State v. Vandeveer, 1
| Decision Date | 25 March 1975 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 533 P.2d 91,23 Ariz.App. 331 |
| Parties | STATE of Arizona, Appellee, v. Michael T. VANDEVEER, Appellant. 282. |
| Court | Arizona Court of Appeals |
The questions dispositive of this case on appeal are whether the trial court erred in denying the appellant's motion to suppress evidence found in a search of his apartment and in the trunk of the car in which he was a passenger.
The facts necessary to a determination of these questions on appeal are as follows. On February 13, 1969, a complaint was filed against the appellant--defendant and two co-defendants charging them with possession of marijuana and possession of marijuana for sale. One of the co-defendants, who had been granted immunity by the state, testified that he went to the defendant's apartment on the evening of the arrest. At the apartment the defendant showed him 55 packages which the defendant said contained marijuana and these packages were then carried to the trunk of this co-defendant's car. The defendant and this co-defendant then rode around Phoenix for awhile before stopping to sell some of the marijuana. The two men then returned to defendant's apartment where they were met by the police. The police had already searched defendant's apartment pursuant to a search warrant they had previously obtained and then searched this co-defendant's car before placing these two men under arrest. Following a jury trial, the defendant was found guilty of possession of marijuana and possession of marijuana for sale. He originally filed an appeal in propria persona from the conviction of possession of marijuana for sale in 1969. This appeal was dismissed as he failed to file an opening brief but a motion was granted reinstating his appeal in January, 1974.
The defendant argues that all the items seized in the apartment should have been suppressed as they were obtained pursuant to an invalid search warrant. He contends that there was no probable cause to support the issuance of the search warrant as there was no showing as to the informant's reliability or as to the underlying circumstances from which the informant reached his conclusions. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
The search warrant was issued by the magistrate based on the following written affidavit:
As this case arose before the 1970 amendment to A.R.S. § 13--1444 requiring that any oral testimony taken by the magistrate be recorded, transcribed or placed in written form to be signed by the testifying officer, both the written affidavit and the sworn oral testimony taken by the magistrate may be the basis for the issuance of a search warrant. State v. Boyer, 106 Ariz. 32, 33, 470 P.2d 439, 440 (1970).
Officer Dedman, an affiant on the affidavit, testified at the motion to suppress that he was placed under oath by the magistrate and provided information not on the affidavit. He told the magistrate that the informant had recently been used in two felony arrests and that many of the details given by the informant had been verified and found to be true. He also told the magistrate that the informant had seen marijuana in the apartment on the day the warrant was issued; the officer did not have direct information on this fact but the informant had contacted his captain to this effect. The magistrate who issued the warrant testified that he had no independent recollection of the specifics of the conversation with Officer Dedman, but did recall being told that the apartment to be searched and the defendant had been under surveillance for a considerable length of time. He recalled being told that the officers had seen what they thought to be marijuana being transferred in and about the apartment on the day the warrant was issued. He testified that he was not told that the informant had been in the apartment. Officer Robinson, the other affiant on the affidavit, could not remember what was said to the magistrate at the time the warrant was issued.
The affidavit, together with the oral testimony which was not merely a reiteration of the information supplied on the face of the affidavit, provided the magistrate with adequate information to make an independent determination of the informant's credibility and the reliability of his information.
The informant's credibility is not merely presumed, as he had previously provided information resulting in two felony arrests, and one of the affiants had verified quite a bit of the information given him in this investigation. The informant's reliability is further enhanced as he had seen the marijuana on the premises the day the warrant was issued. State v. Ramos,11 Ariz.App. 196, 199, 463 P.2d 91, 94 (1970).
The reliability of the information is also supported by the affidavit and the oral sworn testimony. The magistrate was provided with sufficient detail to know that the informant was relying on more than casual rumor in obtaining his information. Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637, 644 (1969). Not only was there sufficient detail in the information provided but there is evidence that the informant acquired much of the information as an eyewitness. State v. Ramos, Supra, cf. State v. Byers, 16 Ariz.App. 3, 6, 490 P.2d 580, 583 (1971). While there was a conflict in the testimony at the preliminary hearing over whether the magistrate had been told that the informant had seen the marijuana at the apartment on the day the warrant was issued, the trial judge who heard and evaluated this evidence denied the motion to suppress. We will not override his findings as there was no clear abuse of discretion. State v. Boyer, 106 Ariz. 32, 34, 470 P.2d 439, 441 (1970).
There is a further attack on the warrant as the allegation made in the...
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