State v. Albert

• Decision Date: 31 May 1977
• Docket Number: CA-CR,No. 1,1
• Citation: 115 Ariz. 354,565 P.2d 534
• Parties: STATE of Arizona, Appellee, v. Gregory Lee ALBERT, Appellant. 2229.
• Court: Arizona Court of Appeals

Page 534

565 P.2d 534

115 Ariz. 354

STATE of Arizona, Appellee, v. Gregory Lee ALBERT, Appellant.

No. 1 CA-CR 2229.

Court of Appeals of Arizona, Division 1, Department A.

May 31, 1977.

Bruce E. Babbitt, Atty. Gen., by William J. Schafer, III, Chief Counsel, Crim. Div., and R. Wayne Ford, Asst. Attys. Gen., Phoenix, for appellee.

Aspey, Watkins & Diesel, by Harold L. Watkins, Flagstaff, for appellant.

OPINION

NELSON, Presiding Judge.

Defendant, Gregory Lee Albert, was convicted by a jury for possession of heroin and received a prison sentence of two to six years. On appeal from his conviction and sentence, defendant attacks the denial of his motion to suppress evidence on the basis of the sufficiency of the search warrant and affidavit on which the warrant was based. He also contends the introduction of these documents into evidence at trial was error. For the reasons stated below we find defendant's motion to suppress was properly denied but that the introduction of the affidavit and search warrant at trial requires reversal.

Defendant first contends the search warrant, which contained only the first names of defendant and his codefendant, Wayne Alvin Laird ¹, was fatally defective because it did not contain the suspects' last names. We disagree.

So long as a warrant describes the person to be searched in adequate detail to identify him with reasonable certainty, the description is sufficient. Dow v. Maryland, 207 Md. 80, 113 A.2d 423 (1955). In the present case, the warrant correctly specified the suspects' first names, gave their physical descriptions and contained the precise location at which they could be found. We hold this information was sufficient to allow the police to locate and identify the defendant and Laird with reasonable certainty and that the warrant was not invalid on this basis. United States v. Ferrone, 438 F.2d 381 (3rd Cir. 1971).

Defendant also contends the affidavit in support of the search warrant, which was based on information supplied by a confidential informant, was constitutionally insufficient to establish probable cause.

Under the tests 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.2d 637 (1969), an affidavit in support of a search warrant, when based entirely on the hearsay information of a confidential informant, must set forth facts which show the informant is reliable and the underlying factual circumstances which support the substance of the informant's tip.

The affidavit in the present case stated the affiant, a police officer, had "received information within the past 72 hours from a confidential and reliable informant" who had personally observed a usable quantity of heroin in the possession of defendant and Laird, being concealed at a specified address in Flagstaff, Arizona. The affidavit also recited "Your affiant believes the informant to be reliable because said informant has given your affiant and affiants (sic) fellow officers information that has led to the arrest of three (3) persons, said informant has also given your affiant and affiants (sic) fellow officers information in the past that has been checked through independent sources and has been true and correct. Said informant is familiar with Heroin (sic), and knows it when said informant sees it."

The final conclusory sentence of the affiant's statement conveys no underlying fact from which the magistrate might independently conclude the informant could reliably identify heroin. This deficiency, however, does not detract from the finding of probable cause since other underlying facts and circumstances are set forth from which the magistrate could have made the requisite findings. See State v. Torrez, 112 Ariz. 525, 544 P.2d 207 (1975). The first sentence recites the informant had provided reliable, verified information in the past which had led to the arrest of several persons. Further the affidavit recites the informant had personally observed heroin in the possession of the suspects. Under the authority established by cases in this jurisdiction, these factors were sufficient under Aguilar v. Texas, supra, and Spinelli v. United States, supra, to permit the magistrate to independently determine the information was reliable and the informant credible. See State v. Verrue, 106 Ariz. 325, 475 P.2d 939 (1970); State v. Watling, 104 Ariz. 354, 453 P.2d 500 (1969); State v. Moreno, 26 Ariz.App. 178, 547 P.2d 30 (1976); State v. Payne, 25 Ariz.App. 454, 544 P.2d 671 (1976); State v. Archer, 23 Ariz.App. 584, 534 P.2d 1083 (1975); State v. White, 13 Ariz.App. 265, 475 P.2d 750 (1970); State v. Ramos, 11 Ariz.App. 196, 463 P.2d 91 (1969). Compare United States v. Carmichael, 489 F.2d 983 (7th Cir. 1973).

Defendant next contends the introduction of the affidavit and search warrant at trial violated his constitutional right to confront the witnesses against him.

Article II § 24 of the Arizona Constitution, 1 A.R.S., and the sixth amendment to the United States Constitution, 1 A.R.S., applicable to the states through the fourteenth amendment, guarantee the right of a criminal defendant to confront his accusers at trial. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Not all admissions of out-of-court statements by persons who do not testify at a defendant's trial constitute denial of a defendant's right of confrontation. See Annot., 23 L.Ed.2d 853 (1970). However,

" '(t)he primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.' Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L.Ed. 409, 411 (1895)." California v. Green, 399 U.S. 149, 157-158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970).

"A famous example is provided by the trial of Sir Walter Raleigh for...