State v. Gage
Decision Date | 04 March 1981 |
Docket Number | No. 13139,13139 |
Citation | 302 N.W.2d 793 |
Parties | STATE of South Dakota, Plaintiff and Appellee, v. Kenneth M. GAGE, Defendant and Appellant. |
Court | South Dakota Supreme Court |
Clair B. Ledbetter, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.
Catherine G. Ortner of Ortner & Ortner, Hot Springs, for defendant and appellant.
A Fall River County jury found appellant guilty of first-degree robbery in violation of SDCL 22-30-1 and 22-30-7. The trial court sentenced him to serve ten years at the South Dakota State Penitentiary in Sioux Falls, South Dakota. Appellant appealed from that final judgment and sentence. We reverse and remand for a new trial.
Appellant had lived in Edgemont, South Dakota. Around 6:00 p. m. on February 1, 1980, he moved out of his Edgemont apartment. He loaded his belongings into his car and departed, stopping at a couple of places on his way out of town to say good-bye to friends.
At about 8:30 p. m. on that same evening, a man entered the Edgemont Mini Market. Patricia Bennett (Bennett), the cashier, was the only employee on duty, and no one else was in the store at that time. After taking money out of the till while pointing a gun at Bennett, the man fled from the store.
On February 4, 1980, a warrant was issued for appellant's arrest for committing first-degree robbery. The arrest warrant was issued on the basis of Officer Ronald Berens' affidavit, * which incorporated his report of the robbery into it. The portion of the report used as the basis for the issuance of the arrest warrant read as follows:
I talked to a lot of people and one girl said that she new (sic) who robbed the Mini Market but didn't want her name in it. I told her that it wouldn't be. She said that Ken Gage said he was going to rob the Mini Market and go to Rapid City and then to Missouri.
When appellant returned approximately two weeks later from where he had been living in Nebraska, the police arrested him for armed robbery.
Various pretrial motions were made and hearings held. The State refused to identify the informant who was apparently going to testify that appellant had told her he was going to rob the Edgemont Mini Market. Two weeks before the trial, however, the trial court said that, absent disclosure, the State would not be allowed to present the testimony to the jury. The State, therefore, revealed the name of the informant.
Five days before the trial, defense counsel obtained the address and phone number of the previously undisclosed informant. Consequently, defense counsel was unable to interview the informant until the day before the trial. At that time the informant denied having said that appellant made the incriminating statement to her. In fact, she denied having ever made any such report to the police.
On the following day, just prior to commencement of the trial, appellant's lawyer made several motions, one of which was to suppress the results of the pretrial lineup. Defense counsel attempted to have the lineup identification suppressed as the fruits of an improper arrest, in that the affidavit upon which the arrest warrant was based lacked probable cause since it contained false information. The false information related to the informant's statement that appellant had told her he intended to commit the robbery. This was the first time that the discrepancy was brought to the trial court's attention.
The State objected to the motion, alleging it had not been timely made, and then stated, "Nothing in that statement says that this (informant) had had the conversation with (appellant)." The trial court denied the motion stating, "As to probable cause, the proceeding, the record prior to this hearing, and trial are my support for that decision." The trial court made it clear that the motion was not denied because of its untimeliness. The exact basis was "(t)he preliminary hearing, the other motions that we have had and the testimony that has been established."
Appellant was tried before a jury, which found him guilty of first-degree robbery. After the trial court sentenced appellant to serve ten years at the state penitentiary, appellant appealed from the whole of the judgment of conviction and the sentence.
Appellant contends that the trial court erred in denying the motion to suppress the results of the pretrial lineup. In determining whether the lineup should have been suppressed, this court must first decided the basic question whether there was in fact sufficient probable cause upon which to base the warrant for appellant's arrest. The United States Supreme Court case of Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), is pertinent.
The language of the Fourth Amendment, that "... no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing ... the persons or things to be seized," of course applies to arrest as well as search warrants.
Id. at 485-486, 78 S.Ct. at 1250, 2 L.Ed.2d at 1509.
This court has not yet had occasion to pass upon the question whether the same requirements for a search warrant are applicable to an arrest warrant. We do so now and adopt Giordenello, which states that they are applicable.
With respect to the sufficiency of affidavits in support of search warrants, this court has long recognized the Aguilar-Spinelli two-pronged test for demonstrating credibility and reliability on the part of an informant.
The Aguilar test goes to the reliability of the informant's information. As we said in State v. Kietzke, 85 S.D. 502, 510, 186 N.W.2d 551, 556 (1971): Spinelli goes to the reliability of the informant himself. State v. Kietzke, supra.
The affidavit-report in this instance was utterly devoid of any showing of the reliability of the informant herself, particularly as to the source of her knowledge. The State's argument at the suppression hearing that the report did not say what it appeared on its face to say, only emphasizes the need for the inclusion of such information in the affidavit. Rather than being firsthand information of an admission against interests as it appeared to be on the face of this affidavit-report, it was at best hearsay on hearsay. The State was not even able to introduce the testimony in support of its case-in-chief.
We are cognizant of the fact that "(t)he Aguilar-Spinelli requirements have been held not to apply to information supplied by identified bystanders or victim-eyewitnesses to a crime(,)" State v. Haron, 88 S.D. 397, 401, 220 N.W.2d 829, 831-832 (1974) (emphasis in original), or even to unidentified informants who give information that is corroborated before the issuance of the warrant. State v. Gerber, 90 S.D. 432, 241 N.W.2d 720 (1976). None of those circumstances, however, existed here.
Finally, at the Franks-type hearing just prior to trial, while the trial court did not state on the record that it was excising the false material in considering the affidavit, it indicated that it was doing so when it stated it was denying the motion because of "(t)he preliminary hearing, the other motions that we have had and the testimony that has been established." In State v. Hibbard, 273 N.W.2d 172 (S.D.1978), this court adopted the Franks v. Delaware test, wherein the United States Supreme Court stated:
In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.
Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667, 672 (1978).
This court has also previously held: "In reviewing the determination of probable cause by the magistrate, only the evidence presented in support of the search warrant must be considered." State v. Smith, 281 N.W.2d 430, 433 (S.D.1979); State v. Gerber, supra.
"(T)he existence of probable cause for the search warrant must rise or fall on the affidavit itself which was the only evidence presented to the magistrate for his determination of probable cause." Smith, supra. In the instant case, once the informant's statement is stricken from the affidavit-report, and we hold that it should have been, there is virtually nothing left to implicate appellant in the robbery.
The trial court in this case had to rely on after-acquired information, which it may not do, to establish the probable cause for the arrest warrant, since no such probable cause existed in either the police report or the affidavit.
Not only should the pretrial lineup in this case have been suppressed, but the arrest itself was unlawful and cannot be justified by the fruits of an incidental search and seizure or by other after-acquired information. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Klingler v. United States, 409 F.2d 299 (8th Cir. 1969); Pigg v. United States, 337 F.2d 302 (8th Cir. 1964).
We point out, however, that an accused may...
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