen; that the named child had observed the two black men near his home at approximately noon the same day; that he had spoken to the shorter man and had observed that this man was wearing a brown and black mackinaw type jacket and carrying a crowbar; that the youth had returned to the area at approximately 5:00 p. m. and had observed the safe; that dust, fibers and markings had convinced the affiant that the safe was the one burglarized from the Polar Bar; that further investigation had disclosed that a 1969 metallic blue Chevrolet had been rented to Joshuaway Davis on February 11; that both the Airways Rent-A-Car agent and the youthful witness at the scene had selected the picture of Joshuaway Davis from among the five mustachioed blacks; and that shortly after noon on February 16, the person identified as Joshuaway Davis had extended his rental agreement and had paid an additional $50 from a large roll of bills and two rolls of quarters. The affiant then stated his belief that the premises and the automobile contained specified items of evidence as well as 'other evidence' of the crime. Without further hearings or considerations beyond the affidavit, the district judge issued search warrants for the premises and the automobile.
Davis first argues that the affidavit of Investigator Weaver did not provide probable cause for the issuance of the warrants because they contain only conclusory statements that a crime had been committed, and because the information given the judge was not the first-hand knowledge of the affiant. We cannot agree with either contention.
In determining whether supportive evidence of a crime exists, the question to be asked is whether the issuing judge was provided sufficient evidence to make an independent finding of probable cause for the issuance of the warrants. The United States Supreme Court has suggested that in making this determination of appeal 'great deference' be given the findings of the issuing judge, that he not be 'confined by niggardly limitations,' and that 'probability' rather than proof be the standard for probable cause. 1
Applying these standards of review, we cannot agree with Davis that the affidavit contained only the conclusory assertion that the Polar Bar had been burglarized. Investigator Weaver averred that his own investigation 'revealed that the safe above described was the one stolen from the Polar Bar.' Such a statement enabled the district judge to conclude without inferring undisclosed facts that the affiant had personal knowledge of the stolen safe. There is no informant hearsay connected with the actual commission of the burglary. The scene of the crime was investigated by an officer under the direct supervision of the affiant. The police work described in the affidavit indicates that the police had already invested a substantial number of man hours on the assumption that a crime had been committed. The discovery of the broken safe is itself independently suggestive of a crime.
Investigator Weaver's statements are not mere assertions of belief or suspicions that a crime had been committed. They are facts and circumstances which cumulatively go far toward establishing the existence of a burglary, and toward providing the basis for the judge's independent determination that probable cause existed.
Moreover, a substantial portion of the information given to the district judge was the personal work product of the affiant. He averred that he personally had interviewed the child, and that his own investigation had corroborated the youthful witness' statement that Davis was in possession of a metallic blue Chevrolet shortly after the burglary. He further averred that both the child and the rental agent had selected Davis' photograph from a group of five photographs of adult black males wearing mustaches. The nature and quantity of supportive evidence in the affidavit readily distinguish the present case from the case upon which Davis relies, Giordenello v United States, 2 where the affidavit contained only conclusory statements.
Davis next contends that the information obtained from the witnesses and alleged in the affidavit was hearsay, and that the affidavit neither alleges the reliability of those informants, nor independently corroborates their statements as required by Aguilar v. Texas 3 and Jones v. United States. 4
While reliance upon hearsay does not change the standards of probable cause, it does add to the burden which must be met by the affiant. The information must be based on the personal observations of the informant, and not his suspicions, beliefs, or some form of double hearsay. 5 Absent an affirmative allegation of personal knowledge of the informant in the affidavit, the facts supplied must be so detailed as to support an inference of personal knowledge. 6 In addition, the judge 'must be informed of some of the underlying circumstances . . . from which the (affiant) concluded that the informant . . . was 'credible' or his information 'reliable'.' 7 This reliability might be established by demonstrating past reliability, 8 by independent corroboration of incriminating facts by the police, 9 or through the personal identity and involvement of the person giving the information. 10
In the instant case, both statements by the witnesses were independently corroborated by the preliminary police investigation. The officers determined that the man whom the child witness had described had rented a car which the youth had also described. The witness later identified the picture of the man whose name the police had obtained from another source. Similarly, the automobile rental agent described the man and identified a photograph. Each independent identification strengthened the other in the sense of making each witness' information more reliable, and enhancing the probability that his information was credible.
Also, the hearsay evidence in the present case can be viewed less suspiciously because it does not offer information about a crime per se, nor does it establish the existence of the crime. It is informative rather than accusative; supplemental rather than essential. The police were independently aware of the commission of a crime. Nothing in the hearsay accused Davis of having committed that crime. The connection between the hearsay descriptions and identifications, and the fact of a crime, is the result of the investigator's deductive reasoning. This reasoning is clearly set forth in the affidavit for the independent scrutiny of the issuing judge.
For these reasons we cannot find that the affidavit for the warrants was deficient.
The search warrants obtained from the above affidavit were executed that same day, February 18, 1970. Although Davis contends in a single sentence that the search was conducted in bad faith, there is no evidence to support...
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