Mills v. State

• Decision Date: 02 March 1979
• Docket Number: No. F-77-493,F-77-493
• Parties: Roger D. MILLS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 374

594 P.2d 374

Roger D. MILLS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-493.

Court of Criminal Appeals of Oklahoma.

March 2, 1979.

As Corrected May 7, 1979.

An appeal from the District Court, Tulsa County; William W. Means, Judge.

Roger D. Mills, appellant, was convicted of the offenses of Possession of Heroin With Intent to Distribute, and Possession of Cocaine; sentenced to ten (10) years' imprisonment in each case, to run concurrently, and appeals. AFFIRMED.

Ronald H. Mook, Tulsa, for appellant.

Larry Derryberry, Atty. Gen., Mary Kathleen Rhodes, Asst. Atty. Gen., for appellee.

OPINION

CORNISH, Presiding Judge:

Appellant, Roger D. Mills, hereinafter referred to as defendant, was charged by Information in the District Court of Tulsa County, Oklahoma, with Possession of Heroin With Intent to Distribute, in violation of 63 O.S.Supp.1975, § 2-401 P B, in Case No. CRF-76-1736, and with Possession of Cocaine, in violation of 63 O.S.Supp.1972 § 2-402 P B 1, in Case No. CRF-76-1735. Following a jury trial on the heroin charge and guilty verdict, defendant was sentenced to ten (10) years imprisonment. Jury trial was waived on the charge of Possession of Cocaine, and defendant was found guilty and sentenced to ten (10) years imprisonment to run concurrently with the sentence imposed by the jury in CRF-76-1736.

The pertinent facts are that Tulsa police officers Donald Wayne Bell and Jimmy Lee Sherl set up surveillance outside defendant's residence at approximately 6:00 A.M. on June 25, 1976, in order to execute a search warrant issued the day before. The officers waited to execute the warrant until someone exited or entered the residence because it had iron bars on the doors and windows, and the officers were afraid that if they knocked on the door and announced their authority any evidence located or stored therein would be destroyed.

At approximately 10:30 A.M. on June 25th, defendant and a female companion left the residence and entered a vehicle in the driveway. The two officers, dressed in civilian clothes, ran toward the vehicle shouting they were police officers and had a search warrant for the residence. Defendant backed the car into the street. There he was stopped at gunpoint by the officers.

Officer Sherl corroborated the testimony of Officer Bell concerning the logistics involved in restraining the defendant and testified that as defendant started backing out of the driveway, he was struck and knocked backwards several feet, but not injured. He further stated that while standing next to the driver's door, he saw a pink kleenex in defendant's hand, which defendant appeared to drop as his hands went up.

Officer Bell drove the vehicle back into the driveway while Officer Sherl took the defendant and his companion to the front porch, delivered a copy of the search warrant, and requested defendant to unlock the front door of the residence, which defendant did. Once inside Officer Bell called Officer Nolin and waited for him before beginning the search. Officer Nolin arrived and read the defendant his Miranda rights. Officer Bell then searched the vehicle, finding eleven bendels of heroin inside a pink kleenex under the front seat. The officers next searched the residence and found, in the southeast bedroom, two balloons filled with a substance which proved to be heroin, one containing approximately one and one-quarter ounces and the other containing one-half ounce heroin. Cocaine was found in the ice box, and pieces of tinfoil containing a black substance similar to hashish were also discovered. In addition to the above contraband, the officers found lactose, a substance used for cutting heroin, and a set of scales used for measuring substances in grams.

Defendant's trial testimony reflects he had no knowledge of the heroin, had been out of state, and had given access of the house and subject vehicle to Emily Grant, so that the house could be checked while he and his wife were away.

Emily Grant corroborated the defendant's testimony, stating she and two other women (Patricia Armstrong and Yvette Severs) had obtained heroin in Oklahoma City and taken it to the defendant's Tulsa residence where they cut it with lactose, weighed it on defendant's scale, packaged it, shot up, and left most of the controlled substance at the house because Grant's probation officer had threatened to have her own house searched. Grant testified that upon leaving defendant's residence she took eleven "pills" of heroin with her in a pink kleenex which she evidently lost in the defendant's car. Patricia Armstrong, having been granted immunity from prosecution, basically corroborated the testimony of Emily Grant.

In his first assignment of error defendant attacks the trial court's action in overruling his Motion to Quash the search warrant as the product of a deficient affidavit because it (1) failed to set out the "underlying circumstances" upon which the magistrate could independently judge the validity of the informant's conclusions as to the defendant's possession of narcotics; and (2) failed to state facts showing the informant's credibility or the reliability of his or her information, as required under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1969).

The rule enunciated in Aguilar, supra, as enlarged in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), was adopted by this Court in Leonard v. State, Okl.Cr., 453 P.2d 257 (1969), where we said in the pertinent part of the First Syllabus:

"* * * 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, (articles to be seized), upon the premises; * * *"

The affidavit for search warrant herein provides as follows:

"That ROGER MILLS has in his possession and concealed in the above described dwelling a large quantity of HEROIN. Said informant stated to your affiant that he was inside said dwelling during the past 24 hours and personally observed ROGER MILLS in possession of several plastic bags containing a brownish substance which the alleged violator, ROGER MILLS, stated, 'was some mighty fine Heroin.' Informant also related to your affiant that he observed a young black female enter the residence and have conversation with the alleged violator, ROGER MILLS. Said informant stated to your affiant that he then observed ROGER MILLS placing the material which ROGER MILLS stated was Heroin into various colored balloons and giving approximately 10 of them to the black female.

"Your affiant along with Inv. Jim Sherl, who had previously set up a surveillance on the residence before the informant entered it, observed the aforementioned black female enter the residence and exit the residence. Your affiant and Inv. Jim Sherl recognized this Negro female to be YVETTE SEVERS, a known Heroin addict and prostitute.

"Your affiant further states that ROGER MILLS has been charged in Tulsa County District Court on at least 5 occasions with drug offenses and is known by your affiant and Inv. Jim Sherl to be very active in trafficing in the distribution of Heroin in Tulsa County.

"Your affiant further states that the said informant has been inside the alleged violator, ROGER MILL'S residence during the past 24 hours. That he personally observed ROGER MILLS in possession of a large quantity of HEROIN, that he had conversation with the alleged violator, ROGER MILLS, concerning the quality of the Heroin which the alleged violator ROGER MILLS had in his possession. The said informant is a Heroin addict and is able to recognize Heroin.

"Your affiant further states that he has known said informant for a period of approximately three (3) years. During this time, said informant has provided your affiant with information concerning narcotic traffic in Tulsa County. On each and every occasion his information has proven to be reliable, correct and true. The information that he has provided to your affiant has resulted in the arrests of numerous people and the convictions of several of these people charged with drug offenses in Tulsa County District Court. His information has resulted in the confiscation of several thousand dollars worth of Heroin."

A review of the affidavit reveals it to be similar to the affidavit held constitutionally valid in Guthrey v. State, Okl.Cr., 507 P.2d 556 (1973). The affidavit in Guthrey, supra, stated affiant received information from a heretofore proven reliable, confidential informant, who had in the past given information in reference to narcotics, and narcotic offenders and as a result of this information the affiant had made a number of arrests, getting convictions in some of the cases. The informant in that case stated to the affiant that shortly before the issuance of the warrant he was at the subject address and observed the narcotics and observed known narcotic users and characters with felony records.

We conclude, based on the foregoing, that the instant affidavit set forth sufficient grounds for the magistrate to consider the information reliable and from which he could also judge the credibility of the informant so as to establish probable cause for the issuance of the warrant. Therefore, we find no error in denying defendant's Motion to Quash the search warrant and hold the first assignment of error to be without merit.

In his second assignment of error the defendant contends the Trial Court erred in overruling his Motion to Suppress evidence that was the product of an unlawful procedure in the issuance, service, and execution of the search warrant. In particular, defendant argues there was no showing that the person alleged to have...