Rosa v. State, 5334

• Decision Date: 17 September 1981
• Docket Number: No. 5334,5334
• Parties: Mike A. ROSA, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 1027

633 P.2d 1027

Mike A. ROSA, Appellant, v. STATE of Alaska, Appellee.

No. 5334.

Court of Appeals of Alaska.

Sept. 17, 1981.

Ben Esch, Dickson, Evans & Esch, Anchorage, for appellant.

John A. Scukanec, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.

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

OPINION

PER CURIAM.

Michael Rosa appeals from his conviction and sentence for possession of cocaine.

Rosa's appeal of his conviction challenges the sufficiency of the affidavit upon which a search warrant issued. While we have found this a close case, we conclude that the affidavit contained enough "reliable information ... set forth in sufficient detail to warrant a reasonably prudent (person) in believing that a criminal offense has been ... committed," ¹ and, therefore, that probable cause for the search was shown.

A brief factual background is necessary for us to discuss our decision. The following facts, mostly undisputed, are established by the record:

On August 25, 1979, Gerald Davidovics, a nineteen-year-old high school student and Kotzebue policeman with two months experience, got a tip from a friend concerning some people in town selling cocaine. At the instruction of Alaska State Troopers, Davidovics "went undercover" to investigate the situation. He learned that the sellers were staying at the Nu-Luk-Vik Hotel, room 110. He went to the room at approximately 6 p. m., inquired about buying cocaine and was invited in by a man who was later identified as Frank Prince. Another man, later identified as Mike Rosa, produced white powder in bags, saying it was cocaine for sale at $3,000 an ounce. Prince showed Davidovics three bags of green vegetable matter, saying it was marijuana for sale. Davidovics smoked a joint with Prince, arranged to purchase one or two small bags of marijuana at $80 dollars a bag, then left, saying he had to get his money.

Davidovics went to the troopers, who searched him, then supplied him with $160 after recording the serial numbers of the bills. The troopers escorted him back to the hotel. Davidovics knocked, re-entered the room, and with little further conversation laid $160 on the hotel dresser and was permitted to take two small bags. As Davidovics opened the door to leave the room, he accidently knocked some shirts off hangers; while he bent to pick them up, Trooper Patterson and another officer entered into the room, telling the two men they were under arrest.

Trooper Patterson's testimony corroborated Davidovics' statements beginning with giving the young policeman the $160, following him to the hotel, and watching him enter room 110. Patterson testified that they had prearranged a signal whereby if a sale were consummated, Davidovics would open the door to the hotel room and remain inside on some pretext. ² Upon entering the room to arrest the men, Patterson observed a small baggie with green vegetable matter, additional green vegetable matter, seeds, and money on the dresser, as well as white matter in bags in an open telephone stand that Davidovics had described as the place where the cocaine was stashed. The marijuana and the money were seized as well as the two small baggies purchased by Davidovics. A field test on each baggie indicated the presence of marijuana.

Following the arrest, Patterson and Davidovics obtained a search warrant from Magistrate Schaeffer; approximately two hours elapsed between the arrest and execution of the warrant.

Although the officers obviously had enough information to establish probable cause to obtain a warrant, the parties correctly agree that only the information that is expressly contained in the affidavit submitted in support of the search warrant can be considered in determining whether there was sufficient probable cause to support the issuance of the warrant in this case. We therefore set forth the search warrant affidavit. Page one of the affidavit for search warrant is a preprinted form which, as filled in, reads as follows: ³

The undersigned, being duly sworn, states that they are positive that on the premises known as Room 110, Nu-Luk-Vik Hotel at or near Kotzebue, in the State of Alaska, there is now being concealed certain property namely:

Green vegetable material, refered to by Mike Prince and Frank Prince ⁴ as Marahuana. And a white substance refered to by Frank Prince and Mike Prince as cocaine.

which ... is evidence of the particular crimes of Sale of Marahuana and Possession of Cocaine (and) tends to show that Frank and Mike Prince committed the particular crimes of Possession of Cocaine Sale of Marahuana....

Page two of the affidavit begins with the preprinted words "and the facts tending to establish the foregoing grounds for issuance of a search warrant are as follows:" Thereafter, the following language appears:

That the two men known as Mike and Frank Prince, residing in room 110, of the nu-luk-vik hotel, provided your affiant, Gerald Davidovics, with two plastic baggies of a green vegatable material, in exchange for eighty dollars ($80.00), which they said was marahuana. Further that they offered for sale a white substance in plastic bags which they said was cocaine.

The cocaine was offered at three thousand dollars per baggie. Further that your affiant was provided with money by Trooper W. L. Patterson with which to purchase the marahuana. Further that an agreement was made to purchase the cocaine at a later date. And that an actual purchase was made of two (2) baggies of marahuana. The white substance was contained in at least five plastic baggies.

And upon the knowledge of your affiant, W. L. Patterson, that Gerald Davidovics was provided with money for the purchase of marahuana, and he purchased a substance that was field tested as marajuana. And that the money was located within the room, in which Gerald Davidovics was standing. ⁵

The affidavit was signed by W. L. Patterson, state trooper, and Gerald Davidovics, police officer. It was witnessed by Magistrate Ross Schaeffer, and signed, sealed, and dated August 15, 1979.

The warrant that Magistrate Schaeffer issued tracks the affidavit. The warrant grants authority to search room 110 at any time within ten days and to seize green vegetable material and a white substance. When the warrant was executed at 8:15 p. m. on the evening of August 15, approximately two pounds of green vegetable material and 4 envelopes of white substance were seized, plus seeds, cigarette papers, baggies, foil, a wallet, and other miscellaneous items.

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. Johnson v. State, 617 P.2d 1117, 1122 (Alaska 1980); Lockwood v. State, 591 P.2d 969, 970-71 (Alaska 1979); Ellsworth v. State, 582 P.2d 636, 638 (Alaska 1978). As the supreme court said in State v. Davenport, 510 P.2d 78, 82 n.8 (Alaska 1973), quoting United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684, 689 (1965), ⁶ "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....' " See also Nelson v. State, 628 P.2d 884, 892-93 (Alaska 1981) (permitting reasonable inference that ties testimony together); Vessell v. State, 624 P.2d 275 (Alaska 1981) (rejecting claim based on too literal reading of affidavit, where affidavit as a whole indicated probable cause). The burden of proof on questions pertaining to the sufficiency of the affidavit is on the defendant. Johnson v. State, 617 P.2d at 1125.

Rosa contends that the affidavit fails to provide any time frame whatsoever or any nexus between the alleged drug dealing and the hotel room. ⁷ We disagree and hold that the affidavit, taken as a whole and with reasonable inferences from the information contained in the affidavit, established probable cause to believe that marijuana and cocaine would be found in room 110 of the Nu-Luk-Vik Hotel. First, all of the information in the affidavit is based on first-hand knowledge of police officers; no part is hearsay from either a named or unnamed informant. The affidavit is not merely conclusory, but supplies details of the alleged crime. ⁸ Second, we believe that a common sense reading of the whole affidavit establishes that Gerald Davidovics, a police officer, had recently purchased the marijuana in room 110 and had made a future agreement to purchase cocaine that he saw at the time he made the marijuana purchase. ⁹

Although Patterson and Davidovics did a very poor job of transferring their knowledge to the affidavit form, they possessed ample first-hand knowledge at the time that they applied for the warrant to establish probable cause to support issuance of a search warrant for the hotel room. ¹⁰ In light of the deference owed to the magistrate and to the cases that require a common sense, nontechnical reading of affidavits, we affirm the superior court's conclusion that the affidavit backing the search warrant adequately demonstrated probable cause for the search of room 110.

Rosa also challenges his sentence as excessive. Following the search, he was charged with possession and sale of marijuana and possession of cocaine. The marijuana charges were dismissed by the superior court, which ruled that insufficient evidence linked the marijuana to Rosa. ¹¹ Rosa was convicted after a jury trial of possession of slightly less than four ounces of cocaine in violation of AS 17.10.010. He was sentenced to three years imprisonment with one year suspended. Rosa's offense is adequately described in the above discussion of the search warrant, but additional facts about the offender and the sentencing must be presented.

Rosa, thirty-eight years old at the time of the crime, was born in Puerto Rico and moved to New York City...