State v. Austria
| Citation | 55 Haw. 565,524 P.2d 290 |
| Decision Date | 11 July 1974 |
| Docket Number | No. 5568,5568 |
| Parties | STATE of Hawaii, Plaintiff-Appellant, v. Narcisso AUSTRIA, Defendant-Appellee (two cases). STATE of Hawaii, Plaintiff-Appellant, v. Frederico DERIZA et al., Defendants-Appellees. |
| Court | Supreme Court of Hawai'i |
Syllabus by the Court
1. If the facts contained in an affidavit for a search warrant, taken together with all reasonable inferences from those facts, support the existence of probable cause, then circuit courts and this court are constrained to uphold that finding by the district judge who issued the warrant, even though other inferences from the facts might point to an opposite conclusion.
2. Where a confidential informer's allegation of illegal gambling activity, contained in a police officer's affidavit, is necessary to form the essential elements of probable cause for a search warrant, then in order for a finding of probable cause to be sustained the affidavit must also set out some of the underlying circumstances from which the informer concluded that the illegal activity was taking place and some of the underlying circumstances from which the police officer concluded that the informer was reliable.
3. An affidavit for a search warrant which states that a confidential informer has given four prior tips to the police which have proven correct and which have led to the arrest of over twenty individuals suffices to establish the probable cause requirement that the affidavit set forth the underlying circumstances for the affiant's conclusion that the informer is reliable.
4. An affidavit for a search warrant which states that a confidential informer has personally observed and participated in illegal activity suffices to establish the probable cause requirement that the affidavit set forth the underlying circumstances on which the informer based his allegation of that illegal activity.
5. While a stale tip by a confidential informer cannot provide probable cause for a warrant, if there is a reasonable basis in a police officer's affidavit for the conclusion that the criminal activity alleged by the informer is of a continuing, ongoing nature, the possible passage of 22 days between the informer's last observations of that activity and the issuance of the warrant does not vitiate the otherwise permissible finding of probable cause by the issuing judge.
Paul M. De Silva, Pros. Atty., County of Hawaii, Hilo, for plaintiff-appellant.
Steven K. Christensen, Hilo, for defendants-appellees.
Before RICHARDSON, C. J., and LEVINSON, KOBAYASHI, OGATA and MENOR, JJ.
The sole question in this appeal is the sufficiency of a police officer's affidavit to support a search warrant. The defendants were charged with the offense of Promoting Gambling in the Second Degree, HRS § 712-1222 (Supp.1973). They moved to suppress evidence of the charged offense which had been seized pursuant to a search by search warrant of an alleged illegal gambling establishment. The circuit court found a lack of probable cause to support the search warrant, and ordered suppression of all evidence resulting from the warrant's execution. From this order the State appealed. We find that the affidavit presented to the district judge who issued the warrant supports his finding of probable cause, and therefore we reverse the circuit court's suppression order.
The affidavit for a search warrant was made by Sergeant William Loeffler of the Hawaii Police Department, County of Hawaii. It recites his belief that at a specified location 'gambling activities are being conducted in which cards and dice are being used and United States monies are being won and lost, gambling paraphernalia is being exhibited and someone receives something of value or any profit other than as a player.' In support of this allegation, the affidavit states '(t)hat during the month of April, 1973, a reliable confidential informer met with your Affiant and informed your Affiant that gambling activities were taking place regularly on Fridays, Saturdays and Sundays during the night time' at the suspect location. After asserting that the informer 'personally observed and participated in the gambling activity on several occasions' (emphasis added), the affidavit recites fully the informer's detailed description of the premises, the type of gambling activity alleged, and the names of some of the participants. It avers that the informer participated in the gambling activities 'during the month of April, 1973, the exact date not() stated as the identity of the informer might then be known,' (emphasis added), but continues '(t)hat on the days that the informer stated that he went into the area hereinbefore described, your affiant went to the area on at least two occasions and . . . observed the said informer entering the home described and four persons known to be gamblers entering and leaving the area, the time being between 9:30 PM and 3:00 AM.' (Emphasis added).
To substantiate the informer's reliability and credibility, the affidavit asserts that the informer 'has on at least four occasions given the police correct information concerning law violations which have been proven correct and accurate upon independent verification.' The informer's past tips, according to the affidavit, had 'led to the arrest of over 20 persons for crime violations.'
Sergeant Loeffler subscribed to the affidavit on April 22, 1973, and the search warrant it supports was issued and executed the same day.
In our recent decision, State v. Davenport, 55 Haw. 90, 98, 516 P.2d 65, 71 (1973), we admonished that a reviewing court 'should accord considerable weight to the admittedly unbiased judgment of the district magistrate (now district judge) who issue(§ a search) warrant . . . in order to encourage police officers, whenever possible, to present their cases for arrests or searches to impartial judicial officers before taking action.' This rule of review, as Davenport suggests, finds its roots in the preference for warrant practice expressed in the federal and state constitutions. United States v. Ventresca, 380 U.S. 102, 105-109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). If its policy of encouraging the police to apply for warrants is to be furthered, its disapproval of a 'grudging or negative attitude by reviewing courts toward warrants,' id. at 108, 85 S.Ct. at 746, must speak to circuit court review of warrants in suppression hearings no less than to appellate review of warrants by this court.
We are mindful of the responsibility of the judiciary in this State to resist erosion of the constitutional right to privacy. To this end, this court has never hesitated to subject assertedly unreasonable police searches to rigorous judicial scrutiny. See, e. g., State v. Kaluna, 55 Haw. 361, 520 P.2d 51 (1974). Yet insofar as the record of a case reveals a 'substantial basis' for a district judge's conclusion of probable cause in warrant proceedings, a reviewing court would be remiss in its important obligation to encourage the use of warrants were it to undertake an independent view of the facts. Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); see Skelton v. Superior Court, 1 Cal.3d 144, 81 Cal.Rptr. 613, 460 P.2d 485 (1969). Of course, conclusory allegations of criminal activity cannot substitute for facts to that effect, even in warrant proceedings. But if the facts contained in an affidavit, taken together with all reasonable inferences from those facts, support the existence of probable cause, circuit courts and this court are constrained to uphold that finding by a district judge even though other inferences from the facts might point to an opposite conclusion. See State v. Appleton, 297 A.2d 363 (Me. 1972).
With these general guidelines for review in mind, we proceed to the facts of the present case. It is undisputed that the informer's allegation of illegal gambling activity was necessary to form the essential elements of probable cause. This being the case, as we held in State v. Davenport,supra 55 Haw. at 93, 516 P.2d at 68, in order for a finding of probable cause to be sustained:
(U)nder the constitutionally mandated test of Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964) the affidavit must set out
some of the underlying circumstances from which the informant concluded that the (contraband was) where he claimed (it was), and some of the underlying circumstances from which the officer concluded that...
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