Pierce v. State

• Decision Date: 18 November 1971
• Docket Number: No. A--16588,A--16588
• Citation: 491 P.2d 335
• Parties: Kenneth Alvis PIERCE, 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 335

491 P.2d 335

Kenneth Alvis PIERCE, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--16588.

Court of Criminal Appeals of Oklahoma.

Nov. 18, 1971.

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

Larry Derryberry, Atty. Gen., Jeff L. Hartmann, Mike D. Martin, Asst. Attys. Gen., for defendant in error.

BUSSEY, Presiding Judge:

Kenneth Alvis Pierce, hereinafter referred to as defendant, was charged, tried, and convicted in the District Court of Oklahoma County for the offense of Possession of Narcotic Drugs, After Former Conviction of a Felony. His punishment was fixed at ten (10) years imprisonment, and from said judgment and sentence, a timely appeal has been perfected to this Court.

Because of the propositions asserted, we do not deem it necessary to recite a detailed statement of facts. Suffice it to say that three Oklahoma City police officers searched the defendant's home, by authority of a search warrant, and found certain narcotics. The defendant's nephew testified for the defense that the items were brought to his uncle's house by Gloria Puckett without the defendant's knowledge.

The first proposition asserts that the motion to suppress the evidence should have been sustained because of the insufficiency of the affidavit for search warrant. The affidavit stated as follows:

'That the subject living at this address is known to the affiant as a narcotic user and seller and has been for several years, and that during the past week the affiant has observed numerous automobiles and persons known to the affiant as users of narcotics to come and go from this residence at various times during the day and night.

'Affiant further states that he has received information from an informant who has heretofore proven to be a reliable informant, that this informant did on the 10th day of March enter the above described premises and purchased a quantity of narcotic drugs. The informant also observed other narcotic drugs to be present in the house at the time he made this purchase. The informant also advised that he had personal knowledge of other narcotic users buying narcotic drugs from the occupant of the above listed property.'

The defendant cites as authority Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Leonard v. State, Okl.Cr., 453 P.2d 257; and, Holt v. State, Okl.Cr., 471 P.2d 957. We are of the opinion that the affidavit in the instant case is insufficient, applying the rulings of the above cited cases; however, we observe that the United States Supreme Court in the recent case of United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), again modified the standards testing the sufficiency of affidavit for search warrant. In Harris, supra, the affidavit was as follows:

'Roosevelt Harris has had a reputation with me for over four years as being a trafficker of nontaxpaid distilled spirits, and over this period I have received numerous information (sic) from all types of persons as to his activities. Constable Howard Johnson located a sizeable stash of illicit whiskey in an abandoned house under Harris' control during this period of time. This date, I have received information from a person who fears for their life (sic) and property should their name be revealed. I have interviewed this person, found this person to be a prudent person, and have, under a sworn verbal statement, gained the following information: This person has personal information of and has purchased illicit whiskey from within the residence described, for a period of more than 2 years, and most recently within the past 2 weeks, has knowledge of a person who purchased illicit whiskey within the past two days from the house, has personal knowledge that the illicit whiskey is consumed by purchasers in the outbuilding known and utilized as the 'dance hall,' and has seen Roosevelt Harris go to the other outbuilding, located about 50 yards from the residence, on numerous occasions, to obtain whiskey for this person and other persons.'

In reversing the judgment of the Court of Appeals and reinstating the judgment of conviction, the Court stated:

'A policeman's affidavit 'should...