State v. Fowler

• Citation: 106 Idaho 3,674 P.2d 432
• Decision Date: 05 December 1983
• Docket Number: No. 14388,14388
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Kyle V. FOWLER and Ronald David Mayne, Defendants-Appellants.
• Court: Court of Appeals of Idaho

Page 432

674 P.2d 432

106 Idaho 3

STATE of Idaho, Plaintiff-Respondent, v. Kyle V. FOWLER and Ronald David Mayne, Defendants-Appellants.

No. 14388.

Court of Appeals of Idaho.

Dec. 5, 1983.

Gaylen L. Box, Pocatello, for defendants-appellants.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Stephen J. Gledhill, Deputy Atty. Gen., Boise, for plaintiff-respondent.

SWANSTROM, Judge.

This is an appeal by certification from a district court order denying a motion to suppress evidence seized under a search warrant and a motion to dismiss criminal charges against the appellants. The issues relating to the suppression motion are: (A) whether the affidavit for the search warrant established probable cause; (B) whether the affidavit contained justification for nighttime execution of the warrant; and (C) whether the search and seizure exceeded the scope of the warrant. The issues relating to the dismissal motion are: (A) whether there was excessive delay in bringing appellants before a magistrate for their initial appearance; and (B) whether the state should have been allowed to refile charges against appellants after a magistrate had once dismissed them. We affirm the district court order insofar as it denies the motion to dismiss the charges. We vacate that part of the order relating to the suppression motion and instruct the district court to make further findings on remand.

I. THE SEARCH WARRANT

On the evening of Thursday, April 3, 1980, T.W. Smart, an investigator of the Idaho Bureau of Narcotics, applied to a magistrate, Honorable Robert W. Bennett, for a search warrant. Smart desired to search the home of Kyle Fowler and his roommate, Ronald Mayne, whom he suspected of trafficking in narcotics. In support of his request for a search warrant, he swore to the following affidavit:

T.W. SMART, being first duly sworn on oath, deposes and says:

That he is a Senior Special Investigator for the Idaho Bureau of Narcotics and that he has been employed by the Idaho Bureau of Narcotics for the past three and one-half years;

That over the past two weeks, your affiant has received information that the occupants at 311 East Chubbuck Rd., in Chubbuck, Bannock County, Idaho, have been suspected of trafficking in narcotics by your affiant and Officers of the Chubbuck Police Department.

On March 31, 1980, your affiant received information that a Chubbuck Police Officer, Officer Carl Richens, had observed on that morning, what appeared to be, based on their mannerisms, persons smoking a marijuana cigarette. Also, at that time, he observed one of the individuals appear to be chopping a vegetable substance and scraping it into a plastic bag. He observed approximately twenty of these bags filled and stacked on the table.

On April 3, 1980, surveillance was established at the residence at 311 E. Chubbuck Rd., in Chubbuck, Bannock County, Idaho, at approximately 6:30 P.M. by various law enforcement officers of Bannock County, Idaho. Various vehicle registrations were obtained on vehicles observed at the residence. Several of these vehicles were observed to arrive, staying a brief period of time and then leave the area. Three of the vehicles observed were registered to individuals purported to be trafficking in narcotics. Also during this time while the residence was under observation, Sgt. Brad Scott of the Bannock County Sheriff's Office observed one of the individuals who arrived at the residence, walk up to the door and appear to make payment to the individual who answered the door.

That your affiant believes Officer Richens and Officer Scott to be reliable, as they are local law enforcement officers, whom he knows personally.

That based on the above information, affiant makes this Affidavit for the purpose of obtaining a search warrant of the residence located at 311 East Chubbuck Rd., in Chubbuck, Bannock County, Idaho, for the purpose of searching for controlled substances, and/or contraband, which affiant believes may be unlawfully possessed at said premises, and in order to search for rent receipts, envelopes, keys, utility receipts, etc. or other evidence which tends to establish ownership or control of said premises.

That time is of the essence in this matter and therefore, affiant prays that this warrant be issued for a nighttime search to prevent the controlled substances from being consumed, destroyed or sold, or otherwise disposed of.

Magistrate Bennett issued a search warrant which authorized nighttime execution and commanded seizure of "controlled substances." Smart and other law enforcement officers executed the warrant at 11:25 that same night and seized numerous items, including suspected drugs, cash and personal property. Fowler and Mayne were placed under arrest and taken to the Bannock County Jail. They were subsequently charged with possession of marijuana with intent to deliver, I.C. § 37-2732(a)(1)(B), and possession of lysergic acid diethylamide (LSD) with intent to deliver, I.C. § 37-2732(a)(1)(B).

Fowler and Mayne filed a motion to suppress or exclude evidence. The motion was heard by a second magistrate, Honorable William H. Woodland. The motion was granted because Magistrate Woodland concluded that portions of the affidavit did not satisfy the then-existing Aguilar-Spinelli rule. 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). At the preliminary hearing on May 8, the state presented no further evidence to the court for the determination of probable cause and the magistrate held that the remainder of the affidavit was insufficient by itself to show probable cause. Beyond this, he held that no reasonable cause was shown why the search warrant should be executed at night. The case was dismissed without prejudice.

The state later refiled the same charges against Fowler and Mayne. They filed a new motion to suppress. A hearing was conducted before a third magistrate, Honorable L.R. Schou, and this time the motion was denied. Magistrate Schou held that he did not have the authority to review the determination of probable cause made by the magistrate who had signed the search warrant. Fowler and Mayne were bound over to district court.

Still another motion to suppress was filed, this time in the district court. The district court found that the affidavit demonstrated probable cause for issuance of a search warrant and the suppression motion was denied. Later Fowler and Mayne moved the district court to certify the denial of their motion for immediate appeal to the Idaho Supreme Court. The district court granted the motion and the Supreme Court permitted the appeal by certification. The case was assigned to this court.

A. PROBABLE CAUSE FOR WARRANT

Fowler and Mayne first contend that the search warrant was issued without probable cause in violation of the fourth amendment of the United States Constitution and article I, § 17 of the Idaho Constitution. In evaluating this contention, we note that the validity of a search warrant should not be tested in a hypertechnical manner. State v. Gomez, 101 Idaho 802, 623 P.2d 110 (1980), cert. denied, 454 U.S. 963, 102 S.Ct. 503, 70 L.Ed.2d 378 (1981). The United States Supreme Court has said:

that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause ...; that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial ...; that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense ...; and that their determination of probable cause should be paid great deference by reviewing courts.... [Citations omitted.]

Spinelli v. United States, 393 U.S. at 419, 89 S.Ct. at 590-91. In addition, "[t]he quantum of information which constitutes probable cause ... must be measured by the facts of the particular case." Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 413, 9 L.Ed.2d 441 (1963).

The affidavit for probable cause must be evaluated as a whole to determine whether it was sufficient to establish probable cause for the issuance of a search warrant. Furthermore, "affidavits for search warrants ... must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion." United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). "A magistrate's determination of probable cause should be accorded great deference by the appellate court.... Similarly, such affidavits should be tested by standards less rigorous than those governing the admissibility of evidence at trial." State v. Gomez, 101 Idaho at 805, 623 P.2d at 113.

Fowler and Mayne claim that the affidavit for probable cause was insufficient under the two-pronged test of Aguilar-Spinelli. To satisfy this test, an affidavit based at least partially on hearsay must demonstrate the reliability of the source of the information and present a sufficient factual basis for that information. Spinelli v. United States, supra; Aguilar v. Texas, supra. RINGEL, SEARCHES & SEIZURES, ARRESTS AND CONFESSIONS § 4.3(a) (1983) (hereinafter referred to as Ringel, Searches & Seizures). After the present case was argued, however, the United States Supreme Court decided Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). There the Court held:

we conclude that it is wiser to abandon the "two-pronged test" established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations. [Citations omitted.] The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons...