Merry v. State

• Decision Date: 23 November 1988
• Docket Number: No. F-87-768,F-87-768
• Parties: Wayne MERRY and Rebecca Merry, Appellants, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1377

766 P.2d 1377

Wayne MERRY and Rebecca Merry, Appellants, v. The STATE of Oklahoma, Appellee.

No. F-87-768.

Court of Criminal Appeals of Oklahoma.

Nov. 23, 1988.

Rehearing Denied Feb. 9, 1989.

An appeal from the District Court of Sequoyah County; Dennis Sprouse, District Judge.

Wayne Merry and Rebecca Merry, appellants, were convicted of unlawful possession of marijuana and unlawful cultivation of marijuana, in the District Court of Sequoyah County, Case No. CRF-86-64. For Count I, both appellants were sentenced to one (1) year imprisonment and a fine of one thousand ($1000.00) dollars. For Count II, Wayne Merry was sentenced to five (5) years imprisonment and a fine of thirty thousand ($30,000.00) dollars. Rebecca Merry was sentenced to two (2) years imprisonment and a fine of thirty thousand ($30,000.00) dollars. Both appellants perfected appeals. REVERSED and REMANDED.

S. Daniel George, Sallisaw, for appellants.

Robert H. Henry, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Marc Bovos, Legal Intern, Oklahoma City, for appellee.

OPINION

PARKS, Judge:

Appellants, Wayne Merry and Rebecca Merry, were tried by jury and convicted of Unlawful Possession of Marijuana (63 O.S.1981, § 2-402) and Unlawful Cultivation of Marijuana (63 O.S.1981, § 2-509), in Sequoyah County District Court, Case No. CRF-86-64 before the Honorable Dennis Sprouse, District Judge. The jury set punishment for Count I at one (1) year imprisonment and a fine of $1000.00 (one thousand) dollars for both appellants. As to Count II, the jury set punishment for Wayne Merry at five (5) years imprisonment and a fine of $30,000.00 (thirty thousand) dollars and punishment for Rebecca Merry at two (2) years imprisonment and a fine of $30,000.00 (thirty thousand) dollars. The trial court imposed judgment and sentence in accordance with the jury's verdict. We reverse.

A recitation of the facts is unnecessary in the resolution of appellants' claims. As their first assignment of error, appellants allege the trial court erred by refusing to suppress the evidence obtained in a search conducted by police. In support of this allegation, appellants, relying on our state constitution, claim there was insufficient evidence to support the court's finding that the informant was reliable and his information credible.

Different tests are applied to determine the validity of a search warrant, depending on whether a state or federal constitutional claim is raised. This Court has adopted the "totality of the circumstances" test enunciated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) only with regard to federal constitutional claims. See, e.g., Payne v. State, 744 P.2d 196, 203-4 (Okla.Crim.App.1987) (Brett, P.J., Concurring in result, and Parks, J., Dissenting); Foster v. State, 742 P.2d 1131, 1136 (Okla.Crim.App.1987) (Brett, P.J., Specially Concurring and Parks, J. Concurring in Result); Morgan v. State, 738 P.2d 1373, 1375 (Okla.Crim.App.1987) (Brett, P.J., Concurring in Result, and Parks, J., Specially Concurring); Dixon v. State, 737 P.2d 942, 946 (Okla.Crim.App.1987) (Brett, P.J., and Parks, J., both Concurring in Result); Tosh v. State, 736 P.2d 527, 530 (Okla.Crim.App.1987) (Brett, P.J., and Parks, J., both Concurring in Result). However, when dealing with a state constitutional claim, we have continued to follow the test set forth 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.2d637 (1969), which requires that the State show the informant was reliable and his information credible. In the present case, appellant raises a state constitutional issue, therefore the Aguilar- Spinelli test is applicable.

As appellants point out, the State was required to present evidence as to the time and date the informant observed marijuana on appellants' property. Morris v. State, 617 P.2d 252 (Okla.Crim.App.1980). Reversing the defendant's conviction in Morris, this Court stated as follows:

When officers seek a search warrant based on information from a confidential informant, it is required that they be able to say when the informant obtained his information. Warthen v. State, Okl.Cr., 557 P.2d 466 (1976). As this Court noted in Warthen, facts which would establish probable cause at one point in time may not be enough to establish probable cause at some other time.

Id. (Emphasis in original) Clearly, under state constitutional standards, the validity of the search warrant mandated evidence as to the date in order to show the reliability of the informant's statement. Id.

Although the informant told the magistrate when he observed the drugs, his testimony was unsworn. Both the state and federal constitution mandate that "... no warrant shall issue but upon probable cause supported by oath or affirmation ..." U.S. Const. amend. IV; Okla. Const. art. II, § 30. Clearly, a search warrant based on information which was obtained without "oath or affirmation" is invalid. See Wilson v. State, 81 Okl.Cr. 108, 161 P.2d 86 (1945); Bowdry v. State, 60 Okl.Cr. 46, 61 P.2d 31 (1936). Thus, because the unsworn statements were critical under state constitutional analysis, the search warrant must fail as it cannot be based on information which was not under oath.

The search warrant also fails on other grounds. While it was not raised by either party, we note that no affidavit was presented with the request for a search warrant. In issuing the...