State v. Sanders

• Decision Date: 09 April 1977
• Docket Number: No. 48484,48484
• Citation: 222 Kan. 189,563 P.2d 461
• Parties: STATE of Kansas, Appellee, v. Steven Charles SANDERS, Appellant.
• Court: Kansas Supreme Court

Page 461

563 P.2d 461

222 Kan. 189

STATE of Kansas, Appellee, v. Steven Charles SANDERS, Appellant.

No. 48484.

Supreme Court of Kansas.

April 9, 1977.

Syllabus by the Court

1. Before a search warrant may be validly issued there must be presented before the issuing magistrate sufficient facts to enable him to make an intelligent and independent determination that probable cause exists.

2. While an affidavit to support the issuance of a search warrant may be based on hearsay, there must be adequate affirmative allegations of the affiant's personal knowledge of the information provided, to provide a rational basis upon which the issuing magistrate can make a finding of probable cause.

3. It is generally held that in the absence of statutory authority to the contrary a party against whom a search warrant is directed may not dispute the matters alleged in the supporting affidavit or complaint. (Following State v. Wheeler, 215 Kan. 94, Syl. 4, 523 P.2d 722.)

John C. Humpage, of Topeka, argued the cause and was on the brief for the appellant.

Zygmunt Jarczyk, Asst. Dist. Atty., argued the cause, and Curt of T. Schneider, Atty. Gen., Nick A. Tomasic, Dist. Atty., and Dennis L. Harris, Asst. Dist. Atty., were on the brief for the appellee.

KAUL, Justice:

Defendant-appellant, Steven Charles Sanders, appeals from a conviction, in a trial to the court, of possession of Cannabis Sativa L. (marijuana) with the intent to sell in violation of K.S.A.1976 Supp. 65-4127b. The central issue involves the sufficiency of an affidavit upon which a search warrant was issued.

The search warrant in question was issued by the judge of division No. 6 of the Wyandotte district court on May 12, 1974. As a result of the execution of the search warrant quantities of narcotic drugs were seized at the residence of the defendant and a four count information was filed against him. Three counts were later dismissed. Prior to the scheduled date for a preliminary hearing, defendant filed, in the magistrate court, a motion to suppress the evidence seized in the execution of the warrant. After an evidentiary hearing before the magistrate, defendant's motion to suppress was denied, and thereupon defendant waived preliminary hearing and was bound over for trial to the district court.

In the district court, defendant filed a second pretrial motion to suppress the evidence on essentially the same grounds as alleged in his first motion. After a hearing before the district court, defendant's motion was again denied. Thereupon, the parties stipulated that a trial by jury would be waived, the state dismissed three counts of the information, and it was further stipulated and agreed that the case would be submitted to the district court upon a stipulation of facts which reads in pertinent part:

'THAT IT IS STIPULATED BY THE PARTIES hereto that the Defendant was an occupant of the premises at 35 South 15th Street (upstairs apartment), Kansas City, Kansas, on May 12, 1974.

'IT IS FURTHER STIPULATED AND AGREED BY THE PARTIES HERETO that the authorities gained entry to said premises on May 12, 1974, on the basis of a Search Warrant issued by the Honorable Cordell Meeks, Judge of the Wyandotte County District Court, Division No. 6, on May 12, 1974, said Search Warrant to be admitted into evidence herein and marked as Defendant's Exhibit 'A'. The Search Warrant issued on the basis of an Affidavit submitted by Jack Hartman, Special Agent, Attorney General's Office, on May 12, 1974, said Affidavit to be admitted into evidence and marked Defendant's Exhibit 'B'.

'THE PARTIES ADDITIONALLY STIPULATE that as a result of the execution of the Search Warrant herein, the Officers removed from the Defendant's premises '32 large packages' of green vegetation, same marked as the State's Exhibit 1, which has additionally been analyzed by a forensic chemist and the chemist's testimony would reflect that the green vegetation, the '32 large packages', possessed the properties of Cannabis Sativa L. and serves as the basis of the prosecution herein.

'THE PARTIES AGREE AND STIPULATE FURTHER that at the time of the State's offer of its Exhibit 1 into evidence herein, the Defendant would renew his objection to its introduction for the reasons more fully set out in the Defendant's Pretrial Motion to Suppress and Memorandum filed in support thereof, same being overruled by the Court on April 16, 1975.

'THE PARTIES FURTHER STIPULATE that the transcript of the Defendant's Preliminary Hearing, same being conducted by the Magistrate Court of Wyandotte County, Kansas, on July 18, 1974, for the sole purpose of presenting the issue of material false representation of fact, the issue being readily raised in the Defendant's Motion to Suppress, should be admitted into evidence for this purpose and marked Defendant's Exhibit 'C'.

'IT IS ADDITIONALLY AND FURTHER STIPULATED AND AGREED BY AND BETWEEN THE PARTIES HERETO that the Defendant had witnesses in attendance to the Court on April 3, 1975, to testify in relation to the issue of material false representation of fact that the Defendant raised in his Motion to Suppress; however, the Court was not inclined to hear any of the testimony from the witnesses on this issue.'

The court accepted the stipulation and admitted the evidence as stipulated and after considering the same found the defendant guilty as charged in the remaining count. After a motion for a new trial was denied, this appeal was perfected.

The points raised by defendant all go to the validity of the search warrant and the sufficiency of the supporting affidavit upon which the issuing judge relied. Defendant's argument on his first point goes to the sufficiency of the information contained in the affidavit for search warrant signed by Jack L. Hartman, a special agent for the attorney genral's office.

The affidavit reads in material part:

'The undersigned being duly sworn deposes and says:

'That he has reason to believe that on the premises known as 35 South 15th Street (upstairs apt.) in the Wyandotte District of Kansas, there is now being concealed certain property, namely Cannabis Sativa L. (commonly known as Marijuana) Cocaine, and Heroin which are illegal for possession by the Uniform Control Substance Act, K.S.A. 65-4105.

'And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: The assigning Officer swears and affirms that he has information from a confidential informant, who he has known for several months who has given him information in the past that has proven to be correct, that at the above address is secreted Heroin and Cocaine in one ounce lots and Marijuana in one pound lots. The confidential informant states that this is the residence of Steve Sanders, and he has purchased the above mentioned items within the last 24 hours.

'/s/ Jack L. Hartman

'Special Agent, A.G. Office.'

(Emphasis supplied.)

While the affidavit is not drawn with grammatical skill, it is sufficient on its face. It describes the premises and subject property of the search with certainty and identifies defendant as being the resident. The critical information is hearsay obtained from an unnamed informant; however, reliability is shown by the statement that previous information received proved to be correct and more importantly the affidavit states that informant had purchased illegal drugs within the previous 24-hour period. The last statement is an admission by the informant against his criminal interest.

Principles governing the determination whether a search warrant was validly issued, enunciated by the United States Supreme Court in leading cases on the subject, were analyzed and the precedents therein were adopted by this court in State v. Hart, 200 Kan. 153, 434 P.2d 999, wherein we said:

'We are mindful of what has been said in Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159; Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; and we recognize the precedent established by those cases. The import of those decisions, as we read them, is that before a search warrant may validly be issued, there must have been placed before the issuing magistrate sufficient facts to enable him to make an intelligent and independent determination that probable cause exists; that bald conclusions or mere affirmations of belief or suspicion are not enough; and while an affidavit may be based on hearsay, there must be sufficient affirmative allegations as to the affiant's personal knowledge or his knowledge concerning his informant, or as to the informant's personal knowledge of the things about which the informant spoke, to provide a rational basis upon which the magistrate can make a judicious determination of probable cause.' (p. 162, 434 P.2d p. 1007.)

The requirements for the issuance of a state search warrant based on hearsay, set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, were further considered by this court in State v. Hubbard, 215 Kan. 42, 523 P.2d 387. In Hubbard, as in the case at bar, the affidavit in support of the search warrant was based largely upon hearsay. We spoke of the Aguilar test as being twofold with respect to the supportive strength of hearsay evidence. The first test concerns the reliability of the informant's information and the second is the requirement that the magistrate be informed of the underlying circumstances which led an affiant to believe the informant to be credible. In the instant affidavit the affiant swears that the informant has supplied information in the past which has proven to be correct. This satisfies the reliability test. Affiant's statement that a purchase was made within the last 24 hours discloses underlying circumstances which would permit the affiant to believe the informant to be credible.

The recorded reflects, as will be discussed later, that all of...