State v. Iverson

• Decision Date: 27 February 1985
• Docket Number: No. 14402,14402
• Citation: 364 N.W.2d 518
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Nels IVERSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 518

364 N.W.2d 518

STATE of South Dakota, Plaintiff and Appellee, v. Nels IVERSON, Defendant and Appellant.

No. 14402.

Supreme Court of South Dakota.

Argued Sept. 10, 1984.

Decided Feb. 27, 1985.

Richard Dale, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Karen E. Bjerke of Hagen & Wilka, Sioux Falls, for defendant and appellant.

MORGAN, Justice.

Defendant, Nels Iverson (Iverson), was charged with the unauthorized distribution of marijuana, possession of more than one pound of marijuana, and possession of a controlled substance, cocaine. A jury convicted Iverson on the charges of distribution of marijuana and possession of more than one pound of marijuana and acquitted him on the charge of possession of a controlled substance. Iverson appeals from these convictions. We affirm.

Sometime between April 1 and April 9, 1983, a Hughes County Deputy Sheriff asked Robert Hammer (Hammer) to consider working as a police informant in drug investigations. Hammer initially declined. On April 9 or 10, Hammer reconsidered and informed the deputy that he would purchase drugs for law enforcement authorities. The Hughes County Sheriff's Office was not handling drug enforcement investigations at that time and the deputy introduced Hammer to Tom Disburg (Disburg), a Division of Criminal Investigation (DCI) Agent. On April 15, Hammer told Disburg and the deputy that he could purchase marijuana from Iverson. While in Iverson's presence on Friday, April 15, Hammer observed Iverson's roommate toss a small bag of marijuana to a named individual who was standing beneath her apartment window. Hammer arranged to meet with and purchase marijuana from Iverson after 3:00 p.m. on the same day. Hammer then arranged an appointment with Disburg. A Pierre Police Detective accompanied Disburg and the two met with Hammer in a parking lot at approximately 2:30 p.m. that afternoon. The purpose of the meeting was to arrange a "controlled buy" and thereby enable law enforcement personnel to monitor the drug transaction. Hammer and his automobile were searched for drugs and a tape recorder with a microphone was hidden in Hammer's clothing. Disburg and the detective then followed Hammer and kept his car in sight all the way to the apartment building in which Iverson lived. They parked down the street and watched Hammer enter the building.

Iverson's roommate, who testified and corroborated Hammer's testimony regarding the transaction, was present during the "controlled buy." Her son and Iverson's mother were also present. Hammer purchased two ounces of marijuana from Iverson at $40.00 per ounce and paid with money Disburg had given him. Iverson procured the marijuana from a paper sack in a closet. Hammer observed more than a pound of marijuana while in the apartment.

Disburg and the police detective watched Hammer leave the apartment building and followed him back to the parking lot. They again maintained visual contact with Hammer's vehicle. Upon their return to the parking lot, Disburg took the marijuana and the tape recorder from Hammer and sent the marijuana to the State Chemical Laboratory for analysis and weighing.

Based on Hammer's observations and the fruits and recording of this transaction, Disburg requested a warrant to search Iverson's apartment. Disburg's affidavit did not identify Hammer as the informant and Hammer did not appear before the magistrate. ¹ The warrant was issued on Monday, April 18, 1983, and executed by Disburg, the detective, and two deputies, on Tuesday, April 19, four days after the Friday transaction. When the law enforcement Iverson raises six issues on this appeal: (1) whether the affidavit in support of the search warrant made an adequate showing of probable cause; (2) whether the tape recording of the drug transaction should have been suppressed for lack of prior authorization for the interception of oral communications, pursuant to SDCL ch. 23A-35A; (3) whether the trial court denied Iverson a fair trial when it stated to the jury, "I believe the tape recording was made on 4-15 of '83 and an attempt was made to purchase two ounces of marijuana from Nels Iverson"; (4) whether the search warrant was unlawfully executed in violation of the knock and announce statute; (5) whether Iverson was entrapped and therefore entitled to an acquittal; and (6) whether Iverson was denied his constitutional rights and due process of law as a result of ineffective assistance of counsel at trial.

personnel arrived at the apartment, there was no one present to answer the door. Disburg obtained a key from the apartment complex manager and the officers searched the apartment. A quantity of marijuana, a scale and four amber vials were found and sent to the State Chemical Laboratory for analysis. A jury found Iverson guilty of distribution of marijuana and possession of more than one pound of marijuana.

Iverson first contends that Disburg's affidavit in support of his request for a search warrant was insufficient to justify the magistrate's determination that there was probable cause to believe that Iverson possessed marijuana at his residence on the date the search warrant was issued. His contention is based on two United States Supreme Court decisions, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). ² Under Aguilar, the affidavit must set out a basis for the affiant's conclusion that an informant was "credible" or that his information was reliable. 378 U.S. at 114, 84 S.Ct. at 1514, 12 L.Ed.2d at 729. The magistrate must "judge for himself the persuasiveness of the facts relied on ... to show probable cause." Id. He may not accept the informant's suspicion, belief or mere conclusion without question. Id.

[T]he 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 disclosed, was "credible" or his information "reliable." Otherwise, "the inferences from the facts which lead to the complaint" will be drawn not "by a neutral and detached magistrate," as the Constitution requires, but instead, by a police officer "engaged in the often competitive enterprise of ferreting out crime," or, as in this case, by an unidentified informant. (citations omitted)

378 U.S. at 114-15, 84 S.Ct. at 1514, 12 L.Ed.2d at 729.

In Spinelli, supra, the United States Supreme Court built on Aguilar and developed and applied the Aguilar-Spinelli test to determine the adequacy of affidavits containing reports from anonymous informants and independent corroboration. The Spinelli Court pointed out that the informant's tip was a fundamental part of the affidavit in that it provided the only connection between innocent-seeming activity and the assertion of suspicion. 393 U.S. at 414-15, 89 S.Ct. at 588, 21 L.Ed.2d at 642-43. Because of the importance of this connection in the magistrate's decision to issue the search warrant, the Spinelli Court held that the first step in the Aguilar analysis must be an assessment of the probative value of the informant's report under the Aguilar standards. 393 U.S. at 415, 89 S.Ct. at 588, 21 L.Ed.2d at 643.

In the event the tip is found inadequate under Aguilar because the magistrate was not shown sufficient underlying circumstances to support the informant's conclusion, or sufficient underlying circumstances to support the affiant's faith in the informant's credibility or reliability, the magistrate should then consider allegations based upon independent investigation which corroborate the hearsay information. Id. The Aguilar standards must also be applied in the second step of the analysis. There the magistrate must ask whether the tip, when certain parts are corroborated by independent sources, is as trustworthy as a tip which would pass the Aguilar tests without independent corroboration. Id.

The Aguilar tests are relevant to implement the long-standing principle that probable cause must be determined by a "neutral and detached magistrate." "A magistrate cannot be said to have properly discharged his constitutional duty if he relies on an informer's tip which--even when partially corroborated--is not as reliable as one which passes Aguilar's requirements when standing alone." Spinelli, 393 U.S. at 415-16, 89 S.Ct. at 589, 21 L.Ed.2d at 643.

We read this to mean that the magistrate may not simply rely on the fact that there is some independent corroboration; rather, he must determine whether the informant's tip, as corroborated, meets the Aguilar standard of validity and credibility or reliability.

The United States Supreme Court noted when it adopted the rather stringent Aguilar-Spinelli test that they were not retreating from the established propositions that: (1) only the probability, and not a prima facie showing of criminal activity is the standard of probable cause, (2) probable cause affidavits are tested by less rigorous standards than those governing the admissibility of evidence at trial, (3) magistrates are not confined to narrow limitations or restrictions on the use of their common sense in the determination of probable cause, and finally (4) a magistrate's determination of probable cause should be paid great deference by reviewing courts. Spinelli, 393 U.S. at 419, 89 S.Ct. at 590-91, 21 L.Ed.2d at 645.

This court's determination of whether an affidavit in support of a search warrant shows probable cause for issuance of the warrant must be based upon an examination of the four corners of the affidavit. State v. Smith, 281 N.W.2d 430 (S.D.1979). Probable cause in relation to search warrants is defined as " 'the existence of facts and circumstances as would warrant an honest belief in the mind of a reasonable,...