Morrow v. State, A-510

• Citation: 704 P.2d 226
• Decision Date: 09 August 1985
• Docket Number: No. A-510,A-510
• Parties: Jo Ann MORROW, Appellant, v. STATE of Alaska, Appellee.
• Court: Court of Appeals of Alaska

Page 226

704 P.2d 226

Jo Ann MORROW, Appellant, v. STATE of Alaska, Appellee.

No. A-510.

Court of Appeals of Alaska.

Aug. 9, 1985.

Carl E. Forsberg, Birch, Horton, Bittner, Pestinger and Anderson, Anchorage, for appellant.

John A. Scukanec, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

COATS, Judge.

On December 1, 1983, the mother of a sixteen-year-old juvenile, M.W., contacted Alaska State Trooper Geoffrey Engleman. M.W.'s mother informed Trooper Engleman that she believed her daughter was dealing drugs. Later that day, Trooper Engleman and another officer met with M.W.'s mother at her residence. There, she informed them that she had discovered plastic bags containing pills in M.W.'s purse. An officer then searched M.W.'s purse and discovered six plastic bags containing different colored pills.

Subsequently, Trooper Engleman interviewed M.W. At that time, M.W. informed the trooper that seven to nine days previously, Jo Ann Morrow had supplied her with 300 pills. She had obtained them from Morrow while in Morrow's car. At that time, Morrow told M.W. the pills were "speed" and instructed M.W. to sell each pill for $1.00. Morrow told M.W. she would receive 1/3 of the money from the sales and if M.W. ran out of pills, Morrow could supply more. M.W. also stated that she had sold some of the pills and had given Morrow $39 and Morrow had returned $12 or $14 to M.W. on November 30, 1983, as commission on the sales.

Trooper Engleman had the pills field-tested and determined that they were not "speed." However, because of their appearance, they could pass for "speed" on the street. Subsequent laboratory tests disclosed that the pills contained caffeine and ephedrine.

Based on the information provided by M.W., and his own familiarity with "fake controlled substances," Trooper Engleman obtained a search warrant for Morrow's residence. The warrant authorized a search of the residence for: drugs which appeared to be amphetamine based; written records of the ordering of such drugs; and magazines or books from which such drugs could be ordered. A search of the residence on December 1, 1983, resulted in the seizure of: approximately 5,000 tablets and capsules, similar to those obtained from M.W.; brochures advertising diet pills and stimulants; various items of drug paraphernalia; and from Morrow's purse, a list of names and telephone numbers, including M.W.'s.

On December 6, 1983, a grand jury returned a two-count indictment charging Morrow with delivery of an imitation controlled substance to a minor and possession of an imitation controlled substance with intent to deliver. AS 11.73.030(a); AS 11.73.010(a). On March 10, 1984, a jury returned a verdict of guilty on the possession with intent to deliver charge only.

Morrow now appeals, raising the following issues: (1) that the trial court erred by denying her motion to suppress evidence because the search warrant for her residence was not supported by probable cause; (2) that the trial court erred in denying her motion to dismiss the indictment because hearsay evidence was presented to the grand jury in the form of a "telex" preliminary lab report; and (3) that AS 11.73.099, the statute defining "imitation controlled substances," is unconstitutional.

SEARCH WARRANT ISSUES

The standard of review regarding a magistrate's determination of probable cause was enunciated in Rosa v. State, 633 P.2d 1027, (Alaska App.1981), where this court said:

In reviewing a magistrate's determination of probable cause this court must give great deference to the magistrate's decision and must resolve doubtful or marginal cases largely by the preference to be accorded warrants.... "The Fourth Amendment's requirements are practical and not abstract, and affidavits 'must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion....' " The burden of proof on questions pertaining to the sufficiency of the affidavit is on the defendant. [Citations and footnotes omitted.]

Id. at 1029-30, quoting State v. Davenport, 510 P.2d 78, 82 n. 8 (Alaska 1973). With these standards in mind, the question to be asked is "whether the issuing judge [or magistrate] was provided sufficient evidence to make an independent finding of probable cause" to issue a warrant. Lockwood v. State, 591 P.2d 969, 970 (Alaska 1979), quoting Davis v. State, 499 P.2d 1025, 1028 (Alaska 1972), rev'd on other grounds, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

Morrow argues that the affidavit in support of the search warrant was inadequate because there was no indication that M.W. was a credible informant. See Kralick v. State, 647 P.2d 1120, 1124-25 (Alaska App.1982). Morrow argues that the affidavit does not make any allegation that M.W. had given reliable information in the past and the police did not conduct an independent investigation to corroborate her statements. Morrow also contends that this warrant is defective for the same reasons we articulated in Jones v. State, 681 P.2d 364 (Alaska App.1984). In Jones we held that an affidavit in support of a search warrant by a police detective was not sufficient where the detective relied on a report by a juvenile informant that he witnessed a sale of one-half gram of cocaine at Casey Jones's apartment. The juvenile also stated that he had been to the apartment several times when "he or his companions have purchased cocaine from Jones in the last few months." Id. at 365. The juvenile also pointed out an apartment which was confirmed by another police officer to be Jones's apartment. In noting that the hearsay statement of the juvenile informant was not sufficient to support the warrant, we stated:

Moreover, B.V.'s statements that he had observed a friend purchase cocaine and that he had been to Jones's apartment ten to fifteen times when "he or his companions" had purchased cocaine do not qualify as the kind of declarations against penal interest which a court could find inherently credible. It is not a crime to be present when someone else is purchasing cocaine even though that someone else is a friend; nor would vague admissions about past purchases of cocaine support a criminal prosecution in the absence of evidence establishing a corpus delicti for a specific purchase. More significantly, the affidavit does not explain the circumstances under which B.V.'s statement was made. If B.V. was being prosecuted by juvenile authorities for drug transactions unrelated to Casey Jones, he would hardly view his statement that he had purchased cocaine in the past from Jones as increasing his exposure to criminal sanctions.

Id. at 365.

We see the situation in this case as significantly different from that in Jones. M.W. had the imitation drugs in her possession and apparently believed that she was confessing to the police that she had been selling amphetamines. There was every reason for the magistrate to credit her story as a declaration against interest. 1 W. LaFave, Search and Seizure, § 3.3(c) (1978). We conclude that M.W.'s credibility was adequately supported.

Morrow next argues that the affidavit in support of the warrant did not establish probable cause because it was based on stale information. She argues this is true because M.W.'s alleged transaction with Morrow had occurred seven to nine days prior to the issuance of the warrant.

In Snyder v. State, 661 P.2d 638, 647 (Alaska App.1983), this court said:

The question of whether the information contained in the affidavit was "stale" depends on an evaluation of the circumstances related by the affidavit and the length of time between the issuance of the search warrant and the time of the most recent incriminating activity described in the affidavit.

In evaluating "staleness," this court has chosen to evaluate the following four factors: (1) the type of crime; (2) the nature of the items sought; (3) the extent of the suspect's opportunity for concealment; and (4) normal inferences as to where a criminal would be likely to hide incriminating articles. Id. at 648.

It appears that the magistrate could have properly concluded the information was not stale because the affidavit evidenced ongoing criminal activity. See, e.g., 1 W. LaFave, Search and Seizure § 3.7(a), at 683-87 (1978); State v. Ogden, 391 So.2d 434 (La.1980) (probable cause found despite fact that drug sale took place five days prior to the issuance of the warrant where the informant's statements indicated continuous activity and drug transactions, supporting an inference that a continuing supply of cocaine would be available). On the present facts, the affidavit stated that although the actual capsules and tablets were obtained from Morrow seven to nine days previously, money had been turned over to Morrow "within the last few days." Also, Morrow had represented to M.W. that if M.W. "sold out" of the substances, Morrow could readily obtain more. We conclude that the magistrate could properly find that there was probable cause that Morrow was still in possession of the imitation drugs and related material.

Next Morrow argues that because M.W. indicated she obtained the pills from Morrow while Morrow was in her car, there was no nexus between Morrow's residence and the items to be searched for.

In Snyder, 661 P.2d at 645, we said:

Probable cause to search requires sufficient information to permit the conclusion that criminal activity or evidence of crime will be found at the place to be searched. Put another way, there must be a "nexus" between the place to be searched, criminal activity, and the items sought. 1 W. LaFave, Search and Seizure § 3.7(d), at 704 (1978).

See also State v. Gutman, 670 P.2d 1166 (Alaska App.1983). We believe that the magistrate could properly conclude from the continuing contacts between M.W. and Morrow that Morrow was engaged in an ongoing business and it is logical to assume that...