State v. Ricci

• Decision Date: 08 February 1984
• Docket Number: No. 82-531-C,82-531-C
• Citation: 472 A.2d 291
• Parties: STATE v. William S. RICCI. A.
• Court: Rhode Island Supreme Court

Page 291

472 A.2d 291

STATE v. William S. RICCI.

No. 82-531-C.A.

Supreme Court of Rhode Island.

Feb. 8, 1984.

Dennis J. Roberts II, Atty. Gen., John J. McMahon, Sp. Asst. Atty. Gen., for plaintiff.

John F. Cicilline, Providence, for defendant.

OPINION

SHEA, Justice.

The defendant, William S. Ricci, appeals from a Superior Court conviction of receiving stolen goods worth over $500 in violation of G.L.1956 (1969 Reenactment) §§ 11-41-2 and -5. ¹ He was sentenced to four years at the Adult Correctional Institutions with two years suspended and two years' probation to commence upon his release. The defendant's appeal raises as error matters relating to a search warrant and the admission of certain exhibits and testimony despite the state's alleged lack of compliance with Rule 16 of the Superior Court Rules of Criminal Procedure. The defendant also challenges portions of the jury instructions. We affirm.

On March 5, 1979, a theft occurred at Jeremiah Jewelry, Inc., resulting in a loss of up to one million pairs of earrings collectively valued at approximately $40,000. Two months later an unnamed customer of Jeremiah, Inc., showed the owners, Bruce and Andrew Jeremiah (the Jeremiahs), a sample of earrings given to him by defendant. Both the customer and the Jeremiahs recognized the earrings as the product of Jeremiah, Inc., and as part of the stolen goods. This information was reported to the police.

After further investigation, a detective of the Providence police department and a lieutenant of the Pawtucket police department applied for a warrant to search Ricci, Inc., defendant's place of business. The affidavit submitted to a District Court judge included allegations that the unnamed customer of Jeremiah, Inc., was approached by defendant and was given a sample of earrings available for sale and that defendant told the customer that he had as many of these enamel-plated earrings as the customer wanted. It was further alleged that an independent investigation by the police ascertained that the metal findings contained in these samples were manufactured by the Evans Findings Co., Inc., exclusively for Jeremiah, Inc., and that they were never sold to any other company. Investigation also disclosed that defendant conducted a jewelry business at the location to be searched. The sample of jewelry that had been given to the unnamed customer was presented to the District Court judge with the application. The warrant was issued for a search of Ricci, Inc.

The police asked Andrew Jeremiah, because of his knowledge of the jewelry in question, to assist them in the search of Ricci, Inc., so that he could identify for them the jewelry allegedly stolen. He participated as requested. They searched systematically and found many items still in their original Jeremiah, Inc., containers. Whenever allegedly stolen items were discovered grouped on display cards with nonstolen items, the entire card was seized by the police. In all, hundreds of thousands of earrings amounting to about 5 percent of the Ricci, Inc., inventory were seized.

During testimony, Andrew Jeremiah utilized several photographs and specimens of powdered colored glass to assist the jury in better understanding his company's unique enameling process. Defense counsel objected to the introduction of these photographs and the powdered glass on the ground that the Super.R.Crim.P. 16 discovery order had been violated. The court overruled the objection on the ground that admission of these materials was not violative of that rule. The state advised the court that it had no objection to a continuance so that defense counsel could examine the materials. No continuance was requested, however. The defendant also objected to the testimony of Peter Evans, an owner of Evans Findings Co., Inc., on the ground that he was not listed by the state as a witness. That objection was also overruled.

In lengthy jury instructions, the court explained the four elements of the offense that the state had to prove beyond a reasonable doubt. One portion of the instructions--knowledge sufficient to satisfy a reasonable person that the property was stolen--was given after defendant had made an objection to the initial charge. Following conviction and the denial of a motion for new trial, defendant filed this appeal.

The first issue we consider is whether the trial justice erred in finding probable cause for the issuance of a search warrant. The defendant claims there was insufficient information in the affidavit to allow the issuing judge to determine independently whether the informant was credible or his information reliable. This will be our first opportunity to consider the issue of probable cause for a search warrant since the United States Supreme Court's recent decision in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), in which the Supreme Court purported to abandon the Aguilar-Spinelli test for probable cause.

The Fourth Amendment to the United States Constitution proscribes the issuance of a search warrant except upon probable cause, supported by oath or affirmation and particularly including a description of the place to be searched and the persons or things to be seized. These proscriptions are enforceable against the States through the Fourteenth Amendment. Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726, 738 (1963).

Until recently, the applicable principles controlling courts, including ours, ² in instances in which the police seek a search warrant based on information supplied to them by a confidential informer, were those promulgated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), as interpreted in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). ³

The United States Supreme Court, in Gates, abandoned the "two-pronged test" of Aguilar and Spinelli and in its place reaffirmed "the totality of the circumstances analysis that traditionally has informed probable cause determinations." ⁴ Illinois v. Gates, 462 U.S. ----, ----, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983). The Court's concern was that probable-cause determinations had become "rigid" and that each prong of the test had assumed an "entirely independent character," Id. at ----, n. 5, 103 S.Ct. at 2327-28 n. 5, 76 L.Ed.2d at 543, n. 5, resulting in an "excessively technical dissection of informants' tips." ⁵ Id. at ----, 103 S.Ct. at 2330, 76 L.Ed.2d at 546. Instead, the Court believes a totality-of-the-circumstances approach to probable-cause determinations "which permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip" better serves the purposes of the Fourth Amendment. Id.

The Court was quick to point out, however, that an informant's veracity, reliability, and basis of knowledge remain "highly relevant." Id. at ----, 103 S.Ct. at 2327, 76 L.Ed.2d at 542. In the Court's opinion, however, these factors "should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is 'probable cause' to believe that contraband or evidence is located in a particular place." Id. at ----, 103 S.Ct. at 2328, 76 L.Ed.2d at 544. According to this totality-of-the-circumstances approach, "a deficiency in one [prong] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other [prong] or by some other indicia of reliability." Id. at ----, 103 S.Ct. at 2329, 76 L.Ed.2d at 545.

In applying the totality-of-the-circumstances approach,

"[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for * * * conclud[ing]' that probable cause existed." Id. at ----, 103 S.Ct. at 2332, 76 L.Ed.2d at 548.

Although Illinois v. Gates apparently relaxes the criteria for probable-cause determinations because of the broad meaning that can be given to the "totality of the circumstances" approach, it does not seem to us that it has abandoned the "two-pronged test" of Aguilar and Spinelli. Veracity, reliability, and basis of knowledge all remain "highly relevant" factors, "closely intertwined [with] * * * the commonsense, practical question whether there is 'probable cause' * * *." Id. at ----, 103 S.Ct. 2327-28, 76 L.Ed.2d at 542-43. The Gates Court itself is of the opinion that Aguilar "suggests that the two prongs were intended simply as guides to a magistrate's determination of probable cause, not as inflexible, independent requirements applicable in every case." Gates, 462 U.S. at ----, n. 6, 103 S.Ct. at 2328 n. 6, 76 L.Ed.2d at 543, n. 6. The Court in Aguilar required only that the magistrate be informed of "some of the underlying circumstances." Aguilar, 378 U.S. at 114, 84 S.Ct. at 1514, 12 L.Ed.2d at 729. And Spinelli suggests that a tip inadequate under Aguilar can be bolstered by independent corroboration. Spinelli, 393 U.S. at 415, 89 S.Ct. at 588, 21 L.Ed.2d at 643.

Our reading of Gates leads us to the conclusion that only the rigid application of the "two-pronged test" has been abandoned, not the test itself. Such rigidity runs afoul of what the Supreme Court intended when it decided those cases. This court has continually adhered to the original meaning of Aguilar and Spinelli. Our application of the test has never been rigid, but rather has been flexible and based upon " 'factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' " Illinois v. Gates, 462 U.S....