State v. Jung

• Decision Date: 22 February 1973
• Docket Number: CA-CR,No. 2,2
• Citation: 506 P.2d 648,19 Ariz.App. 257
• Parties: STATE of Arizona, Appellee, v. Arthur John JUNG, Appellant. 308.
• Court: Arizona Court of Appeals

Page 648

506 P.2d 648

19 Ariz.App. 257

STATE of Arizona, Appellee, v. Arthur John JUNG, Appellant.

No. 2 CA-CR 308.

Court of Appeals of Arizona, Division 2.

Feb. 22, 1973.

Rehearing Denied March 28, 1973.

Review Denied April 24, 1973.

Gary K. Nelson, Atty. Gen., by Cleon M. Duke, Asst. Atty. Gen., Phoenix, for appellee.

Laber, Lovallo & Colarich, Ltd. by Joseph A Lovallo, Tucson, for appellant.

HOWARD, Judge.

This appeal challenges the validity of a search warrant and the sufficiency of the evidence to support defendant's conviction of unlawful possession of narcotics for sale.

VALIDITY OF SEARCH WARRANT

On September 10, 1971, a state narcotics agent submitted an affidavit to a justice of the peace in support of a search warrant. Defendant contends that this affidavit suffered from constitutional infirmity thus invalidating the search warrant issued pursuant thereto. Both parties agree that we must confine our consideration to the affidavit alone since no other evidence was presented to the issuing magistrate at the time the search warrant was issued. State v. Allen, 9 Ariz.App. 196, 450 P.2d 708 (1969); State v. Greenleaf, 11 Ariz.App. 273, 464 P.2d 344 (1970). The affidavit recites in pertinent part:

'The undersigned being first duly sworn deposes and says:

That he (has reason to believe) that (on the premises known as) 131 West Rillito, Tucson, Arizona, a white stucco house with a white outbuilding with a tin roof, surrounded by a chain link fence located at the southeast corner of Rillito and 10th Avenue. In the City of Tucson, County of Pima State of Arizona, there is now being concealed certain property, namely, a useable quantity of marijuana. The possession of which property is a felony; is being used as the means of committing a felony and which property is possessed with the intention of using it as the means of committing the crime of Possession of Marijuana. And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows:

Your affiant, A. Carrillo, has spoken with a confidential and reliable informant who has stated that within the past 72 hours the informant has seen a useable amount of marijuana at the residence. This informant has established reliability by giving information on narcotics users and dealers that through an independent investigation has proven to be true. The informant has on two separate occasions made purchases of narcotics under controlled circumstances. The informant has given information that has resulted in the arrest of two persons and a large amount of drugs seized. The informant is knowledgeable in the use and sale of narcotics and the peculiarities of narcotic users and dealers. The informant has stated that he or she is in fear of his or her life if his or her identity were revealed. For this reason your affiant asks that the informant be kept confidential. Your affiant further asks that a search warrant for the residence be issued.'

Defendant claims this affidavit did not satisfy the requirements enunciated in Aguilar v. State of 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). In particular, he contends it was insufficient to establish probable cause to believe that the contraband was still at the described premises at the time the search warrant was issued, it failed to establish probable cause to believe that the contraband was in an outbuilding, it lacked specificity of description as to the place to be searched, and it failed to establish the reliability of the informant.

Defendant argues that the affidavit was insufficient in that it merely recited that the informant had observed the contraband on the premises 'within the past 72 hours' and did not indicate when the informant's information was obtained by affiant. In State v. Kelly, 99 Ariz. 136, 407 P.2d 95 (1965), a like contention was advanced and rejected by our Arizona Supreme Court:

'The contention that the affidavit is insufficient in regard to the date the information was received from the informant, and in regard to the date the informer obtained his information, is not well founded. The affidavit is positive and definite in that it states the informant had 'recently' seen defendant in possession of narcotics at both the East Sheridan address and in the Fiat automobile. Any more definite time might reveal the identity of the informant.' 99 Ariz. at 141, 407 P.2d at 98.

See also, Annot., 100 A.L.R.2d 526 § 5(c) (1965).

Defendant assails the affidavit because of lack of specificity with respect to the premises to be searched. He argues that since the informant had stated that he had seen marijuana 'at the residence', there was no probable cause to search the shed where the contraband herein involved was seized. He overlooks the fact, however, that the residence was described as 'a white stucco house with a white outbuilding with a tin roof, surrounded by a chain link fence'. There was no showing that the white stucco house and its outbuilding constituted more than one property--in fact, the same street address applied to both. We are of the opinion that the informant's observation of marijuana 'at the residence' furnished probable cause to believe that marijuana was either in the stucco house, the shed or both. An affidavit in support of the search warrant need not be drafted with the precision of a model legal instrument nor interpreted in a hyper-technical manner, State v. McMann, 3 Ariz.App. 111, 412 P.2d 286 (1966); Halpin v. Superior Court of San Bernardino County, 6 Cal.3d 885, 101 Cal.Rptr. 375, 495 P.2d 1295 (1972), and issuing magistrates are not to be confined by restrictions on the use of their common sense. City of Tacoma v. Mundell, 6 Wash.App. 673, 495 P.2d 682 (1972). The magistrate was not required to construe the word 'residence' as meaning only the white stucco house.

We agree with defendant that an affidavit must identify the premises to be searched with sufficient particularity. We hold that the description of the premises, as set forth above, satisfied this requirement. See, State v. Braun, 209 Kan. 181, 495 P.2d 1000 (1972). Nor does the fact that the outbuilding was described as being white with a tin roof, when in fact it was gray with a tin roof, invalidate the warrant. State v. Reynolds, 11 Ariz.App. 532, 466 P.2d 405 (1970). The description in a search warrant of a place to be searched is sufficient if the officer can, with reasonable effort, ascertain and identify the place intended to be searched with certainty. State v. Sero, 82 N.M. 17, 474 P.2d 503 (1970). Since there was only one outbuilding, there is no question but that the officer would be able to identify it.

Defendant finally attacks the validity of the search warrant on the ground that the affidavit failed to satisfy the second prong of the test laid down in the Aguilar-Spinelli duo, I.e., 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 affiant concluded that the informant's information was reliable. He claims that the affidavit failed to show how the informant knew the marijuana was at the residence. There is no merit to this argument since the affidavit stated that he had observed it there. Defendant also claims that it is deficient in that it does not state that the informant was familiar with the physical characteristics of marijuana, when he was at the residence, where at the residence he saw the substance, and in whose possession it was, and whether he was close enough to the substance to make positive identification of it as marijuana. He cites no authority for his position and we find no case that requires such specificity. In fact, were such details required the identity of the informer might be disclosed. State v. Kelly, supra.

The affidavit shows the informant actually saw the narcotics and had...