State v. Singleton

• Decision Date: 01 June 1993
• Docket Number: No. 920053-CA,920053-CA
• Citation: 854 P.2d 1017
• Parties: STATE of Utah, Plaintiff and Appellee, v. Gaylynn SINGLETON, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1017

854 P.2d 1017

STATE of Utah, Plaintiff and Appellee, v. Gaylynn SINGLETON, Defendant and Appellant.

No. 920053-CA.

Court of Appeals of Utah.

June 1, 1993.

Joan C. Watt and Richard G. Uday, Salt Lake City, for defendant and appellant.

Jan Graham and Marian Decker, Salt Lake City, for plaintiff and appellee.

Before JACKSON, RUSSON and BILLINGS, JJ.

OPINION

BILLINGS, Presiding Judge:

Defendant Gaylynn Singleton appeals her conviction for possession of a controlled substance, a third degree felony, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (Supp.1992). She argues the warrant on which the search of her residence was based was not supported by probable cause, and thus the trial court erred by failing to suppress evidence obtained during the search of her home. We affirm.

FACTS

On March 25, 1991, a magistrate issued a daytime search warrant based on an affidavit alleging defendant was in the business of distributing controlled substances for profit. The warrant authorized a search for drugs, packaging material, drug paraphernalia, currency, items relating to travel between Salt Lake City and South America, and records of narcotics sales. Officers executed the search warrant on March 27, 1991. They seized five-sixteenths of an ounce of cocaine divided into five separate packages, one ounce of marijuana divided into eight separate packages, and assorted packaging material.

Detective Jerry Rigby of the Salt Lake County Sheriff's Office executed the affidavit to support the search warrant. ¹ The affidavit included information gathered by Detective Rigby over an eight month period, from August 1990 to March 25, 1991. Detective Rigby obtained information from four separate confidential informants, fellow officers, court records, the National Crime Information Center, the Drug Enforcement Agency (DEA), the Utah Department of Investigations, and U.S. West Communications.

On July 7, 1990, the first confidential informant told an officer assisting Detective Rigby in the investigation of defendant that defendant was involved with the sale of controlled substances. Informant One claimed defendant was in partnership with Steven Perry and the two had taken over the cocaine business of Milton Singleton, defendant's husband. ² Informant One further related that defendant traveled to Bolivia and stayed with a man named Ronnie Iriarte, a purported international drug smuggler who is wanted by the FBI for distribution of cocaine. Informant One also stated defendant made frequent telephone calls to Iriarte in Bolivia.

Detective Rigby received additional information from two other confidential informants through Special Agent David Paull of the DEA, who personally received the information during July and August of 1990. Both Informant Two and Informant Three claimed defendant was involved in the distribution of cocaine and that she used a pager as part of her method of operation. Informant Two personally observed defendant receive pages on her pager and return at least one phone call relating to the distribution of cocaine. Informant Two also provided the number of defendant's pager.

On February 14, 1991, Detective Rigby received information from a fourth confidential informant, after that person had entered into a plea bargain in an unrelated drug case. Informant Four purchased cocaine directly from defendant in October, 1990 at defendant's residence in West Valley City, Utah. Informant Four also stated she purchased cocaine from defendant at other locations and always contacted defendant through a pager.

Detective Rigby verified the information obtained from the four confidential informants through: (1) periodic surveillance of defendant's residence where Steven Perry was seen as recently as February 26, 1991; (2) interception of electronic communications to defendant's pager number, whereby Detective Rigby verified that six people calling defendant's pager had a criminal history, four having been previously arrested for drug violations; and, (3) corroborating information regarding defendant and her drug ties to South America by speaking with other officers who were conducting an independent investigation of defendant and Steven Perry for drug violations from January through August of 1990.

Prior to trial, defendant filed a motion to suppress the evidence seized from her home during the warrant-supported search. The trial court denied defendant's motion. ³ Defendant explicitly reserved the right to appeal the trial court's ruling on the motion to suppress. See State v. Sery, 758 P.2d 935, 939 (Utah App.1988).

On December 9, 1991, defendant entered a conditional plea of guilty to a reduced charge of one count of possession of a controlled substance, a third degree felony. Defendant was sentenced to zero to five years in the Utah State Prison and fined $200. Defendant's prison term was stayed pending completion of a thirty-six month term of probation.

On appeal, defendant argues the trial court erred by not suppressing the evidence obtained during the warrant-supported search of her home on March 27, 1991 because: (1) the affidavit was insufficient to establish probable cause under the Fourth Amendment to the United States Constitution, (2) the affidavit was insufficient to establish probable cause under article I, section 14 of the Utah Constitution, (3) the warrant cannot be saved by the "good faith exception" to the exclusionary rule because officers could not reasonably rely on it, and, (4) a good faith exception should not apply under the Utah Constitution. ⁴

STANDARD OF REVIEW

We do not "conduct a de novo review of the magistrate's probable cause determination," but defer to the magistrate's decision on whether a warrant is supported by probable cause. State v. Babbell, 770 P.2d 987, 991 (Utah 1989). See also State v. Thurman, 846 P.2d 1256, 1259-60 (Utah 1993). Accord Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331 (1983); Salt Lake City v. Trujillo, 854 P.2d 603, 606-07 (Utah App.1993); State v. Purser, 828 P.2d 515, 517 (Utah App.1992). Our review, however, is not a cursory one. We will invalidate a search pursuant to a warrant "if the magistrate, given the totality of the circumstances, lacked a 'substantial basis' for determining that probable cause existed." Thurman, 846 P.2d at 1260 (quoting Babbell, 770 P.2d at 991). Accord State v. White, 851 P.2d 1195, 1197-99 (Utah App.1993).

Defendant first argues the affidavit supporting the warrant was insufficient to establish probable cause under the Fourth Amendment to the United States Constitution. Specifically, defendant contends the affidavit failed to establish the veracity and reliability of the four confidential informants, lacked sufficient detail to demonstrate the basis of their information, and was based upon "stale" information.

The test for the sufficiency of an affidavit supporting a search warrant under the Fourth Amendment is set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In Gates, the Supreme Court expressly abandoned application of the previously used, hypertechnical, Aguilar- Spinelli "two-pronged test" ⁵ and embraced a "totality-of-the-circumstances test." Gates, 462 U.S. at 238, 103 S.Ct. at 2332.

The 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. (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)).

Utah has applied the totality-of-the-circumstances analysis when determining whether an affidavit sets forth facts sufficient to establish probable cause under the Fourth Amendment. See, e.g., Thurman, 846 P.2d at 1259-62; State v. Hansen, 732 P.2d 127, 130-31 (Utah 1987); White, 851 P.2d at 1197-1200.

Utah courts, however, have used the Aguilar- Spinelli factors as guides in applying the totality-of-the-circumstances test. "[A]n informant's 'reliability' and 'basis of knowledge' are but two relevant considerations, among others, in determining the existence of probable cause under 'a totality-of-the circumstances.' " Hansen, 732 P.2d at 130 (citing Gates, 462 U.S. at 231-32, 235-36, 103 S.Ct. at 2328-31). See also State v. Purser, 828 P.2d 515, 517 (Utah App.1992). The Aguilar- Spinelli guidelines are not applied as "strict, independent requirements to be 'rigidly exacted' in every case. A weakness in one or the other is not fatal to the warrant so long as in the totality there is substantial basis to find probable cause." Hansen, 732 P.2d at 130 (citing Gates, 462 U.S. at 238, 103 S.Ct. at 2332). Thus, the significance of each factor involved in a finding of probable cause differs on a case-by-case basis. See id.; Purser, 828 P.2d at 517.

A search warrant may be issued when, under the totality-of-the-circumstances, the information given by multiple confidential informants is sufficient to establish probable cause. This is true even if an individual informant's information would not establish probable cause if considered separately. See State v. Bailey, 675 P.2d 1203, 1205-06 (Utah 1984); Purser, 828 P.2d at 517.

When viewed under the totality-of-the-circumstances, we conclude the affidavit contained sufficient information for the magistrate to conclude the informants were reliable and their basis of information was sufficient. At the core of the magistrate's finding of probable cause is the testimony of Informant Four that she personally purchased drugs from defendant at her home and contacted defendant through a pager. Defendant challenges the veracity and reliability of...