State v. Lemons

• Decision Date: 28 February 1974
• Docket Number: CA-CR,No. 2,2
• Citation: State v. Lemons, 519 P.2d 69, 21 Ariz.App. 316 (Ariz. App. 1974)
• Parties: STATE of Arizona, Appellant, v. Lyndall L. LEMONS, Jr., Appellee. 350.
• Court: Arizona Court of Appeals

Page 69

519 P.2d 69

21 Ariz.App. 316

STATE of Arizona, Appellant, v.Lyndall L. LEMONS, Jr., Appellee.

No. 2 CA-CR 350.

Court of Appeals of Arizona, Division 2.

Feb. 28, 1974.

Rehearing Denied March 26, 1974.

Review Denied April 23, 1974.

Gary K. Nelson, Atty. Gen., Phoenix, Dennis DeConcini, Pima County Atty. by Harold L. Higgins, Jr., Deputy County Atty. Tucson, for appellant.

S. Jeffrey Minker, Tucson, for appellee.

OPINION

HOWARD, Judge.

The issues in this case is the adequacy of the affidavit supporting a search warrant.The affidavit of the officer securing the warrant was based on information from an informant.Corroboration of the reliability of the informant is not at issue.The only question is whether the affidavit sufficiently informed the magistrate of the underlying circumstances in support of the informant's conclusion that the subject of the warrant was where it was claimed to be.¹The pertinent part of the affidavit stated:

'. . . Said informant has advised your affiant that LYNDALL L. LEMONS, JR. is in possession of a usable quantity of heroin.Further that LYNDALL L. LEMONS, JR. is hiding said heroin at his residence, 1510 South Rosemont Blvd.Further that your affiant's informant knows these facts to be true through personal observations within the past 72 hours. . . .'

Narcotics were seized pursuant to the warrant and the defendant was arrested.Defendant's motion to suppress was granted, the trial court being of the opinion that the affidavit in question was analogous to the one in the case of United States v. Long, 142 U.S.App.D.C. 118, 439 F.2d 628(1971).In Long the affidavit stated that the informant had '. . . personal knowledge that Lynwood 'Shorty' Long has worked in numbers offices in the local area for many years and is currently working in a numbers office, location unknown.'The court in Long stated that 'personal knowledge' is only a conclusion and thus, does not provide the magistrate with sufficient details upon which to base the issuance of a search warrant.

Any comparison of the Long case with the case sub judice is inapposite.The affidavit must contain sufficient detail so that the magistrate may know that the affiant is relying on something more substantial than a casual rumor, or an accusation based merely on an individual's general reputation.Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637(1969).An affidavit that the informant 'personally saw'the defendant in possession of narcotics on his person and in his house meets the required standards.State v. Adams, 109 Ariz. 556, 514 P.2d 477(1973).The essence of the affidavit in question is that the informant personally saw the defendant hiding heroin in his home.

Defendant argues that 'no one knows what is meant by personal observations of the informant.It could mean that the informant observed certain activities or circumstances other than the heroin itself which led him to believe the appellee was in possession of heroin at his residence. . . .'Personal observations' do not necessarily mean 'direct or visual observations' of heroin itself. . . .'Defe...