State v. Allen
Decision Date | 21 July 1988 |
Docket Number | No. 49A04-8802-CR-35,49A04-8802-CR-35 |
Citation | 525 N.E.2d 1267 |
Parties | STATE of Indiana, Appellant, v. Glenn ALLEN, Appellee. |
Court | Indiana Appellate Court |
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellant.
John G. Forbes, Donn H. Wray, Stewart & Irwin, Indianapolis, for appellee.
The State appeals from the judgment of the Marion Municipal Court granting Glenn Allen's Motion to Suppress evidence of gambling seized from his apartment under a search warrant. The trial court decided that although it was established that certain telephone numbers were being used, there was no connection between the phone numbers and the place to be searched. The State alleges the trial court erred in granting Allen's motion because the affidavit offered in support of the warrant established probable cause. We agree that a fair reading of the affidavit reveals that it established probable cause, and, therefore, reverse and remand.
On March 11, 1987 Detective Kevin Kinnee of the Indianapolis Police Department filed an Affidavit for Search Warrant in the Marion County Municipal Court. We quote the pertinent parts:
would take bets over the phone using number 769-4482. I checked with communication corporation of Indiana and found that 769-4482 was listed to 435 North 1100 East Zionsville, Indiana and the person billed for the service is Donald Vanzee. Said informant has placed bets on sporting events with Mr. Vanzee in the past and is at this time still betting with Mr. Vanzee. I, Detective Kinnee, verified portions of the above, thru independent sources.
The magistrate issued a warrant, and the police executed a search the following day.
The search revealed that the apartment was the residence of Allen and Mark D. Sanders. The police found and seized gambling records and betting slips, over ten thousand dollars in cash that was hidden about the apartment, and a Smith & Wesson .45 caliber revolver (listed as stolen in Columbus, Indiana) with five rounds of ammunition found in a closet connected to Allen's bedroom.
Allen was charged on March 17, 1987 with Professional Gambling, a Class D felony, 1 and Promoting Professional Gambling, a Class D felony. 2 On August 3, 1987 Allen filed a Motion to Suppress asserting that the affidavit failed to establish probable cause and, consequently, the search was invalid. The trial court granted Allen's motion, precluding further prosecution of the case, and the State appealed. 3
The State asserts that the trial court erred in finding the affidavit failed to establish probable cause. The State concedes that the affidavit is not flawless and could have been better stated, but, that a practical, common-sense reading of the entire affidavit provided the magistrate with a sufficient factual basis from which to find probable cause. We agree.
To demonstrate probable cause to search premises, an affidavit must provide a sufficient basis of fact to permit a reasonably prudent person to believe that a search of those premises will uncover evidence of a crime. Woods v. State (1987), Ind.App., 514 N.E.2d 1277 (citing Carroll v. United States (1925), 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543.) An affidavit based on an informant's tip, such as the one here, has been considered open to question because the tip is hearsay and is consequently susceptible to concerns about perception and truthfulness. See, Spinelli v. United States (1969), 393 U.S. 410, 425, 89 S.Ct. 584, 593, 21 L.Ed.2d 637 (concurring opinion). If the tip is to form the basis for a finding of probable cause, the magistrate must have good reason to believe the tip is reliable. Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. Otherwise, the magistrate would be relinquishing his authority to the informant, and possibly to an overeager law enforcement officer. Culver v. State (1988), Ind.App., 519 N.E.2d 196 (citing Aguilar, supra ).
Yet, the Supreme Court has abandoned the double demands for perception and veracity formerly required under the so-called Aguilar-Spinelli test for informant reliability. Illinois v. Gates (1983), 462 U.S 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. Now, even though an informant's truthfulness and basis of knowledge are still important considerations, they are to be viewed as no more than "relevant considerations in the totality of circumstances analysis that traditionally guided probable cause determinations." Culver, supra (quoting Gates, supra at 230, 103 S.Ct. at 2328). In other words, the Court rejected what it believed had become too rigid a test for judging informant reliability and substituted a more flexible approach to making these determinations.
The Gates opinion set out guidelines for evaluating affidavits in a more flexible way. It described the magistrate's job as:
"... simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 238-239, 103 S.Ct. at 2332-2333.
Magistrates are to refrain from "excessively technical dissection of informants' tips;" Id., and from "judging bits and pieces of information in isolation." Massachusetts v. Upton (1984), 466 U.S. 727, 732, 104 S.Ct. 2085, 2087-2088, 80 L.Ed.2d 721. The Gates opinion stated there was no neat set of legal rules by which to judge informants' tips; instead, they should be judged by a common-sense overall approach.
Just as the Gates opinion set out the magistrate's role in making the initial decision about an affidavit, the Court also defined the parameters for a reviewing court's consideration of the magistrate's decision. This court is not to conduct a de novo review of an affidavit. Nor is this court to take a grudging or negative attitude toward warrants. Instead, we are to accord great deference to the magistrate's decision. Our task is simply to insure that the magistrate had a "substantial basis for conclud[ing]" that the affidavit established probable cause. Id., 462 U.S. at 238-239, 103 S.Ct. at 2332-2333 (citing Jones v. United States (1960), 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697).
Being mindful of the restraints that have been placed upon our appellate role in reviewing affidavits, we consider the case at hand. Here, the question before us is...
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