State v. O'Bryan, 11232

• Decision Date: 20 February 1975
• Docket Number: No. 11232,11232
• Citation: 96 Idaho 548,531 P.2d 1193
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Patrick Edward O'BRYAN, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1193

531 P.2d 1193

96 Idaho 548

The STATE of Idaho, Plaintiff-Respondent, v. Patrick Edward O'BRYAN, Defendant-Appellant.

No. 11232.

Supreme Court of Idaho.

Feb. 20, 1975.

E. Don Copple, Davision, Copple & Copple, Boise, for defendant-appellant.

W. Anthony Park, Atty. Gen., Warren Felton, Asst. Atty. Gen., Boise, for plaintiff-respondent.

DONALDSON, Justice.

Appellant Patrick Edward O'Bryan flew to California in February, 1972 to close a land transaction. While there, in an attempt to obtain some marijuana, he went to the student union building at the college in Long Beach. The appellant learned the name of an individual, who subsequent to the initial meeting, advised appellant that he had a large amount of marijuana to sell. Following negotiation and substantial reduction in price, the appellant purchased the marijuana for $3,000 cash.

The marijuana was actually sold in the form of hashish, a concentrated derivative. Nearly four pounds were delivered in four large clear plastic sacks each containing approximately sixty smaller sacks. The appellant placed the marijuana in a flight bag, and upon return to Boise, deposited it in a coin operated storage locker at the Greyhound Bus Depot.

Due to its continued occupancy without payment of the daily rental, on February 27, 1972, a Greyhound ticket agent opened the storage locker in question. Such opening was a matter of routine and done preparatory to ordering a new lock. Upon so doing, the agent detected a strong odor and therefore opened the flight bag in an attempt to determine its cause. He and another Greyhound agent saw what they 'thought to be dope,' and together called the police.

An officer arrived at the scene, observed the bag from a distance of five feet, and detected a strong odor of marijuana. He prepared an affidavit and obtained a search warrant whereupon the police looked inside the bag. Its contents were cataloged, photographed, and in part placed back in the locker. On February 29, 1972, the appellant walked into the depot with the key to the locker, paid the delinquent charges, picked up the bag and was arrested. He was charged with illegal possession of a controlled substance, to-wit: marijuana with intent to deliver. (I.C. § 37-2732-felony.) Trial by jury was held, and the appellant was found guilty of the crime as charged. The trial court entered judgment of conviction from which O'Bryan perfected appeal.

The appellant initially assigns as error the trial court's failure to suppress all evidence seized pursuant to the search warrant. Prior to trial, O'Bryan filed a motion to suppress evidence based on the grounds that the search warrant and supporting affidavit were insufficient on their face and invalid because no probable cause existed for believing the grounds alleged in the affidavit on which the warrant was issued.

The record supports that on February 19, 1972, Gary Smith, a ticket agent for Greyhound, conducted an inventory of the storage lockers at the Greyhound depot. The locker in question was found to be in use. On February 20, 1972, the locker was blocked so that it could only be opened by Greyhound personnel. That action was taken pursuant to the contract appearing on each locker door:

'American Locker Service. 25cents for twenty-four hours or fraction thereof. Overtime storage charges 50cents for each additional twenty-four hours or fraction thereof. Contract liability: not over $10.00 for loss or damage. No liability for perishable goods after twenty-four hours. Contents may be removed and held 90 days then sold for accrued charge. Directions: 1. Find locker with key in lock. 2. Pull door open. Put in luggage. 3. Open door, insert quarter under key. 4. Close door. Turn and remove key. The key is your check.'

On February 27, 1972, Gary Smith opened the locker in question and testified that he was met with an extremely strong oror. The locker was opened pursuant to the following standard procedure: A continuous renter was given five days to return the key and pay overtime charges. If the locker was not called for, a new lock was ordered, and upon its arrival, the locker contents were checked into a secure storage area. Perishable or spoiled items were destroyed prior to checking into storage.

No name appeared on the outside of the flight bag. Therefore, Smith opened it in an attempt to determine both its owner and the cause of odor. Inside he observed the before described plastic sacks. He called Archie Knapp, a baggage man on duty at the time, and together they decided to notify the police.

The call was received by Sergeant Vernon Bisterfeldt who was assigned to the City-County Vice and Intelligence Division at the time. He instructed a fellow officer, Clayton Almquist, to investigate. Upon arrival, Almquist was taken to a back room where he looked through a door a saw the flight bag in question along with plastic sacks protruding from the top. The record indicates that he detected the strong odor of marijuana or hashish. He called Sergeant Bisterfeldt and a decision was made to obtain a search warrant. Officer Almquist prepared, signed and filed an affidavit whereupon a warrant issued.

The appellant argues that the affidavit does not include facts which show Gary Smith to be credible or his information reliable. As such, the appellant relies upon the two-pronged test established 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). Therein, the United States Supreme Court established constitutional guidelines for measuring hearsay information in a probable cause setting. The credibility test which has become known as the 'veracity' prong requires a showing of knowledge of some of the underlying circumstances which lead to the conclusion that the informant is credible or his information reliable. The second test, known as the 'basis of knowledge' prong, requires a showing of knowledge of some of the underlying circumstances upon which the informant based his conclusion.

In considering the 'veracity' prong, the appellant would have us apply the same rules to a citizen observer as were applied to the so-called confidential, reliable informants dealt with in Aguilar and Spinelli. Courts have recognized the a different rationale exists for establishing the reliability of named citizen-informers. Krauss v. Superior Court of San Joaquin County, 5 Cal.3d 418, 96 Cal.Rptr. 455, 487 P.2d 1023, 1026 (1971); People v. Hoffman, 45 Ill.2d 221, 258 N.E.2d 326, 328 (1970). In People v. Hubbard, 519 P.2d 951 (Colo. 1974), the Supreme Court of Colorado stated:

'* * * when the source of the information is a citizen-informant who was an eyewitness to the crime and is identified, the information is presumed to be reliable, and the prosecution is not required to establish either the credibility of the informant or the reliability of his information. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); People v. Glaubman, 175 Colo. 41, 485 P.2d 711 (1971).' 519 P.2d at 953.

A citizen informant identified by name and address should not be considered as an ordinary confidential informant. Operating under the presumption above, we believe constitutional safeguards are met when the affidavit supporting a search warrant contains the name and address of a citizen-informant along with a statement of underlying circumstances upon which the information based his conclusion.

The circumstances related by Gary Smith to Officer Almquist in this case clearly satisfy the 'basis of knowledge' prong and are sufficient to establish probable cause of the existence of marijuana. As such, issuance of the search warrant was valid.

Notwithstanding the finding above, we further believe the search was valid due to Greyhound's lawful voluntary consent by virtue of the rental agreement. The contract on the face of the locker stated that the '(c)ontents may be removed the held 90 days then sold for accrued charge.' Idaho Code § 45-108 states that a lien may be created by contract to take immediate effect as security for performance of future obligations not then in existence. I.C. § 45-805 states:

'Every person who, while lawfully in possession of an article of personal property, renders and service to the owner thereof, by labor, or skill, employed for the protection, improvement, safe keeping, or carriage thereof, has a special lien thereon, dependent on possession, for the compensation, if any, which is due him from the owner, for such service * * *.'

Subsequent to proper removal of the marijuana from the locker, Greyhound had exclusive possession of the property in question as protected by law. That right of exclusive possession was effective as against the true owner until the rental was paid. Therefore, consent was lawful and valid. See State v. Oldham, 92 Idaho 124, 438 P.2d 275 (1968); State v. Polson, 81 Idaho 147, 339 P.2d 510 (1959).

The appellant next assigns as error the trial court's refusal to dismiss the information. An amended motion to dismiss was filed on the following grounds:

'(1) The classification of marijuana as a Schedule I controlled substance by the Idaho Controlled Substances Act, Chapter 22 (27), Title 37, Idaho Code, has no rational basis and is repugnant to the equal protection clause of the United States Constitution and the Constitution of the State of Idaho.

'(2) The magistrate erroneously bound said Patrick Edward O'Bryan over to the District Court because there was no evidence presented in the preliminary hearing of intent to deliver a controlled substance that would establish probable cause of guilt.

'(3) The title of the legislative act enacting Idaho Code 37-2732 is not in compliance with Section 16, Article 3 of the Idaho Constitution and is constitutionally void.

'(4) The State of Idaho does not have the authority under its general police power to prohibit the delivery, use or...