State v. Kaukani

• Decision Date: 13 April 1978
• Docket Number: No. 6215,6215
• Citation: 577 P.2d 335,59 Haw. 120
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. Blaisdell KAUKANI, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 335

577 P.2d 335

59 Haw. 120

STATE of Hawaii, Plaintiff-Appellant, v. Blaisdell KAUKANI, Defendant-Appellee.

No. 6215.

Supreme Court of Hawai'i.

April 13, 1978.

Syllabus by the Court

1. Purpose of a reviewing court's inquiry is merely to determine from the facts set forth in the affidavit submitted to the district court, along with permissible inferences to be drawn from the affidavit, whether the district court's decision to issue the search warrant was arbitrary because the affidavit contains no information which, if credited, is sufficient to establish probable cause.

2. Where a confidential informant's allegations, as contained in a police officer's affidavit, of the presence of marijuana in defendant's dwelling is the basis for the issuance of a search warrant, then in order for a finding of probable cause to be sustained, the affidavit must also set out some of the underlying circumstances from which the informant concluded that the illegal activity was taking place and some of the underlying circumstances from which the police officer concluded that the informant was reliable.

3. An affidavit for a search warrant which states that a confidential informant personally observed what "appeared to be" a marijuana plant hanging in the residence of the defendant suffices to establish the probable cause requirement that the affidavit set forth the underlying circumstances on which the informant based his allegation of illegal activity.

4. An affidavit for a search warrant which states that the affiant has received information from the informant on seven previous occasions, with the affiant being able to separately verify the information given on three of those occasions, leading to three separate arrests, suffices to establish the probable cause requirement that the affidavit set forth the underlying circumstances for the affiant's conclusion that the informer is reliable.

5. Failure of the affidavit to mention whether the confidential informant's prior information was related to the type of criminal activity for which the search warrant is being sought carries little significance insofar as the reliability of the informant is concerned.

6. Affidavits submitted in support of the issuance of search warrants should be read in a commonsense and realistic fashion, and not in a hypertechnical manner, and the resolution of doubtful or marginal cases should be largely determined by the preference to be accorded to warrants.

Calvin K. Murashige, Deputy Pros. Atty., Lihue, Kauai, for plaintiff-appellant.

Donald S. Kagawa, Lihue, Kauai, for defendant-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

OGATA, Justice.

Defendant-appellee Blaisdell Kaukani (hereinafter referred to as appellee) was charged with Promoting a Detrimental Drug in the Second Degree. ¹ Subsequent to arraignment, he moved to suppress all evidence relating to the charged offense. The evidence had been seized during a search of his dwelling conducted pursuant to a search warrant. The circuit court found a lack of probable cause to support the issuance of the search warrant, and it ordered the suppression of all evidence seized during the course of the search. The State appeals from the order of the circuit court.

The primary question presented is whether there was sufficient probable cause, based upon the information contained in a police officer's affidavit, to support the district court's issuance of the search warrant. We find that the affidavit supports the district court's finding of probable cause, and we consequently reverse the circuit court's order granting appellee's motion to suppress.

The search warrant was based upon the affidavit of Detective Frank Silva, who was assigned to the Vice Section of the Kauai Police Department. Detective Silva's affidavit was in turn based upon information received by him from an unidentified informant. The search warrant was issued on December 5, 1975, and on the same day appellee's dwelling was thoroughly searched pursuant to the warrant. As a result of the search, some 27 items of evidence were seized by the police.

A hearing on appellee's motion to suppress was held on May 13, 1976. During the course of that hearing, the State orally stipulated to a suppression of five items of evidence which had been uncovered in the living room of appellee's house. The house was occupied by three other persons besides appellee, and the State agreed that the evidence found in the living room could not be conclusively connected to appellee and would not be used against him at trial. ²

The circuit court ordered the suppression of the remainder of the evidence based upon two findings: (1) the affidavit of Detective Silva referred to the informant's observation of "what appeared to be" marijuana on appellee's premises, but did not definitely state that what was seen by the informant was in fact marijuana, and (2) the affidavit failed to contain any reference with respect to the ability of the informant to recognize marijuana nor whether the information given by the informant on prior occasions was related to drug cases or not. On the basis of these two grounds, the circuit court found that there was no probable cause and that the search warrant should not have been issued.

I.

At the outset, we note that the purpose of a reviewing court's inquiry is merely to determine from the facts set forth in the affidavit, along with permissible inferences to be drawn therefrom, whether the district judge's decision to issue the search warrant was arbitrary because the affidavit contains no information which, if credited, is sufficient to establish probable cause. ³ United States v. Giacalone, 541 F.2d 508, 514 (6th Cir. 1976); see State v. Kalai, 56 Haw. 366, 367-68, 537 P.2d 8, 10 (1975). After reviewing Detective Silva's affidavit and taking account of all inferences which can justifiably be drawn from it, we conclude that the affidavit contains information sufficient to at least minimally support a finding of probable cause. Hence we find that the district judge's decision was not arbitrary.

Beginning with State v. Davenport, 55 Haw. 90, 516 P.2d 65 (1973), this Court has echoed the standards set out by the Supreme Court of the United States in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), with regard to testing the sufficiency of an affidavit based upon an informer's tip. In order for a finding of probable cause to be sustained, therefore, the affidavit must set out some of the underlying circumstances from which the informant concluded that the illegal activity was taking place, as well as some of the underlying circumstances from which the police officer concluded that the informant was credible.

The affidavit in the instant case states that the informant, while on certain described premises, "observed what appeared to be a marijuana (Cannabis) plant hanging in said premises." ⁴ Although this quoted passage can by no means be regarded as a prime example of the kind of underlying circumstances demonstrating that an informant "could rightfully conclude that illegal activity was taking place", we are on the whole persuaded that the statement is minimally sufficient to satisfy the first prong of the "Aguilar two-prong test".

First, the affidavit makes clear that the informant personally observed what appeared to be marijuana. Such personal observation, as opposed to mere supposition, forms a valid basis for the conclusion that the information itself is accurate and reliable. See State v. Delaney, 58 Haw. 19, 22, 563 P.2d 990, 992 (1977); State v. Austria, 55 Haw. 565, 569, 524 P.2d 290, 294 (1974); State v. Davenport, supra, 55 Haw. at 95, 516 P.2d at 69.

Second, although the reference in the affidavit to "what appeared to be" marijuana is somewhat bothersome, we conclude that that language was permissible insofar as the question of whether the affidavit establishes probable cause is concerned. In State v. Diaz, 3 Or.App. 498, 473 P.2d 675 (1970), an informant told a police officer that he saw "what appeared to be heroin" in the defendant's hands. That information led to the stopping of the defendant's car by the police officer, who conducted a search of the vehicle. The search revealed a plastic bag containing white powder, which a field test showed to be heroin. On appeal, this warrantless search was upheld. Although it is true that other corroborative facts were present in that case to support a finding of probable cause, the court nevertheless explicitly rejected the defendant's objection to the informant's statement that the defendant had "what appeared" to be heroin in his hands. The court termed the defendant's objection to the informant's phraseology as merely "a play on words", and it summarily stated that "(o)nly a laboratory technician can positively affirm that a substance that appears to be heroin is in fact heroin." Id. at 502, 473 P.2d at 677.

We agree with the result reached in Diaz, and we find that it is not always necessary that an informant be certain that that which he has seen is in fact contraband material in order to sustain a finding of probable cause. This seems to be particularly true where drugs and other controlled substances are concerned, for instantaneous verification of the composition of such substances may not always be available to an informant.

In United States v. Cutts, 535 F.2d 1083 (8th Cir. 1976), a police officer stated in his affidavit that he had observed "powder represented to be heroin". The defendant challenged the sufficiency of the affidavit on the grounds that the affidavit did not further elaborate on who was present when the powder was observed, who had possession of the powder, and who represented it to be heroin. The Court of Appeals nevertheless upheld the issuance of the warrant on the basis of the affidavit. The court was persuaded by the following statement from United States v....