State v. Kelly

• Decision Date: 03 November 1965
• Docket Number: No. 1442,1442
• Citation: 407 P.2d 95,99 Ariz. 136
• Parties: The STATE of Arizona, Appellee, v. Wiley Edward KELLY, Appellant.
• Court: Arizona Supreme Court

Page 95

407 P.2d 95

99 Ariz. 136

The STATE of Arizona, Appellee, v. Wiley Edward KELLY, Appellant.

No. 1442.

Supreme Court of Arizona, In Banc.

Nov. 3, 1965.

Darrell F. Smith, Atty. Gen., Robert W. Pickrell, former Atty. Gen., Stirley Newell, former Asst. Atty. Gen., for appellee, Allen L. Feinstein, Phoenix, of counsel.

Joe R. Glenn, Mesa, for appellant.

McFARLAND, Justice.

This is an appeal from a judgment and conviction for the crime of the illegal possession of narcotics, in violation of A.R.S. § 36-1002, as amended in 1961. Appellant, hereinafter referred to as defendant, was tried before a jury, adjudged guilty and received a sentence of not less than six nor more than eight years in the Arizona state prison. From this conviction and sentence defendant appeals.

The facts of the case are as follows: On July 26, 1963, at approximately 9:30 p. m., three Phoenix city detectives, accompanied by three narcotics agents from the Department of Liquor Licenses and Control, searched the premises at 3439 East Sheridan in Phoenix. The search was made under authority of a search warrant, issued earlier that day by Justice of the Peace Ida Ann Westfall, which authorized a search of the premises in question and a certain Fiat automobile located on those premises. Upon arriving at the East Sheridan address, the officers were admitted to the premises by the 16-year-old brother of defendant, and proceeded to conduct a search of the home. Defendant and one Marlene Walsh remained in the home while the search was being conducted. During the course of the search a satchel, containing vials of drugs and various narcotics, was discovered behind a washing machine in a storage room at the rear of the house. Defendant and Marlene Walsh were tried in October 1963, during which a mistrial was granted because of certain prejudicial statements made before the jury by the deputy county attorney. Defendant and Mrs. Walsh were later tried in November 1963. A pre-trial motion to suppress the evidence obtained during the search was denied. The satchel and its contents were admitted into evidence over the objections of defendants. Defendant was found guilty while the jury became deadlocked regarding the charges against Mrs. Walsh.

Defendant asserts that it was error for the lower court to deny the motion to suppress admission of the narcotics that were found during the course of the search of the East Sheridan residence, and in admitting the same over his objection. Defendant in this contention stated that the affidavit 'supporting the search warrant was insufficient and invalid, because it lacked the following allegations necessary for a nighttime search:

'A. A positive allegation that the Affiant knew that the property was at the place to be searched, or facts sufficient to show that Affiant positively knew this.

'B. An allegation by the Affiant as to the date or time he received the information from the informer.

'C. An allegation by the Affiant as to the date or time the informer obtained his information.

'D. An allegation by the Affiant as to either the name of the informer, or an allegation that the informer is reliable and the facts that the Affiant bases this conclusion on.'

The answer to defendant's assignments of error requires an examination of what constitutes probable cause for issuing a search warrant. Our statutes set forth the conditions under which a search warrant may be issued, as follows:

' § 13-1443. Conditions precedent to issuance

No search warrant shall be issued except on probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and place to be searched.

' § 13-1444. Examination on oath; depositions

A. The magistrate shall, before issuing the warrant, examine on oath the complainant and witnesses the complainant produces, take their depositions in writing, and cause them to be subscribed by the parties making them.

'B. The depositions shall set forth the facts tending to establish the grounds of the application or probable cause for believing they exist.

* * *

* * *

' § 13-1447. Time of service; exception

The magistrate shall insert a direction in the warrant that it be served in the day time, unless the affidavits are positive that the property is on the person of the party, or in the place to be searched, in which case he may insert a direction that the warrant be served at any time of the day or night.'

It will be noted that it is the duty of the court to examine complainant under oath; also that his testimony must be supported by affidavit 'naming or describing the person, and particularly describing the property and place to be searched.' The reason for requiring the examination of the magistrate is that the magistrate makes the determination of probable cause rather than the officer of officers applying for the search warrant. Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

"that the inferences from the facts which lead to the complaint '[must] be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.' Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436. * * *" 378 U.S. at 112, 84 S.Ct. at 1513.

When a question is raised in regard to a search warrant the court must determine whether the procedure has been substantially followed, and whether the court issuing the warrant had sufficient grounds upon which to base its decision. The courts have held that there is a presumption in favor of the validity of a search warrant. State v. Sheffield, 97 Ariz. 61, 396 P.2d 828; Booze v. State, 390 P.2d 261 (Okl.); People v. Lombardi, 18 A.D.2d 177, 239 N.Y.S.2d 161; Addison v. United States, 5 Cir., 317 F.2d 808; Wilson v. United States, 10 Cir., 218 F.2d 754; Unites States v. Thomas, D.C., 216 F.Supp. 942; Commonwealth v. Fancy, 207 N.Ed.2d 276 (Mass.); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307.

In the instant case defendant moved to suppress the evidence obtained by the search warrant. The testimony elicited during this pre-trial hearing is not before this court. In State v. Sheffield, supra, on a motion to suppress evidence obtained as a result of the search where the transcript of the hearing was not before the court, we held:

'* * * Immediately preceding the trial, the trial judge held a hearing on this matter at which time the arresting officer and another officer testified. At the conclusion of this hearing the trial judge denied defendant's motion to suppress. The transcript of the testimony elicited during this pretrial hearing is not before this Court. We cannot consider this alleged error where the transcript of such matter is not before us. State v. De Marinis, 92 Ariz. 225, 375 P.2d 574 (1962). In such absence, we will presume the trial court acted on sufficient grounds and did not commit error in denying defendant's motion to suppress the evidence. See People v. Chessman, 35 Cal.2d 455, 218 P.2d 769, 19 A.L.R.2d 1084 (1950), cert. denied 340 U.S. 840, 71 S.Ct. 29, 95 L.Ed. 616. Also see Ackerman v. Southern Arizona Bank & Trust Co., 46 Ariz. 343, 50 P.2d 949 (1935).' 97 Ariz. at 64, 396 P.2d at 830.

We must presume in the instant case that the court, in passing upon the motion to suppress the evidence, went into the matter carefully, and found that there was sufficient grounds for the issuing of the warrant by the magistrate.

In the case of United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, the United States Supreme Court said:

'* * * In our view the officers in this case did what the Constitution requires. They obtained a warrant from a judicial officer 'upon probable cause, supported by Oath or Affirmation and particularly describing the place to be searched and the * * * things to be seized.' It is vital that having done so their actions should be sustained under a system of justice responsive both to the needs of individual liberty and the rights of the community.' 380 U.S. at 112, 85 S.Ct. at 747.

Having found these procedures were followed in the instant case, the actions of the officers should be sustained.

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. In the case of Waggener v. McCanless, 183 Tenn. 258, 191 S.W.2d 551, 162 A.L.R. 1402, where it was the contention of defendant that the word 'recently' was not sufficiently definite as to time, the court stated:

'It remains to consider whether a statement that the officer's informant had observed an offense 'just recently' and 'within the last few days,' was a statement of the time element of sufficient definiteness and certainty to supply the time element in a reasonable conclusion of probable cause. We have no hesitation in deciding that to a reasonable mind, a statement by an observer at the time he made application for a warrant, that he had just recently seen a quantity of liquor stored on certain premises and had within the last few days, bought drinks of intoxicating liquor on those premises, would lead to the conclusion that the unlawful condition continued to exist on those premises at the time of the application for the warrant.' 191 S.W.2d at 554, 162 A.L.R. at 1405.

Other courts have held the word 'recently' is sufficiently definite as to the time the informant received his information. Ellison v. State, 186 Tenn. 581, 212 S.W.2d 387; Douglas v. State, 144 Tex.Cr.R. 29, 161 S.W.2d 92; Bickerstaff v. State, 139 Tex.Cr.R. 69, 139 S.W.2d 110; Hartless v. State, ...