State v. Castro, 1

• Decision Date: 26 October 1970
• Docket Number: No. 1,CA-CR,1
• Citation: 475 P.2d 725,13 Ariz.App. 240
• Parties: The STATE of Arizona, Appellee, v. David Ross CASTRO, Appellant. 273.
• Court: Arizona Court of Appeals

Page 725

475 P.2d 725

13 Ariz.App. 240

The STATE of Arizona, Appellee, v. David Ross CASTRO, Appellant.

No. 1 CA-CR 273.

Court of Appeals of Arizona, Division 1.

Oct. 26, 1970.

Rehearing Denied Dec. 3, 1970.

Review Denied Jan. 19, 1971.

Knez & Glatz, Tucson, Gerald F. Sullivan, Phoenix, by Richard D. Crites, Tucson, for appellant.

Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.

HOWARD, Chief Judge.

This is an appeal by defendant, David Ross Castro, from a conviction of possession of marijuana, for sale in violation of A.R.S. § 36--1002.06. The jury returned a verdict of guilty to the charge of September 10, 1969, in the Superior Court of Maricopa County, Honorable William H. Gooding presiding. Defendant received a three year suspended sentence and was placed on probation for three years.

Defendant appeals from the judgment of guilty, the crime of possession for sale, and the denial of a motion for a new trial.

The facts of this case are that on November 17, 1968, Jesse D. Stokes, a City of Phoenix police officer, appeared before a Maricopa County Justice of the Peace and applied for a search warrant to search defendant's apartment. In pursuit of this application Officer Stokes filed an affidavit, under oath, that a reliable, past proven informant had given him some information. He claimed this information had stated that the informant observed defendant in possession of marijuana. The informant allegedly stated he had observed defendant in possession of marijuana on his person, in his automobile, a blue 1960 Valiant, and in his residence at 2509 Dayton, Phoenix, which residence appeared to be a green and white two-story house.

The search warrant was issued on November 17, 1968. On the evening of November 17th Officer Stokes and several other police officers went to the residence of defendant. Defendant allowed the officers to enter whereupon they discovered marijuana and paraphernalia allegedly used in the preparation of marijuana for sale.

Defendant was subsequently charged and convicted of the violation of A.R.S. § 36--1002.06 which prohibits the possession of marijuana for sale. After the trial had begun a hearing was had on defendant's motion to suppress the property seized at his residence. The motion was denied.

Defendant asserts that he was denied due process of law as guaranteed under the Arizona and United States Constitutions by the failure of the trial judge to require the disclosure of the identity of the alleged informer.

The basis of defendant's contention is twofold: (1) He feels he has challenged the very existence of an informer and (2) if there is an informer he feels he needs his presence in court as a material witness.

Defendant produced affidavits from the people he had had contact with during the time in which the informant had allegedly observed the marijuana. These affidavits were statements that these people had not informed on defendant.

The law in the area of searches and seizures is clear. An affidavit for a search warrant can be based on information furnished by an informant. State v. Watling, 104 Ariz. 354, 453 P.2d 500 (1969). In order to evaluate the constitutionality of the issuance of a search warrant the magistrate must be presented with: (1) The facts showing the informant is reliable and (2) the underlying circumstances on which the substance of the 'tip' is made. State v. Ramos, 11 Ariz.App. 196, 463 P.2d 91 (1970); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

Officer Stokes approached the Justice of the Peace and stated in a sworn affidavit that an informant had given the affiant information. He also stated that this informant had furnished information in the past which had led to twelve arrests. Officer Stokes then specifically described the places where the marijuana had been seen and that the purportedly reliable informant had seen it. This information supplied to the Justice of the Peace satisfies the requirements set out by the U.S. Supreme Court in Aguilar, supra, and Spinelli, supra.

Defendant wishes to subpoena the informant as a material witness. Defendant cites the cases of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) and the recent California Supreme Court case of Price v. Superior Court, 1 Cal.3d 836, 83 Cal.Rptr. 369, 463 P.2d 721 (1970) to support his contention that he has a right to the disclosure of the informer.

It is proper to protect the name of a confidential reliable informant. State v. James, 10 Ariz.App. 394, 459 P.2d 121 (1969); McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). Where, however, the disclosure of an informant's identity is relevant and helpful to the defense of an accused or is essential to a fair determination of a cause, the privilege must give way. State v. Godwin, 106 Ariz. 252, 475 P.2d 236 (filed October 15, 1970); Rivera v. Superior Court, 6 Ariz.App. 117, 430 P.2d 696 (1967); Roviaro v. United States, supra; State v. James, supra. The question then revolves around what the defendant has to prove in order to compel disclosure. The California court in Price v. Superior Court, supra, recognized the very nature of the problem confronting the defendant makes it impossible for him to state Facts which would show the materiality of the informant's testimony since the defendant does not know the identity of the informant. He cannot, therefore, possibly state factually what the informant will say if he is required to testify. The defendant then need not prove that the informer would give testimony favorable to the defense in order to compel...