State v. Davenport

• Decision Date: 14 May 1973
• Docket Number: No. 1639,1639
• Parties: STATE of Alaska, Petitioner, v. Tyrone DAVENPORT, Respondent.
• Court: Alaska Supreme Court

Page 78

510 P.2d 78

STATE of Alaska, Petitioner, v. Tyrone DAVENPORT, Respondent.

No. 1639.

Supreme Court of Alaska.

May 14, 1973.

John E. Havelock, Atty. Gen., Juneau, Seaborn J. Buckalew, Jr., Dist. Atty., W. H. Hawley and Charles M. Merriner, Asst. Dist. Attys., Anchorage, for petitioner.

Herbert D. Soll, Public Defender, Bruce A. Bookman, Asst. Public Defender, Anchorage, for respondent.

Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOOCHEVER, JJ.

OPINION

RABINOWITZ, Chief Justice.

Respondent Tyrone Davenport was indicted on November 1, 1971 for the crime of receiving and concealing stolen property. ¹ The indictment charged Davenport with the unlawful possession of six fur garments which were allegedly stolen from the Fur Traders, an Anchorage merchant. Prior to trial, Davenport filed a motion to suppress the several fur pieces which he claimed the state had illegally seized. The superior court granted his motion and the state has petitioned this court to review that decision.

The facts developed at the suppression hearing are as follows: On September 22, 1971, Investigator Robert Gray of the Anchorage Police Department obtained a warrant based upon his own affidavit to search the Davenport residence for 'eight or nine handguns' which were stolen from Howard's Gun Shop in Anchorage. Gray's affidavit related that on September 22, 1971, the Anchorage police arrested Davenport in connection with a shooting incident at the Davenport home; and that shortly following the arrest, the police seized two handguns. The serial number of one of the handguns matched the serial number of a gun reported stolen from Howard's Gun Shop. The affidavit further alleged that

. . . later in the afternoon of September 22, 1971 your affiant was approached by inmate, Matthew Harris, and it was related to your affiant that he, Matthew Harris, had been in the Tyrone Davenport residence at 512 E. 12th Avenue, Apt. #9, approximately on the 16th day of September, 1971 and while there saw eight or nine handguns, which Davenport stated came from Howard's Gun Shop.

From testimony brought out at the suppression hearing, it appears that Harris also informed Gray that while at the Davenport residence on September 22, he had seen a number of fur garments; and moreover, he had seen Davenport place them in the attic above the kitchen. Harris was unable to tell Gray how Davenport came to acquire the furs, but Gray suspected that the furs might be among those which had been taken in a recent burglary of Fur Traders. Gray did not seek a warrant to search the Davenport residence for the furs, apparently because an assistant district attorney informed Gray that he had insufficient probable cause to obtain the warrant.

Investigator Rice of the Anchorage police was assigned to execute the search warrant which was issued for 'eight or nine handguns, the property of Howard's Gun Shop'. Gray indicated to Rice that he might discover some furs in the course of the search for the handguns and that the furs probably belonged to Fur Traders.

Rice and two other officers went to Davenport's residence to execute the warrant. They knocked at the door, and receiving no answer, they admitted themselves. Once inside, they found Davenport's father sleeping in a bedroom. They woke him and informed him of the purpose of the intrusion. After a search of the first floor, the officers asked the elder Davenport to show them to the attic. One of the three, Officer Smith, climbed up. Once inside the attic, Smith noticed three or four boxes of .38 caliber ammunition and a recess in the roofing material. Smith crawled over to the recess and observed three bundles inside. He withdrew one of the packages, a brown shopping bag, looked in it, and discovered that it contained furs. Smith examined the other parcels and found furs in them as well. Rice had told Smith that the search might uncover stolen furs in addition to the handguns, and so Smith handed the parcels containing the furs to his comrades below.

The furs had no labels and appeared to Rice to be both brand new and expensive. Recalling the Fur Traders' burglary, Rice concluded that the furs were probably stolen and seized them. On the return of the warrant, Rice listed seven fur garments. No handguns were seized or discovered in the course of the search of the Davenport residence.

At the suppression hearing Davenport argued that the furs were illegally seized since (a) they were not among the items listed on the warrant and were not reasonably related to the purpose of the search as required by Bell v. State, 482 P.2d 854 (Alaska 1971); (b) that the affidavit for the search warrant was insufficient and defective; and (c) that even assuming Bell permits seizure of items not enumerated in the warrant and unrelated to the purpose of the warrant, there was insufficient probable cause upon which to base the seizure of the furs. The superior court concluded that since the furs were not described in the warrant, nor were they related to the offense upon which the warrant was based, under Bell v. State, ² the seizure of the furs was illegal. The superior court did, however, find that the affidavit in support of the warrant was neither insufficient nor defective, and that the warrant was therefore valid.

I

Davenport challenges the superior court's finding that the search warrant for the handguns was valid. He claims that the affidavit was defective in that (a) it contained misstatements of fact and that (b) the statements in the affidavit were insufficient to establish probable cause to search.

In his affidavit, Investigator Gray claimed that

. . . Tyrone Davenport was observed by a neighbor, Andrew Nelson, 512 E. 12th, Apt. 3, entering a storage area in the apartment complex at 512 E. 12th Avenue, remain a moment and then hurriedly left the storage area and entered his apartment.

The affidavit also asserts that the informant Matthew Harris 'approached' Gray and revealed that he had seen the handguns at the Davenport residence. Davenport claims that these statements are false. Apparently, Gray did not know that the figure he described to the police was Davenport. Moreover, it seems that Gray contacted Harris, contrary to the assertion in the affidavit that Harris approached Gray. Davenport argues that these misstatements in the affidavit vitiate the validity of the warrant.

There is much disarray in the law on the question of whether, and to what extent, the validity of statements in an affidavit may be challenged. ³ A number of courts have indicated that a defendant may attack a search warrant on the grounds that the affidavit presents material misstatements of fact. ⁴

The state and federal constitutional requirement that warrants issue only upon a showing of probable cause, ⁵ in our opinion contains the implied mandate that the factual representations in the affidavit be truthful. We believe that since search warrants issue ex parte, he courts must be willing to investigate the truthfulness of the material allegations of the underlying affidavit in order to protect against the issuance of search warrants based on conjured assertions of probable cause. Thus, we believe that challenges to the search warrant and affidavit may be properly entertained during the suppression hearing.

However, in order for a misstatement of fact in an affidavit to fatally impair the validity of a search warrant, the misstatement must be material to the showing of probable cause upon which the warrant is based. ⁶ In the case before us, it does not appear that the district judge was influenced by the misstatements in the affidavit to issue a search warrant which he would otherwise have denied. Even assuming the falsity of Gray's statements, we cannot conclude that they were material to a finding of probable cause to search. ⁷

Davenport also contends that the affidavit was insufficient because the affiant Gray relied on hearsay, and the affidavit fails to establish the reliability of the informant. ⁸ Specifically, Davenport contends that the reliability of the informant Harris was not sufficiently established by the affidavit. As the Supreme Court noted in Aguilar v. State of Texas, 378 U.S. 108 at 114, 84 S.Ct. 1509 at 1514, 12 L.Ed.2d 723 (1964):

An affidavit may be based on hearsay and need not reflect the direct personal observations of the affiant . . . (but) the magistrate must be informed of some of the underlying circumstances from which the officer (the affiant) concluded that the informant . . . was 'credible' or his information reliable. ⁹

We believe that in the instant case, there were substantial bases for crediting the informant's story. The affidavit avers that Harris' information was acquired by his personal and recent corroborated in the affidavit his story was corroborated in the affidavit by the fact that one of the handguns discovered in connection with Davenport's arrest possessed a serial number which matched the serial number of a handgun taken from Howard's Gun Shop. This corroboration significantly reduced the possibility that Harris' story was nothing more than a 'reckless or prevaricating tale.' Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697, 708 (1960).

We do not agree with Davenport's claim that the affidavit failed to show that the informant was credible or reliable, and that consequently, under Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the statement of the informant could not support a showing of probable cause. Unlike the present case, the affidavit in Spinelli relied on observations of an unidentified informant, and did not explain how the informant came by his information. See, United States v. Harris, 403 U.S. 573, 579, 91 S.Ct. 2075, 29 L.Ed.2d 723, 731 (1971). An affidavit may rely on the observations of a third party, 'so long as a substantial basis for crediting the hearsay is presented.' Jones v. United States, 362 U.S. 257,...