Tosh v. State, F-85-393

• Decision Date: 21 April 1987
• Docket Number: No. F-85-393,F-85-393
• Citation: 736 P.2d 527
• Parties: Harry B. TOSH, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 527

736 P.2d 527

Harry B. TOSH, Appellant, v. STATE of Oklahoma, Appellee.

No. F-85-393.

Court of Criminal Appeals of Oklahoma.

April 21, 1987.

Hershel L. Franklin, Norman, for appellant.

Michael C. Turpen, Atty. Gen., P. Kay Floyd, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

The appellant, Harry B. Tosh, was convicted of the crime of Possession of a Controlled Dangerous Substance with Intent to Distribute, three (3) counts, in the District Court of Beckham County in Case No. CRF-83-146 and was sentenced to seven (7) years, one (1) year, and seven (7) years imprisonment, respectively, the sentences to run concurrently, and he appeals.

On November 11, 1983, Detective Ken Barnes was approached by a confidential informant who had witnessed a drug sale at appellant's home on November 2, 1983. A search warrant was obtained on November 30, 1983, and on December 7, 1983, Detective Barnes and another officer went to appellant's home. When they arrived at appellant's house, they found appellant in bed, and after waking him, Detective Barnes informed him that they had a search warrant. Appellant dressed and went into the living room where he was read the search warrant and the Miranda warning. Detective Barnes then searched his bedroom and discovered several baggies of marijuana and a locked metal box behind appellant's bed containing a "photo book" with pages holding labeled, controlled substances. Subsequently, appellant was arrested.

At trial, appellant presented no witnesses and did not take the witness stand.

For his first assignment of error appellant alleges that the trial court erred in finding him guilty of Possession with Intent to Distribute. He argues that the judgment and sentence form for all three counts of "Unlawful Possession of Controlled Drug with Intent to Distribute" is a scrivener's error and should read "Unlawful Possession of Controlled Drug." This argument is patently frivolous and is not supported by any authority; therefore, this Court will not consider this assignment. Ward v. State, 628 P.2d 376 (Okl.Cr.1981).

In his second assignment of error appellant contends that the affidavit ¹ was insufficient to give the issuing magistrate enough information to find that there was probable cause to believe that contraband would be located at the residence described on the warrant.

The United States Supreme Court, in Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983), held that:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of person supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found at 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.

In Gates, the Court also stated that, ... "after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's determination of probable cause should be paid great deterence by reviewing courts." 462 U.S. at 236, 103 S.Ct. at 2331.

Applying of these principles to the affidavit, we find that the affidavit in the instant case was sufficient to give the magistrate a substantial basis for concluding that probable cause existed. See Corley v. State, 713 P.2d 12 (Okl.Cr.1985). This assignment of error is without merit.

Appellant next argues that the warrant in question and the execution thereof was a general warrant and exploratory search in violation of the Fourth Amendment to the United States Constitution. The search warrant states in pertinent part, "Marijuana, a controlled substance together with other fruits, instrumentalities and evidence of the crime." While it is true that a search warrant must describe with specificity and particularity the place to be searched and the items to be seized, Caffey v. State, 661 P.2d 897 (Okl.Cr.1983), we are of the opinion that the above description of marijuana is as specific and particular as possible. Accordingly, this assignment is groundless.

In another assignment of error appellant complains that the search warrant and affidavit in support thereof was so stale at the time of its execution that a person of commonsense could not have reached the conclusion that there was probable cause to believe that contraband sought in the warrant would still be located at the address described in the warrant. The record shows that the illegal transaction occurred on November 2, 1983; that the search warrant was obtained on November 30, 1983; and that the warrant was executed on December 7, 1983. In the present case, the information in the affidavit showed appellant had sold marijuana only one (1) month before the warrant was executed, and the affidavit and search warrant sought evidence of ongoing criminal activity. See United States v. Foster, 711 F.2d 871 (9th Cir.1983) cert. denied, 465 U.S. 1103, 104 S.Ct. 1602, 80 L.Ed.2d 132 (1985); see generally, Hines v. State, 684 P.2d 1202 (Okl.Cr.1984). Since the warrant sought evidence of an ongoing criminal transaction, possession with intent to distribute, we are of the opinion that the one (1) month delay did not render the information contained in the affidavits so stale as to be unreliable. We find no error.

In his third assignment of error, appellant contends that the trial court erred in refusing to grant a mistrial as a result of an alleged evidentiary harpoon elicited during direct examination of Officer Barnes.

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