State v. Lindner

Citation592 P.2d 852,100 Idaho 37
Decision Date02 April 1979
Docket NumberNo. 12491,12491
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Alan Eugene LINDNER, Janis Lynn Seufert and William Thomas Seufert, Defendants-Appellants.
CourtUnited States State Supreme Court of Idaho

Klaus Wiebe, Boise, for defendants-appellants.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Jean R. Uranga, Asst. Atty. Gen., Boise, for plaintiff-respondent.

DONALDSON, Justice.

Defendants-appellants, Alan Eugene Lindner, Janis Lynn Seufert and William Thomas Seufert, after a jury trial, were found guilty of various felonies relating to the possession and delivery of a controlled substance (marijuana) in violation of I.C. § 37-2732. This appeal concerns the denial by the district court of appellants' motion to suppress evidence.

On March 16, 1976, Les Turner of the Idaho Bureau of Narcotics and Drug Enforcement appeared before a magistrate and filed an affidavit for search warrant. Turner swore to personal knowledge that:

That your affiant has purchased marihuana from Alan Lindner on an occasion in February 1976, and that on March 15, 1976 at or about 4:00 p. m. your affiant had a conversation with Alan Lindner wherein your affiant was informed by Alan Lindner that 200 pounds of marihuana would be delivered to the residence at 1630 Wildwood on March 15 or 16.

That your affiant has been in contact with state narcotics officers and is informed that the residence at 1630 Wildwood has been under surveillance since 5:40 p. m. March 16, 1976. That at 9:31 p. m. a small foreign vehicle arrived at the above mentioned residence. This vehicle bore California license 086 K2C. A male emerged from the vehicle to the residence and at 10:07 p. m. came outside and transferred several large bundles into the Volkswagen Van from the small foreign vehicle. The male also transferred from the small foreign vehicle a smaller bundle into the above mentioned residence.

That your affiant has had prior dealings with Alan Lindner and that on each occasion information supplied by the said Lindner has proved to be truthful.

It appears a search warrant pursuant to this affidavit was issued in the late evening hours of March 16 1976 that authorized the search of the above named premises "at any time day or night" for "controlled substances, to wit, marijuana." The warrant was executed at approximately 12:30 a. m. on March 17 and large quantities of marijuana were seized and the defendants-appellants arrested. 1

Prior to trial, the defendants-appellants moved to suppress the evidence seized subject to the warrant on the grounds that it was seized in violation of their rights under Idaho Constitution, Art. 1, § 17 and the fourth amendment to the United States Constitution. After a hearing on the issue, the district court denied the motion. This appeal concerns the denial of the motion to suppress.

I

Appellants initially assign as error the trial court's determination that the facts contained in the affidavit for search warrant were sufficient to establish probable cause for the issuance of the search warrant. Appellants contend that the affidavit did not provide facts sufficient to establish probable cause that the contraband was within the place to be searched At the time the search warrant was requested. Appellants point to the following facts from the affidavit for search warrant:

(1) 200 pounds of marijuana was supposed to arrive at 1630 Wildwood on or about March 15 or 16, 1976.

(2) The above information was received at or about 4:00 p. m. on March 15, 1976.

(3) However, surveillance of the residence did not begin until 5:40 p. m. on March 16, 1976 (approximately a 24 hour gap between receipt of the information and the initiation of surveillance).

(4) At 9:31 p. m. on March 16, 1976 a car with California license plates arrived at the residence and several large bundles were transferred from this car to a Volkswagen Van. A smaller package was transferred from the auto to the residence.

The search warrant was issued in the late evening hours of March 16, 1976.

Appellants assert that the 24 hour gap between when the information was received and the surveillance begun rebuts a finding of probable cause that the marijuana was present at the premises at the time the warrant was requested. They argue the marijuana could have arrived during this 24 hour gap period and presumably been delivered out of the house during this period. Defendants further argue that the arrival of the auto with California license plates and the accompanying activity did not cure the problems caused by the 24 hour gap in surveillance because the arrival of the car and transfer of the bundles could have been consistent with the transfer of personal items (i. e. luggage and clothing). Appellants contend that continuous surveillance from the time the information was received and a statement that no other unusual activity occurred prior to the arrival of the California auto would have been necessary to establish probable cause.

This Court, in discussing applicable principles for analyzing a challenge to a search warrant allegedly based on a lack of probable cause, stated the following in State v. Oropeza, 97 Idaho 387, 545 P.2d 475 (1976):

The magistrate must find probable cause to support the issuance of the search warrant. The quantum of information which constitutes probable cause sufficient to justify issuance of a search warrant must be measured by the facts of the particular case. We acknowledge that " . . . affidavits for search warrants . . . must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion." The issuing magistrate's determination " . . . of probable cause should be paid great deference by reviewing courts. . . . " 2

Our review of the information contained in the affidavit indicates that the magistrate correctly determined there was probable cause for the issuance of the search warrant and that the trial court was correct in upholding that determination. The affidavit reveals that an informant's information indicated a substantial quantity of marijuana would be delivered to the residence in question on March 15 or 16. Sufficient information was contained in the affidavit to establish the informant's credibility and reliability and appellant has not challenged the trial court's finding as to the credibility of the informant on appeal. Further, activity consistent with the predicted delivery was observed by law enforcement officers in the evening hours of March 16. The above information interpreted in a commonsense and realistic fashion justified a reasonable belief by the magistrate that the place to be searched contained contraband. The belated surveillance of the residence did not vitiate the information contained in the affidavit which, in and of itself, provided an adequate basis for a determination of probable cause. We therefore find no error in the trial court's refusal to suppress the evidence on the ground that probable cause had not been shown for the issuance of the warrant.

II

Appellants next contend the affidavit for search warrant contains material misrepresentations by the affiant which were necessary to a finding of probable cause and therefore any evidence seized subject to that warrant should be suppressed. A literal reading of the affidavit indicates that Alan Lindner informed the affiant Les Turner "that 200 pounds of marijuana would be delivered to the residence at 1630 Wildwood. . . . " The actual information received by Turner was that the contraband would arrive at "Bill's," which Turner through his own investigation determined was 1630 Wildwood.

The United States Supreme Court in the recent case of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) discussed the applicable standard for analyzing an attack on a search warrant where the challenge is based on alleged material misrepresentations of fact in the affidavit supporting the warrant. 3 The Court in Franks held that if the defendant in an evidentiary hearing establishes by a preponderance of the evidence that the false statement was included in the warrant affidavit by the affiant knowingly and intentionally, or with reckless disregard for the truth, and with false information discarded, the remaining content of the affidavit is insufficient to establish probable cause, then "the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit."

It is clear that the affidavit's recital that Alan Lindner informed the affiant that the marijuana would be delivered to 1630 Wildwood was not technically correct. However, negligent or innocent misrepresentations, even if necessary to establish probable cause, will not invalidate a warrant. United States v. Hole, 564 F.2d 298 (9th Cir. 1977); United States v. Collins, 549 F.2d 557 (8th Cir. 1977), Cert. denied, 431 U.S. 940, 97 S.Ct. 2656, 53 L.Ed.2d 259 (1977); United States v. Lee, 540 F.2d 1205 (4th Cir. 1976), Cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976). Therefore, the critical inquiry is whether appellants have proved by a preponderance of the evidence that the affiant knowingly and intentionally or recklessly included the material misrepresentations in the affidavit. Franks v. Delaware, supra.

In reviewing the record of the suppression hearing below it is apparent that at most only a negligent misrepresentation was involved. Turner, the affiant, knew who "Bill" was prior to March 15, 1976, and was able to ascertain his address through routine investigation. Turner's mistake was in stating the exact address was recited to him by Lindner rather than what actually happened. Appellants failed to provide sufficient evidence to prove that the discrepancy was included in the affidavit intentionally or with reckless disregard for the truth. To the contrary, the record indicates the discrepancy was merely an oversight and...

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