State v. Hubbard
| Citation | 523 P.2d 387,215 Kan. 42 |
| Decision Date | 15 June 1974 |
| Docket Number | No. 47286,47286 |
| Parties | STATE of Kansas, Appellee, v. John HUBBARD, Appellant. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. In every instance where probable cause to issue a search warrant is based upon hearsay information, sufficiency of the supporting affidavit must be decided on its own merits.
2. Although a search warrant may be based upon hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances from which the affiant concludes the informant, whose identity need not be disclosed, is credible or his information reliable.
3. When an officer is proceeding lawfully in making a valid search for items listed in a search warrant and discovers property known to be stolen but beyond the scope of the warrant and unrelated to the listed items, he may seize the same; and such property, if otherwise unobjectionable, may be admitted in evidence for the prosecution of the theft thereof. (Following State v. Turner, 210 Kan. 836, Syl. 1, 504 P.2d 168.)
4. The validity of a search is not affected by the seizure of property beyond the scope of a warrant if the officer at the time of the seizure has probable cause, as distinguished from mere suspicion, to believe the property to be stolen. (Following State v. Turner, supra, Syl. 2)
5. The record in a prosecution for theft under K.S.A.1972 Supp. 21-3701 is examined and it is held: The court did not err in denying defendant's motion to quash the search warrant and suppress the evidence obtained thereunder.
Wilbert W. Phalen, Pittsburg, argued the cause and was on the brief for appellant.
Vernon D. Grassie, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.
Defendant appeals from conviction of theft in violation of K.S.A.1972 Supp. 21-3701 (now K.S.A.1973 Supp. 21-3701) on the ground the evidence against him was the product of an illegal search and seizure.
On December 9, 1972, a search warrant was issued from the city court of Pettsburg authorizing search of defendant's residence located at 710 East 22nd Street, Pittsburg. Three police officers went to defendant's home to execute the warrant. They conducted an unsuccessful search for the two items listed on the warrant, a chain saw and a large suitcase, but seized nineteen unlisted items believed by them to be stolen property. An information was filed against defendant on January 24, 1973 charging him with theft of five items listed on the return. Defendant moved to quash the search warrant on grounds the affidavit in support of the warrant did not state specific facts sufficient to show probable cause that a crime had been or was being committed, and items listed on the warrant to be searched for were not particularly described. Defendant also moved to suppress the evidence on grounds the unlisted items were seized as part of a general search without a valid warrant, and without probable cause or actual knowledge that they were contraband or fruits of a particular crime. After a hearing on the motions, the trial court concluded the search warrant was validly issued and legally executed, but officers conducting the search had probable cause to seize only the five items which were the basis of the complaint. All other items listed on the return were suppressed. At the trial and again in his motion for a new trial, defendant renewed his objections to introduction of any evidence seized pursuant to the warrant.
On appeal, defendant again raises the issue of whether the search warrant was properly issued. The warrant was issued based upon the affidavit of Officer Floyd Bradley who stated that a reliable informant had seen stolen property at defendant's residence. His testimony at the hearing on the motion to quash revealed that the informant had at one time been a suspect in the burglary, but this information was not given to the magistrate or contained in the affidavit. Defendant contends the magistrate could not make an independent determination of the credibility and reliability of the informant without that information, and, therefore, had no probable cause basis to issue the warrant.
The requirements for issuance of a warrant based upon hearsay evidence are set out in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, as follows:
'Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, . . . the magistrate must be informed of 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 dislosed, . . . was 'credible' or his information 'reliable.' . . .' (p. 114, 84 S.Ct. p. 1514.)
This test has been applied in Jones v. Crouse, 447 F.2d 1395, (10th Cir. 1971), cert. den. 405 U.S. 1018, 92 S.Ct. 1298, 31 .l.Ed.2d 480, and State v. Braun, 209 Kan. 181, 495 P.2d 1000, cert. den. 409 U.S. 991, 93 S.Ct. 334, 34 L.Ed.2d 258, to mention but a few among many cases. In every case sufficiency of the affidavit must be decided on its own merits.
Officer Bradley's affidavit in support of the search warrant set forth the following facts regarding the reliability of the unidentified informant:
The statements of affiant in the second quoted paragraph relate in a general way how the informant got his information and why the informant was convinced the stolen items were on the premises to be searched. This information...
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Valerio v. State
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