Strode v. State, 45615

• Citation: 231 So.2d 779
• Decision Date: 12 January 1970
• Docket Number: No. 45615,45615
• Parties: Willie Lee STRODE v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 779

231 So.2d 779

Willie Lee STRODE v. STATE of Mississippi.

No. 45615.

Supreme Court of Mississippi.

Jan. 12, 1970.

Rehearing Denied Feb. 16, 1970.

Karl W. Kepper, Robert T. Jackson, Gray & Montague, Kepper & Kepper, Hattiesburg, for appellant.

A. F. Summer, Atty, Gen., by Guy N. Rogers, Asst. Atty. Gen., and Wade H. Creekmore, Jr., and James H. Creekmore, Special Asst. Attys. Gen., Jackson, for appellee.

ETHRIDGE, Chief Justice:

Willie Lee Strode, appellant, was convicted of burglary in the Circuit Court of Forrest County and sentenced to seven years in the state penitentiary. The conviction rests chiefly upon incriminating physical evidence, part of which was found on Strode's person in the course of a search incident to his arrest without warrant, and the remainder was found in his motel room in the course of a search pursuant to a search warrant. The ultimate issue is whether there was probable cause constitutionally sufficient to support the validity of these productive searches. Specifically, this involves two issues: (1) Was the informer's tip reasonably trustworthy Ben Shemper & Sons, Ltd., a partnership in Hattiesburg dealing in scrap metal, was burglarized on January 27 or 28, 1968. A ladies' Timex wristwatch and $360 in cash were stolen. $50 of the currency taken was wrapped in a money band bearing the stamp of the First National Bank of Hattiesburg. The intruders gained access to the premises by cutting through a chain link fence surrounding the Shemper property, and to the valuables by 'peeling' the firm's safe. Officers investigating the crime on the morning of January 29 found in the soft ground below the severed fence shoe impressions, which they preserved in plaster-of-paris casts. They also collected and preserved specimens of paint and 'fire clay' from the 'peeled' safe.

                so as to provide probable cause for the arrest without warrant and search incident thereto, and the search of the motel room with warrant?  (2) Was the circuit court justified in refusing to require the police officer to disclose the identity of the informer?   We answer these questions in the affirmative, and affirm the conviction
                

Appellant and a companion were arrested in New Orleans on January 29, 1968, on suspicion of armed robbery of a New Orleans bank, by detectives of the New Orleans Police Department, acting on an informer's tip. Shortly after the arrest, still acting on the basis of the informer's tip, and, in addition, certain collateral information, the New Orleans officers applied for and were granted a warrant authorizing a search of appellant's residence, a New Orleans motel room. The officers conducted the search and in its course seized certain articles specified in the warrant. Appellant's arrest, the search incidental to it, and the subsequent search under warrant, all conducted by Louisiana officers, were not related in their inception to any crime committed in Mississippi.

Evidence turned up during the two New Orleans searches did, however, connect appellant with the Shemper burglary. The search incident to Strode's arrest found him in possession of a money band impressed with the stamp of the First National Bank of Hattiesburg, and the search under warrant produced several articles of clothing bearing paint and fire clay particles, which the FBI Crime Laboratory found to be identical with those collected by the Hattiesburg Police Department from the 'peeled' Shemper safe. Furthermore, one of appellant's shoes, which he voluntarily handed over to the New Orleans officers, was ascertained by an expert of the New Orleans Police Crime Laboratory to be identical with the one which left its imprint beneath Shemper's severed fence. All of this evidence was received against appellant at trial over his objection that the searches which produced the evidence were void under the Fourth and Fourteenth Amendments for want of probable cause.

On December 14, 1967, Whitney National Bank, 3740 Elysian Fields Avenue in New Orleans, was robbed of $40,000 by two armed Negro gunmen. On January 29, 1968, officers of the New Orleans Police Department investigating the crime received a report from an informer known to them, but whose identity they refused to divulge, that the robbery had been committed by the appellant and a companion named Willard Manuel. According to Detective Lanza, the informer had in the past provided information which had proved reliable and had led to the arrest and conviction of others engaged in the same type of activity. The informer's report in this case was very detailed, bespeaking first-hand knowledge of appellant, his companion, and their criminal modus operandi: The robbers were appellant, Strode, and Willard Manuel, both Negro males from Chicago, Illinois, who currently were residing in Room 134 of the Tamanaca Downtown Motel in New Orleans. In that room, said the informer, officers would find evidence of the robbery, including hands guns, blue steel, masks, dark clothing, stolen currency, heroin, marijuana, and radio equipment capable of monitoring New Orleans police radio frequencies.

The informer further said that most of the money stolen from the Whitney National Bank was stored in three safety deposit boxes in New Orleans-specifically Box No. 220 and Box No. 454 of the International City Bank 921 St. Charles Avenue, and Box No. 539 of the Whitney National Bank, 228 St. Charles Avenue. Finally, the informer told the officers that the robbers could be apprehended outside the International City Bank on January 29. On that day, outside the International City Bank, Strode and Manuel were in fact arrested while attempting to enter a car bearing Illinois license plates. In their possession were keys to the specified safety deposit boxes and a key to Room 134 of the Tamanaca Downtown Motel. Strode, as mentioned above, had in his pocket a money band stamped by the First National Bank of Hattiesburg.

Excerpts from the Louisiana application (or affidavit) for search warrant are quoted in an appendix to this opinion.

I.

Probable cause is a practical, nontechnical concept, based upon the conventional considerations of everyday life on which reasonable and prudent men, not legal technicians, act. It arises when the facts and circumstances within an officer's knowledge, or of which he has reasonably trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it. McCollum v. State, 197 So.2d 252 (Miss.1967); State v. Pebworth, 251 La. 1063, 208 So.2d 530 (1968); Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

There was probable cause to justify the officers in arresting appellant, and the evidence obtained thereby was admissible. The informer was known to the officers as a credible person. Before making the arrest they knew that a New Orleans bank had been robbed by Negro gunmen, and that Strode and Manuel, both from Chicago, from the robbery had been stored in the informer, who had in the past given reliable information to Detective Lanza. The informer had told the police that money from the robbery had been stored in two safety deposit boxes at one bank in New Orleans, and in another box in another bank; and that Strode and Manuel were living in a particular room in a specific downtown motel and items of the armed robbery were located in that room. The informer either knew or had arranged for Strode and Manuel to be outside the International City Bank at the time of the arrest. The officers had reason to believe that the informer was credible, since he had provided truthful tips in the past, and that the information was reliable, since the same was corroborated by the independent investigation of the officers. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); McCollum v. State, 197 So.2d 252 (Miss.1967); Bradshaw v. State, 192 So.2d 387 (Miss.1966).

Further, the officers had probable cause sufficient to support the application for the search warrant. Probable cause exists when a police officer has personal knowledge and reasonably trustworthy reports of facts which are sufficient to warrant a reasonably cautious man's believing an offense has been or is being committed. The application for search warrant complies fully with the requirements of decisions of the United States Supreme Court and of this Court. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); O'Bean v. State, 184 So.2d 635 (Miss.1966); See Note, The Informer's Tip as Probable Cause for Search or Arrest, 54 Cornell L.Rev. 958 (1969); Comment, Informer's Word as the Basis for Probable Cause in the Federal Courts, 53 Cal.L.Rev. 840 (1965).

The two-part test of Aguilar requires a magistrate to be informed of (1) some of the underlying circumstances from which the informer concluded that the defendant was the one guilty of the offense, and (2) some of the underlying circumstances from which the officer concluded that the informer was credible or his information reliable. In short, under the basis-of-knowledge test, the informer must have obtained his knowledge by personal observation or in some other dependable manner rather than through causal rumor. The second reliability test is an attempt to guard against tips provided by untruthful or unreliable informers, and suggests that an informer is credible if he has provided truthful tips in the past. Moreover, the information may be deemed reliable if corroborated by independent investigation Both tests require only that some of the underlying circumstances be sworn to. Furthermore, in Spinelli, the Court indicated that the basis-of-knowledge test could be fulfilled without a statement of the circumstances from which the...