State v. Bailey

• Decision Date: 19 January 1984
• Docket Number: No. 18558,18558
• Citation: 675 P.2d 1203
• Parties: STATE of Utah, Plaintiff and Respondent, v. Wilbur Henry BAILEY, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1203

675 P.2d 1203

STATE of Utah, Plaintiff and Respondent, v. Wilbur Henry BAILEY, Defendant and Appellant.

No. 18558.

Supreme Court of Utah.

Jan. 19, 1984.

L. Long, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

STEWART, Justice:

The defendant, Wilbur Henry Bailey, appeals from a conviction of burglary and theft. The trial court denied the defendant's motion to suppress evidence seized pursuant to a search warrant. The only issues on appeal are (1) whether there was probable cause for the issuance of the search warrant, and (2) whether the return of the search warrant was in accordance with state law. We affirm.

A few days after a burglary of a car repair shop, an informant volunteered to a police officer information concerning the recent burglary. The informant told the police that the defendant and another person had shown and offered to sell him tools and car parts; that the defendant in the informant's presence had admitted to another that the defendant had stolen the tools and parts from a store in the vicinity of 3900 South and State Street in Salt Lake City; and that the defendant had stated that he had also taken a customer's car. The informant gave the police the address and a description of the apartment where he had seen the stolen goods. Because he feared retaliation and knew that the defendant and his friend owned guns, the informant asked to remain anonymous.

The informant's stated reason for providing this information was that he considered it his duty as a citizen and wanted to help stop burglaries and thefts. No reward or favor was asked. The police checked the informant's record and found that he had no felony arrests and was not a suspect in any case. Further, the informant had previously given reliable information to the police regarding stolen vehicles.

Acting on the informant's tip, the police verified that there had been a burglary at an automotive repair shop located at 3939 South State Street, Salt Lake City, Utah, and that a customer's car and large quantities of car repair supplies and tools had been stolen. The police then checked the defendant's apartment before asking for a warrant and found that the description the informant gave matched the actual apartment. The police also checked the record of the defendant's friend and found that the friend had an extensive record for burglary and auto theft.

In support of an application to a magistrate for a search warrant, the police relied on the informant's information, and a warrant was issued. Pursuant to the warrant, the police conducted a search, found several car parts and tools in the apartment, and an inventory of the goods found was made and returned to the magistrate. There is some confusion in the record as to the magistrate's instructions regarding where the return of the search warrant and the inventory were to be filed. In any event, they were returned to the circuit court. The defendant argues that because the documents were filed in the circuit court it was not until the case came to trial in the district court, about five months after the search and seizure, that the defendant first obtained access to the affidavit, warrant, and return.

On appeal, the defendant relies on the Fourth Amendment to the United States Constitution and argues that the affidavit in support of the warrant was defective on its face because it stated no facts establishing the informant's reliability. As support, he cites 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), which hold that the Fourth Amendment requires that affidavits based on informants' tips must set out "underlying circumstances" sufficient (1) to reveal the basis of the informant's knowledge, and (2) to establish the veracity of the informant or alternatively, the reliability of his report in a particular case. In the instant case, the defendant does not dispute the informant's "basis of knowledge." The informant saw the stolen goods and heard the defendant say that he had burglarized an automotive shop. The defendant does, however, dispute whether the veracity of the informant was adequately established. The defendant claims that in the instant case the only reference on the face of the affidavit to the informant's veracity is a statement that "the citizen informant appears to be of good character."

In State v. Anderton, Utah, 668 P.2d 1258 (1983), we recently reviewed the two-pronged test of Aguilar and Spinelli. We observed that the Aguilar-Spinelli test is not to be mechanically applied, but that a magistrate should use his common sense in issuing warrants. Quoting from Spinelli, supra, 393 U.S. at 419, 89 S.Ct. at 590, we stated:

[P]robability, and not a prima facie showing, of criminal activity is the standard of probable cause.... [I]n judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions of the use of their common sense, and that their determination of probable cause should be paid great deference by reviewing courts.

We also observed that in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court recently adopted a flexible "totality of the circumstances" standard and abandoned the more rigid Aguilar-Spinelli test. In Gates the Court stated:

[W]e conclude that it is wiser to abandon the "two-pronged test" established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality...