State v. Hennon, No. 66518
| Court | United States State Supreme Court of Iowa |
| Writing for the Court | McCORMICK |
| Citation | 314 N.W.2d 405 |
| Docket Number | No. 66518 |
| Decision Date | 20 January 1982 |
| Parties | STATE of Iowa, Appellee, v. Perry P. HENNON, Appellant. |
Page 405
v.
Perry P. HENNON, Appellant.
Page 406
William L. Kutmus, P. C., Des Moines, for appellant.
Thomas J. Miller, Atty. Gen., Richard L. Cleland, Asst. Atty. Gen., and John Criswell, Warren County Atty., for appellee.
Considered by LeGRAND, P. J., and McCORMICK, ALLBEE, McGIVERIN and LARSON, JJ.
McCORMICK, Justice.
Defendant Perry P. Hennon appeals from his conviction and sentence for possession of a controlled substance with intent to deliver in violation of section 204.401(1)(b), The Code. The sole question is whether the trial court erred in overruling his motion to suppress 144 pounds of marijuana seized from his barn pursuant to a search warrant. He attacks the failure of the warrant to show the date of an informant's observations and the showing of the informant's reliability. We find the warrant was valid and therefore affirm the trial court.
I. The date of the observations. Des Moines police officer Michael Shay obtained the warrant from Magistrate John P. Crouch on October 16, 1980. The officer's affidavit contained this statement:
Confidential informant told affiant this date that she/he saw approximately a large quantity of marijuana ... in the barn (white) which belongs to the residence at the Southwest corner of the intersection R63 & S.W. 18th Ave., White Oak Township, Warren County, Iowa. The residence home is white with black trim single family dwelling with attached garage. Affiant told by confidential informant this date that the large quantity of marijuana and paraphernalia is in the barn only.
This is the only statement in the affidavit which recites the information received from the informant. Defendant contends the affidavit is defective because it does not disclose the date of the informant's observations.
The issue is whether the affidavit established probable cause for believing that a controlled substance was in the barn on the date the warrant was issued. See State v. Post, 286 N.W.2d 195, 199 (Iowa 1980) ("The facts must establish probable cause that the ... evidence is presently being ... concealed at the place to be searched and cannot merely establish that there was probable cause at some time in the past."). Time is ordinarily not conclusive, "and the staleness issue is resolved by consideration of all the factors present in the particular situation." State v. Paterno, 309 N.W.2d 420, 423 (Iowa 1981). For example, a large quantity of material is not as likely to disappear over time as a small quantity. Post, 286 N.W.2d at 201.
The problem here, however, concerns whether the affidavit contains any reference point for the magistrate to determine the time of the informant's observations. It is a problem of identifying the date and not merely of measuring the passage of time.
If the timeliness of the informant's observations cannot be ascertained from the affidavit, probable cause for the search has not been shown. See Thomas v. State, 353 So.2d 54 (Ala.Cr.App.1977); People v. Padilla, 182 Colo. 101, 511 P.2d 480 (1973); Pierson v. State, 338 A.2d 571 (Del.Sup.1975); Bachelor v. State, 143 Ga.App. 442, 238 S.E.2d 579 (1977); Bruce v. Commonwealth, 418 S.W.2d 645 (Ky.1967), later app. 441 S.W.2d 435 (Ky.1969); State ex rel. Townsend v. District Court of Fourth Judicial District, 168 Mont. 357, 543 P.2d 193 (1975); Warthen v. State, 557 P.2d 466 (Okl.Cr.1976); Commonwealth v. Maldonado, 259 Pa.Super. 548, 393 A.2d 962 (1978); Bentley v. State, 552 S.W.2d 778 (Tenn.Cr.App.1977).
Page 407
The failure of an affidavit to specify the date of an informant's observations is not always fatal to the warrant, however. Other recitals in the affidavit may show the information is timely. One factor which has sometimes influenced courts to find timely probable cause is the use of the present tense in affidavits. See, e.g., Guzewicz v. Slayton, 366 F.Supp. 1402 (E.D.Va.1973); Borras v. State, 229 So.2d 244 (Fla.1969) cert. denied 400 U.S. 808, 91 S.Ct....
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State v. Bishop, No. 85-94
...2335 n. 13, 76 L.Ed.2d at 552 n. 13. Because warrants are preferred, we resolve all doubts in favor of their validity. State v. Hennon, 314 N.W.2d 405, 407 (Iowa 1982); see also Upton, 466 U.S. at 733-34, 104 S.Ct. at 2088-89, 80 L.Ed.2d at 727-28. We do not make our own independent determi......
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State v. Randle, No. 95-1058
...circumstances of each case. Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627, 642 (1976); State v. Hennon, 314 N.W.2d 405, 406 (Iowa 1982). When there is an "isolated violation," "probable cause quickly dwindles with the passage of time." State v. Post, 286 N.W.2......
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State v. Gogg, No. 96-387
...probable cause exists. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983); accord State v. Hennon, 314 N.W.2d 405, 407 (Iowa 1982). In doing so, the judge may rely on "reasonable, common sense inferences" from the information presented. See Green, 540 N.W......
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State v. Harris, No. 4-010 / 12-2139
...of persons supplying hearsay information," probable cause exists. Illinois v. Gates, 462 U.S. 213, 238 (1983); accord State v. Hennon, 314 N.W.2d 405, 407 (Iowa 1982). In doing so, the judge may rely on "reasonable, common sense inferences" from the information presented. See State v. Green......
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State v. Bishop, No. 85-94
...2335 n. 13, 76 L.Ed.2d at 552 n. 13. Because warrants are preferred, we resolve all doubts in favor of their validity. State v. Hennon, 314 N.W.2d 405, 407 (Iowa 1982); see also Upton, 466 U.S. at 733-34, 104 S.Ct. at 2088-89, 80 L.Ed.2d at 727-28. We do not make our own independent determi......
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State v. Randle, No. 95-1058
...circumstances of each case. Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627, 642 (1976); State v. Hennon, 314 N.W.2d 405, 406 (Iowa 1982). When there is an "isolated violation," "probable cause quickly dwindles with the passage of time." Stat......
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State v. Gogg, No. 96-387
...probable cause exists. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983); accord State v. Hennon, 314 N.W.2d 405, 407 (Iowa 1982). In doing so, the judge may rely on "reasonable, common sense inferences" from the information presented. See Gree......
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State v. Harris, No. 4-010 / 12-2139
...persons supplying hearsay information," probable cause exists. Illinois v. Gates, 462 U.S. 213, 238 (1983); accord State v. Hennon, 314 N.W.2d 405, 407 (Iowa 1982). In doing so, the judge may rely on "reasonable, common sense inferences" from the information presented. See St......