State v. Daniels

• Decision Date: 01 September 1972
• Docket Number: No. 43097,43097
• Citation: 200 N.W.2d 403,294 Minn. 323
• Parties: STATE of Minnesota, Respondent, v. Gregory Lee DANIELS, Appellant.
• Court: Minnesota Supreme Court

Page 403

200 N.W.2d 403

294 Minn. 323

STATE of Minnesota, Respondent, v. Gregory Lee DANIELS, Appellant.

No. 43097.

Supreme Court of Minnesota.

Sept. 1, 1972.

Syllabus by the Court

1. A search warrant issued by a magistrate was not constitutionally impermissible although based in part upon hearsay information from an unidentified source, where the affidavit reciting this information contained sufficient facts to enable the magistrate independently to determine (a) that the informant obtained his knowledge in a reliable manner, and (b) that the informant was telling the truth.

2. A search warrant authorizing the police to execute the warrant without first announcing their presence or purpose was not constitutionally impermissible where the affidavit in support of the application set forth clearly exigent circumstances justifying the belief that the evidence sought might well be destroyed if the police presence were known.

Thomson, Wylde & Nordby, St. Paul, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, George M. Scott, County Atty., Henry W. McCarr, Jr., and David G. Roston, Asst. County Attys., Minneapolis, for respondent.

Heard before KNUTSON, C.J., and ROGOSHESKE, PETERSON, and KELLY, JJ.

PETERSON, Justice.

Defendant, appealing from a judgment of conviction of unlawful possession of narcotic drugs, contests the admissibility of the convictive tangible evidence and admissions obtained by police officers on the ground that the evidence was the product of a constitutionally impermissible house search. ¹ Defendant contends, more specifically, (a) that the search warrant under which the officers acted was supported by an affidavit, containing information previously supplied by an unidentified informer, which failed to state sufficient facts and circumstances enabling the magistrate to make an independent judgment that the police had probable cause to search the described premises, and (b) that the supporting affidavit did not, in any event, contain a sufficient showing to justify a provision in the search warrant authorizing the police, as they did, 'to enter (the) premises unannounced.'

On July 29, 1970, Officer Wayne Brademan of the Minneapolis Police Department applied to the municipal court for a warrant to search, either day or night, defendant's residence at 929 Logan Avenue North for 'Narcotic drugs including: Heroin, cocaine, marijuana, hashish and narcotic paraphernalia and pieces of identification to prove constructive possession of above contraband.' In an affidavit accompanying the application, Officer Brademan stated:

'* * * For approximately the past two months I have received information from an informant whose information has recently resulted in narcotic arrests and convictions that a Gregory Daniels who resides at 929 Logan N, down has been selling marijuana, hashish and heroin. My informant further states that he has seen Daniels sell drugs, namely: heroin and further that he has seen Daniels with heroin on his person. The informant has seen heroin on the premises of 929 Logan N, (down) within the past 48 hours. In a check with the phone company directory, it lists a Gregory Daniels at 929 Logan N. My informant further states that Daniels is very much aware of the police. The affiant believes that because the contraband sought is easily disposed of, that an unannounced entry is necessary. * * *

'* * * (A) night time search is necessary to prevent the loss, destruction or removal of the objects of the search, in that the affiant is unaware of when Daniels will be home and it could possibly run into the nightime.'

After obtaining the warrant, police officers went to defendant's residence shortly after noon on the same day and, without knocking and announcing their presence or purpose, broke in the door by using a sledge hammer. Defendant and his girl friend, who appeared to have been in bed, were present in the house. After advising them that they were going to search the premises pursuant to the search warrant, the police commenced the search. The searching officers found a bottle containing 27 capsules of a black and white powder together with other narcotic drugs, drug paraphernalia, and firearms. ² Defendant, who was then arrested and advised of his rights, said of the 27 capsules, 'This is heroin. I am selling it for a guy.'

1. Defendant's first contention--that the affidavit in support of the search warrant, based upon an unidentified informer's tip, did not contain sufficient underlying facts and circumstances to enable the magistrate to judge for himself whether the police had probable cause to search the described premises--has no merit. The contention is based upon a mistaken interpretation of the three decisions of the United States Supreme Court articulating, in divided opinions, the information that such an affidavit must contain in support of probable cause: Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

In Aguilar the United States Supreme Court held insufficient an affidavit which, in relevant part, recited simply that the police officers making it had 'reliable information from a credible person' that Aguilar was keeping narcotics at his house. The court stated (378 U.S. 114, 84 S.Ct. 1514, 12 L.Ed.2d 729):

'Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant (citation omitted), the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed (citation omitted), was 'credible' or his information 'reliable.' Otherwise, 'the inferences from the facts which lead to the complaint' will be drawn not 'by a neutral and detached magistrate,' as the Constitution requires, but instead, by a police officer 'engaged in the often competitive enterprise of ferreting out crime,' (citations omitted), or, as in this case, by an unidentified informant.'

In Spinelli, four members of the court, speaking through Mr. Justice Harlan, 'further explicated' the principles stated in Aguilar. 393 U.S. 412, 89 S.Ct. 587, 21 L.Ed.2d 641. The affidavit in Spinelli contained an informant's tip deemed clearly inadequate under Aguilar, but contained other information obtained independently by the police about Spinelli's reputation and allegedly suspicious movements which arguably corroborated the tip. Rejecting the argument that the totality of information in the affidavit established probable cause, the plurality opinion suggested that the sufficiency of other information to corroborate an informer's tip, otherwise inadequate under the Aguilar test, should be subjected to this test (393 U.S. 415, 89 S.Ct. 588, 21 L.Ed.2d 643):

'The informer's report must first be measured against Aguilar's standards so that its probative value can be assessed. If the tip is found inadequate under Aguilar, the other allegations which corroborate the information contained in the hearsay report should then be considered. At this stage as well, however, the standards enunciated in Aguilar must inform the magistrate's decision. He must ask: Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar's test without independent corroboration?'

Mr. Justice Harlan stated that the information concerning the informant and his tip was insufficient to justify a search warrant because (a) the police officer making the affidavit offered the magistrate no reason in support of his conclusion that the informer was reliable and credible, and (b) the officer did not state how the informer obtained his information in sufficient detail so that the magistrate could determine that the informer relied on something more than a casual underworld rumor. So tested, the police corroboration of limited aspects of the tip neither enhanced the informer's reliability nor independently suggested the existence of criminal conduct.

In Harris, the court more recently addressed itself to the question of what information concerning an informer's tip is sufficient for the magistrate to conclude that the informer was reliable and credible. The affidavit there recited that affiant had interviewed the informant and felt that he was a 'prudent person.' Mr. Chief Justice Burger, in a three-part opinion, no part of which commanded a majority, stated that there was substantial basis for the magistrate's believing that the informer was truthful because (a) the accusation by the informant was a declaration against interest and (b) the affiant corroborated the informant's information by stating that he had personal knowledge of Harris' reputation and, further, that he had received information 'from all types of persons as to his activities.' 403 U.S. 575, 91 S.Ct. 2078, 29 L.Ed.2d 729. The search warrant was held valid and the conviction was affirmed.

Harris may not, in our view, be interpreted as making it more difficult for police to obtain a search warrant on the basis of information stated in an affidavit in reliance on an unidentified informer's tip. If anything, the contrary is true, and Mr. Chief Justice Burger's opinion arguably signaled an abandonment of the Aguilar analysis. See, Note, 85 Harv.L.Rev. 53. But this we need not decide for we conclude that the affidavit in the instant case clearly meets the two-pronged Aguilar test (and, a fortiori, the Harris test):

a. The affidavit states that the informant has seen defendant sell drugs, has seen heroin on defendant's person, and has seen heroin at defendant's residence within the past 48 hours. There seems...