State v. Bankhead

• Decision Date: 04 October 1973
• Docket Number: No. 13110,13110
• Citation: 30 Utah 2d 135,514 P.2d 800
• Parties: d 135 The STATE of Utah, Plaintiff and Respondent, v. Katherine BANKHEAD, Defendant and Appellant.
• Court: Utah Supreme Court

Page 800

514 P.2d 800

30 Utah 2d 135

The STATE of Utah, Plaintiff and Respondent, v. Katherine BANKHEAD, Defendant and Appellant.

No. 13110.

Supreme Court of Utah.

Oct. 4, 1973.

Bruce C. Lubeck, Salt Lake Legal Defender Assn., Salt Lake City, for defendant and appellant.

Vernon B. Romney, Atty. Gen., David L. Wilkinson, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

CALLISTER, Chief Justice:

Defendant appeals from her conviction, in a trial before the court, of the crime of unlawful possession for sale of a narcotic drug, heroin.

Pursuant to a search warrant, the Salt Lake City Police entered the premises rented by defendant and seized a sizable quantity of narcotics and paraphernalia. Defendant was arrested, and a search of her person revealed $340 in small denominations concealed in her undergarments. There were four other persons present on the premises at the time the police entered. Defendant testified that she was the tenant who rented the premises; that she was a heroin addict; that she owned approximately one half of the 308 balloons filled with heroin; and that she had purchased an ounce of heroin the day prior to her arrest and 'cut' it and put it in balloons in order to keep account of the quantity of narcotics she was using.

Defendant contends that the trial court erred in its denial of a motion to compel disclosure of the identity of a confidential informant at a pretrial hearing to suppress the evidence seized pursuant to the search warrant. Defendant argued that there was no probable cause to support the issuance of the search warrant, unless the statements in the affidavit were true, and she must learn the identity of the informant; so that she might secure the informer's presence in court and question him to determine the factuality of the activities described in the affidavit.

At the hearing Officer Kramer testified that he and a fellow officer on September 18, 20 and 25, 1971, searched the confidential information and followed him to defendant's premises. The informant wore a concealed microphone; the receiver was in the officers' vehicle. On each occasion the informant purchased a substance which was subsequently established by laboratory tests to be heroin. Officer Kramer, the affiant in the affidavit to support the search warrant, further testified that on September 28, 1971, he observed in a period of four hours 12 persons go in and out of the subject premises; several of this group he recognized as known drug addicts.

At the hearing defense counsel conceded that if the statements in the affidavit were true that a credible informant went to the premises, purchased drugs, and gave them to the officers; these facts established probable cause. The defense further stated that neither Officer Kramer nor anyone else was being accused of swearing to falsehoods in the affidavit. Nevertheless, defendant claimed that she had a right to call the informer and determine if he actually purchased the narcotics as related in the affidavit.

Apart from the statutory proceeding in Secs. 77--54--17, 77--54--18, U.C.A.1953, wherein a hearing may be held to controvert the grounds upon which a warrant was issued before the issuing magistrate, ¹ one against whom a search warrant is directed may not dispute the matters alleged in the affidavit supporting the warrant. ² Furthermore, the courts will not compel disclosure of the identity of an informant, who has supplied probable cause for the issuance of a warrant, where disclosure is sought merely to aid in attacking probable cause. ³ Constitutional precepts do not require, as urged by defendant, the interrogation of an unidentified informant as the sole means to determine the reliability of his information. A supporting affidavit may be based on hearsay information; however, the magistrate must be informed of some of the underlying circumstances from which the affiant concluded that the informant was credible or his information reliable. Although the information is almost completely hearsay, the warrant may be upheld if there be sufficient information in the affidavit to provide a substantial basis for crediting the hearsay. ⁴

Defendant contends that the trial court erred by denying her motion at the end of the trial to discover the identity of the confidential informant on the ground that the informant might have provided favorable evidence for the defense. Defendant claims that the action of the trial court constituted a suppression of evidence favorable to the accused and denied her a fair trial.

Under Rule 36, U.R.E., evidence of the identity of an informer is inadmissible unless the judge finds that disclosure is essential to assure a fair determination of the issues.

The State successfully urged that the identity of the informer was irrelevant and immaterial to the issues of the case. Defendant was charged with possession of narcotics for sale; she claims that the testimony of the informer would exonerate her of this crime, if he testified that he purchased drugs from someone else on the premises. There was neither evidence adduced at the trial to support a conviction for sale of heroin, nor was defendant so charged. The transactions related in the supporting affidavit for the search warrant were not in issue at trial. Defendant does not suggest that the informant could refute the factors that contributed to her conviction, i.e., her dominion and control of the premises, and her admitted possession of a large quantity of heroin, packaged for individualized use. Defendant did not...