Henderson v. State

• Decision Date: 26 October 1971
• Docket Number: Nos. A--16007,A--15988,s. A--16007
• Citation: 490 P.2d 786
• Parties: Robert David HENDERSON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error. Billy Terrell DAVIS, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 786

490 P.2d 786

Robert David HENDERSON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

Billy Terrell DAVIS, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

Nos. A--16007, A--15988.

Court of Criminal Appeals of Oklahoma.

Oct. 26, 1971.

Syllabus by the Court

1. An affidavit for search warrant alleging that a previously tested informant whose information has proven accurate has personally observed contraband in certain premises is sufficient to show probable cause to issue a warrant to search said premises.

2. Although erroneous facts and improper matters in an affidavit for search warrant may not constitute probable cause for issuance, if the challenged matter is merely cumulative and when excluded does not detract from the substantive showing of probable cause, the warrant may be upheld.

3. The general rule is that when a defendant is put upon trial for one offense he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone and the admission of evidence of other crimes, either prior or subsequent to the offense for which he is on trial is inadmissible.

An appeal from the District Court of Oklahoma County; Stewart Hunter, Judge.

Robert David Henderson and Bill Terrell Davis were convicted for the crime of illegal possession of a stimulant; each were sentenced to a term of one year in the county jail, and a fine of $500.00, and they appeal. Affirmed.

Don Anderson, Public Defender, Oklahoma County, for plaintiff in error Henderson.

Carroll Samara, Oklahoma City, for plaintiff in error Davis.

Larry Derryberry, Atty. Gen., Yvonne Sparger, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

Plaintiffs in Error, Robert David Henderson and Bill Terrell Davis, hereinafter referred to as defendants, were convicted of the misdemeanor offense of illegal possession of a stimulant in the District Court of Oklahoma County, Case No. CRM--70--196, and each sentenced to the maximum punishment of one year in the county jail, and a fine of $500.00. Judgment and sentence was imposed on March 16, 1970, and this appeal is perfected therefrom.

Defendants Henderson and Davis were tried jointly with three other defendants for illegal possession of stimulants discovered at the residence at 2945 Northwest 16th Street, Oklahoma City, Oklahoma, during a search pursuant to a warrant at approximately 11:00 P.M. on February 21, 1970.

I.

Defendants contend the affidavit for the search warrant was insufficient to provide probable cause for the issuance of a warrant. The test for the constitutional sufficiency of an affidavit for a search warrant was set forth by the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964) as follows:

* * * Although an affidavit may be based on hearsay information * * * the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant * * * was * * * 'reliable.'

In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the United States Supreme Court held that probable cause was not shown for issuance of the warrant where the affidavit did not contain facts to support a conclusion the informant was reliable and since the affidavit did not state the underlying circumstances to determine the informant's information was credible. This Court in Leonard v. State, Okl.Cr., 453 P.2d 257 (1969), implemented the Spinelli rule, and held:

(a) Under oath, the officer must swear that he has personally observed contraband, or articles to be seized, upon certain described premises, detailing to such a degree the minute particulars of these observations sufficient to support an arrest without a warrant, or to show the probability that contraband, or items used in the commission of crime, or fruits of crime, are on the described premises; or

(b1) If based upon hearsay information of a reliable informant, it must contain positive language, under oath, setting forth in detail why the informant is deemed to be reliable in order that the magistrate can judicially determine whether the informant is, in fact, reliable, and should further set forth in detail whether the informant, himself, observed the violation, or the presence of contraband or articles to be seized, upon the premises; 453 P.2d at 258.

As to the affidavit herein, it contains both conclusionary statements and factual underlying circumstances. ¹ Its allegations that there has been a year-long investigation of defendant's activity in the drug traffic, that they are dealing in drugs, and that known drug dealers have been seen at the residence are nothing more than 'a bald and unilluminating assertion of suspicion that is entitled to no weight in appraising the magistrate's decision.' Spinelli v. United States, supra, 393 U.S. at 414, 89 S.Ct. at 588. The allegation that defendants are keeping drugs in the house, without more, does not provide the necessary details to support such a conclusion. Mere suspicion and conclusions are insufficient. An affidavit for search warrant must recite facts and may not be based entirely upon information and belief. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). As observed in Krauss v. Superior Court, 96 Cal.Rptr. 455, 487 P.2d 1023, 1025 (Cal., 1971):

* * * conclusionary statements as to petitioner's reputation in the drug traffic * * * as well as information allegedly received from other police officers do not constitute the detailed, factual statements required by the Fourth Amendment.

Likewise, without more, allegation that there is an outstanding warrant for one of the defendants does not provide a basis to conclude that there are illegal drugs in the house. Neither a bad reputation nor bad associations constitute probable cause.

However, the further allegation that an informant, who has twice provided information proven to be true, has personally observed LSD and marijuana in the house and sampled the drugs therein is sufficient to show the informant was reliable and his information credible. United States v. Perry, 380 F.2d 356 (2d Cir., 1967). This personal, firsthand observation of a tested informant is 'sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.' Spinelli v. United States, supra, 395 U.S. at 416, 89 S.Ct. at 589. Thus the necessary underlying circumstances were provided.

It is further contended that the affidavit contains false allegations and misrepresentations which renders it invalid. If indeed the affidavit contained substantial false allegations or deliberate misrepresentations, then certainly such improper matters cannot be permitted to form the probable cause necessary to issue a warrant. The courts in performing their duty of upholding the law cannot rely upon unlawfulness or be a party to deceit and perjury. As observed in United States v. Roth, 391 F.2d 507, 509 (7th Cir., 1967):

(I)f the (motion to suppress) hearing discloses matters which discredit or impeach the assertions in an affidavit, these must be considered by the trial court in determining whether probable cause in fact existed.

In United States v. Upshaw, 448 F.2d 1218 (5th Cir., 1971), the Court held:

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