State v. Morgan

• Decision Date: 09 April 1977
• Docket Number: No. 48412,48412
• Citation: 222 Kan. 149,563 P.2d 1056
• Parties: STATE of Kansas, Appellant, v. Garth E. MORGAN et al., Appellees.
• Court: Kansas Supreme Court

Page 1056

563 P.2d 1056

222 Kan. 149

STATE of Kansas, Appellant, v.Garth E. MORGAN et al., Appellees.

No. 48412.

Supreme Court of Kansas.

April 9, 1977.

Syllabus by the Court

In an interlocutory appeal by the state from an order suppressing a search warrant, the record is examined and the law relating to probable cause reviewed.The trial court erred in suppressing the search warrant.

Stephen M. Joseph, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Vern Miller, Dist. Atty., and Robert L. Kennedy, Jr., Asst. Dist. Atty., were on the brief for appellant.

Jack Focht, of Smith, Shay, Farmer & Wetta, Wichita, and William D. Rustin, of Wallace, Rustin, Just, Dewey & Thomas, Wichita, argued the cause and were on the brief for appellees.

OWSLEY, Justice.

This is an interlocutory appeal by the state from an order suppressing evidence obtained under a search warrant.

The search warrant was issued as the result of almost a month of investigative work by the Wichita Police Department narcotics section.Detective John Hayworth made contact with a young couple who offered to obtain drugs for him, unaware that he was a police officer.After Hayworth made several purchases from the couple he attempted to determine the source of their supply.His investigation led him to believe their drugs came from a duplex at 1162 North Richmond in Wichita.

On January 12, 1976, Hayworth made application for a search warrant for the duplex.The application stated the affiant believed an unknown quantity of cocaine and United States currency, listed by serial numbers, were located at 1162 North Richmond.In addition, the application revealed the following relating to probable cause:

'The affiant is a detective in the Wichita Police Department, assigned to the Narcotics Section.

'The affiant has purchased various drugs from one Gary Hollingsworth on four separate occasions within the last two weeks.On 1-3-76, Gary Hollingsworth, who had previously agreed to sell affiant some cocaine, met the affiant at the Indian Hills Shopping Center to consummate the purchase.This meeting occurred during the evening hours.Gary Hollingsworth, after taking the affiant's purchase money, told affiant that he was then going to get the cocaine at 'his man's' house.Hollingsworth then left.From that point Hollingsworth was surveilled by other police officers and the police helicopter.Hollingsworth was observed driving to North Richmond and was observed entering the north half of a duplex on the eleven hundred block of Richmond.I later determined that the address of this duplex unit is 1162 North Richmond.Hollingsworth was then observed leaving the duplex and returning to the Indian Hills Shopping Center.Hollingsworth was not observed stopping at any other locations.When Hollingsworth returned to the Center, he delivered one gram of cocaine to the affiant.

'The affiant later determined, through an independent source, that one Garth Morgan resides at 1162 North Richmond.On one of the three other occasions that affiant has purchased drugs from Gary Hollingsworth the affiant asked Hollingsworth how much an ounce would cost.Hollingsworth went to a phone and made a phone call.When the other party answered, Hollingsworth asked if 'Garth's' there.The other party evidently said no, because Hollingsworth then asked if 'Ferrell' was there.The affiant also is aware that one Ferrell D. Houser was arrested on 12-23-75 and gave his address as 1162 North Richmond, for possession of marijuana and paraphernalia.

'On January 12, 1976, the affiant talked with Gary Hollingsworth's wife on the telephone for the purposes of purchasing more drugs.When the affiant asked her about the cocaine, she asked another person in the room with her, 'have you talked to Garth today?'Both Hollingsworths have told the affiant that they are expecting a quantity of cocaine to be delivered today.In another phone conversation on the same day, Gary Hollingsworth told the affiant that he had talked to 'Garth' and that Garth said he could have four ounces Wednesday afternoon, 1-14-76.

'As a result of the telephone conversation with Mrs. Hollingsworth, the affiant arranged to purchase a quantity of cocaine from the Hollingsworths.The affiant intends to use the currency listed elsewhere in this application and in the search warrant to make this purchase.The affiant believes that this currency, the serial numbers of which are listed on the search warrant, will be taken to 1162 North Richmond by one of the Hollingsworths.

'The affiant believes that probable cause exists to believe that cocaine will be found at 1162 North Richmond and that the listed currency will also be found at that address.

'WHEREFORE he prays that a search warrant be issued, according to law, to search for, apprehend and seize, the above described items, if any there be, holding them to be dealt with according to law.'

As a result of the application, a search warrant for the north half of the duplex known as 1162 North Richmond was issued by Judge Owen Ballinger of the Sedgwick County Court of Common Pleas.

On January 14, 1976, Hayworth contacted Gary Hollingsworth and arrangements were made to meet the next day to purchase the cocaine described in the search warrant and affidavit.The next evening tho two men met and negotiated the sale of one-half ounce of cocaine for $750.Hayworth gave Hollingsworth the money and Hollingsworth left ot pick up the cocaine.The police followed him to 1162 North Richmond.Hollingsworth returned to deliver the cocaine to Hayworth and was arrested.Other officers converged on the duplex and executed the warrant; whereupon, they recovered a large quantity of cocaine, other drugs and the marked money.

An information was filed against the five defendants in this action charging them with possession and sale of cocaine, possession of cocaine with the intent to sell, possession of amphetamines, possession of marijuana, possession of marijuana with the intent to sell and conspiracy to sell cocaine.The defendants filed a motion to suppress the evidence obtained as a result of the search at 1162 North Richmond.After a hearing on the motion, the trial court suppressed the evidence.

It is an elementary rule of law that a search warrant may not issue except on a showing of probable cause.The warrant must particularly describe the person, place or means of conveyance to be searched and the things to be seized.(K.S.A. 1976 Supp. 22-2502;State v. Gordon, 221 Kan. 253, 559 P.2d 312.)Sufficient facts must be placed before the issuing magistrate to enable him to make an intelligent and independent determination that probable cause exists.Bald conclusions, mere affirmations of belief, or suspicions are not enough and, while an affidavit may be based on hearsay, there must be sufficient affirmative allegations of fact as to affiant's personal knowledge to provide a rational basis upon which a magistrate can make a judicious determination of probable cause.(Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723;Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503;Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159;State v. Hart, 200 Kan. 153, 162, 434 P.2d 999.)

'Probable cause' to issue a search warrant is like a jigsaw puzzle.Bits and pieces of information are fitted together until a picture is formed which leads a reasonably prudent person to believe a crime has been or is being committed and that evidence of the crime may be found on a particular person or in a place or means of conveyance.(K.S.A. 1976 Supp. 22-2502.)In State v. Lamb, 209 Kan. 453, 497 Pa.2d 275, this court explained:

'Probable cause to arrest refers to that quantum of evidence which would lead a prudent man to believe that the offense has been committed.(Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134(1959).)It is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not.It is only necessary that the information led a reasonable officer to believe that guilt is more than a possibility, and it is well established that the belief may be predicated in part upon hearsay information.(Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327(1959).)The quantum of information which constitutes probable cause to arrest must be measured by the facts of the particular case.(Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441(1963).)

'Probable cause exists where the facts and circumstances within the arresting officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the brlief that an offense has been or is being committed.(Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, ...