State v. Davenport

• Decision Date: 21 November 1973
• Docket Number: No. 5366,5366
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Freda L. DAVENPORT et al., Defendants, and John B. Radford, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 65

516 P.2d 65

55 Haw. 90

STATE of Hawaii, Plaintiff-Appellee, v. Freda L. DAVENPORT et al., Defendants, and John B. Radford, Defendant-Appellant.

No. 5366.

Supreme Court of Hawai'i.

Nov. 21, 1973.

Syllabus by the Court

1. A search warrant premised solely on representations in an affidavit by a police officer that he has received information from an unnamed informer that contraband is being secreted in a particular location is valid if the affidavit sets out the underlying circumstances on which the informer based his conclusions and the reasons why the informer should be considered credible and reliable.

2. It is a common sense and practical interpretation of the facts, not hypertechnical and legally precise analysis, that lies at the heart of probable cause, and information supplied by an informer which leads to arrests and prosecutions, although not necessarily convictions, is 'reliable' in the common sense meaning of that that word.

3. Present federal standards in the area of sufficiency of affidavits to support search warrants provide highly sensible and principled guidelines for determining acceptable police practices, and hence are adopted as establishing the parameters of state law on the subject as well.

4. Exigent circumstances justifying forced entry in searches for drugs exist when the facts show that the occupants of the suspected locale are award of the police presence and are taking steps which the police realistically fear may lead to destruction of the contraband.

5. A search warrant specifying the particular premises within which drugs are hidden is sufficiently detailed to satisfy the constitutional requirement that a warrant 'particulary describes the place to be searched.'

6. A search warrant describing 'marijuana' as the thing to be seized gives the officers executing it authority to search, in a reasonable manner, whatever spots within the described premises their professional experience indicates may be used as a cache, and the seizure of any evidence of crime in the course thereof is permissible.

7. Where it is clear that the prosecution did not base its case against the defendant on any activity he might have undertaken in the presence of a confidential informer, and where the prosecution offered to stipulate that the defendant had no part in illicit transactions observed previously by the informer, the possible significance of the informer's testimony to the defense on the issue of guilt or innocence was not great enough to require disclosure of the informer's identity.

David Bettencourt, Honolulu (Mattoch, Kemper & Brown, Honolulu, of counsel), for defendant-appellant.

Larry L. Zenker, Deputy Pros. Atty., (Barry Chung, Pros, Atty. City & County of Honolulu, Honolulu, of counsel), for plaintiff-appellee.

Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.

LEVINSON, Justice.

This case raises questions concerning the validity of a search warrant issued solely on the basis of an informer's tip, the manner in which that warrant was executed by the police, and whether the circumstances of the defendant's trial required the prosecution to disclose a confidential informer's identify in order to assist the defendant in establishing his innocence.

The defendant was convicted in circuit court of the possession of marijuana and cocaine, both in violation of HRS § 329-5 (as amended L.1969, Act 161, repealed and now superseded by the Hawaii Penal Code, L.1972, Act 9, and the Uniform Controlled Substances Act, L.1972, Act 10), and the possession of amphetamines, in violation of HRS §§ 328-82(3) & 328-86(c). Evidence introduced by the prosecution at trial included drugs of the foregoing description seized by the police in the course of a search of the defendant's bedroom. That search, part of a more extensive search of the entire house in which the defendant resided, was executed pursuant to a warrant issued by a district magistrate, ¹ and resulted in the arrest and conviction on drug charges of three individuals in addition to the defendant. Only the defendant, however, appealed. For reasons stated hereinafter, we affirm the defendant's conviction.

I. THE VALIDITY OF THE SEARCH AND SEIZURE

We start from the proposition that evidence obtained by means of an unconstitutional search and seizure ² is inadmissible in a criminal prosecution, and that a conviction obtained thereby must be reversed. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); State v. Pokini, 45 Haw. 295, 367 P.2d 499 (1961). The touchstone in determining whether a search pursuant to a warrant was constitutionally infirm from its inception is an analysis of the facts, usually in the form of an affidavit, presented to the issuing judge by the officials seeking the warrant. If those facts, viewed exclusively and in their totality, are substantial enough to engender the amorphous state of mind known as 'probable cause,' ³ then the warrant, and hence the search, are at least prima facie constitutional. See Forkosh, The Constitutional Right to Challenge the Content of Affidavits in Warrants Issued under the Fourth Amendment, 34 Ohio State L.J. 297 (1973).

Though the subjective mental state of probable cause is inherently incapable of precise and mathematical definition, we are not without guidelines in determining when, under particular circumstances, the constitutionally accepted minimums of probable cause have been established. Where, as in this case, a search warrant is premised solely on representations in an affidavit by a police officer that he has received information from an unnamed informer that contraband is being secreted in a particular location, that warrant is not rendered invalid by the fact alone that the information is hearsay. See, e. g., Jones v. United States, 362 U.S. 257, 269-271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). However, under the constitutionally mandated test of Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964), the affidavit must set out

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 . . . was 'credible' or his information 'reliable.'

(emphasis added) (citations omitted). In Aguilar, the affidavit indicated neither the source of the informer's conclusions nor the basis of the affiant's trust in the informer's credibility, and hence the Court held the search warrant inadequate.

Subsequent decisions refined this two-pronged test of Aguilar in the contexts of particular factual situations. Thus, in McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), the Court held that affirmations by a confidential informer to a police officer that he had personally observed the defendant selling drugs coupled with the fact that the informer had provided the officer with reliable information at least fifteen times in the past satisfied the Aguilar test and justified a warrantless arrest and incident search of the defendant. ⁴ Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), established that when an informer's tip is a necessary element of probable cause in a search warrant, its adequacy must turn on whether the tip alone passes the Aguilar test. Thus, the observation by the police in Spinelli of at best vaguely suspicious behavior by the defendant did not serve to remedy the fundamental deficiencies of the affidavit with respect to the informer's tip-it remained as conclusory as the affidavit in Aguilar both as to the basis of the informer's conclusions and the reasons for crediting them. The Court noted in dictum, however, that an allegation in the affidavit that the informer had personally observed the defendant's criminal behavior would have satisfied the 'underlying circumstances' prong of the Aguilar test. Id. at 416, 89 S.Ct. 584. Finally, United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), held that an affidavit setting forth the personal knowledge of an informer with respect to illegal activities upon which a warrant was based met the 'underlying circumstances' prong of the Aguilar test.

The facts of the present case, when perceived in the context of the foregoing cases and also the opinion of this court in State v. Texeira, 50 Haw. 138, 433 P.2d 593 (1967), present little novelty. The warrant to search the defendant's house rested entirely on the following assertions contained in an affidavit prepared by officer Sidney Hayakawa:

That your affiant, on December 7, 1971, at 10:00 p. m., Tuesday, received information from a reliable confidential informant, who related that David HUDDLESTON and Guy CONTEMPLO is (sic) selling Marihuana from within the residence located at 3274-A Lower Road; that within the past forty-eight (48) hours, the informant personally observed Marihuana being sold and used from the said premises and informant further states that Marihuana is presently being secreted within the said premises at 3274-A Lower Road;

That your affiant believes and knows that the said informer is reliable; that this belief and knowledge is based on affiant's past experience with the said informer that the affiant has received information from the said informer approximately twenty-one (21) times;

That the affiant personally verified the information given him by the said informer approximately eleven (11) times, and each time the information has proved to be reliable; that based on the information received from said informer in the past, and verified, approximately seven (7) arrests for Narcotic violations are still pending court action in the State Courts.

Under the first, or 'underlying circumstances,' prong of the Aguilar test, the affidavit clearly passes constitutional muster since it relates that the basis of the informer's conclusion...