State v. JosephState v. Joseph
- Reporters:
- , ,
- Before:
- Kelleher
This is thе state’s appeal from a judgment entered in the Superior Court granting the defendant’s motions to suppress evidence and dismiss two indictments which charged him with different possessory offenses — possession of counterfeit money and possession of four stolen radios. The pivotal issue is thе sufficiency of two nearly identical affidavits submitted by the Westerly police to a judge of the District Court who then issued two search warrants. One warrant authorized the search of the defendant’s automobile, and the other warrant permitted a search of a two-story dwelling that was owned аnd occupied by the defendant’s parents. :
The record presented to us is, to say the least, scanty. It consists of a transcript of the trial justice’s decision and the warrants and supporting affidavits. Following oral argument before us, counsel stipulated that (1) the counterfeit money was seized in the home, and (2) the radios were removed from defendant’s automobile.
The affidavits were executed by the acting chief of police. Each affidavit alleged that information supplied to the chief by a
The trial justice who heard the suppressiоn motion faulted the affidavits because of the chief’s failure to establish the reliability of his source of information. In his affidavit, the chief had described his informant as one “* * * who has been reliable in the past, and has led to the arrest and convictions of persons in the past.” In his decision, thе trial justice stated that the lack of specifics as to what particular convictions were attributable to the informant’s past efforts offered no basis upon which the requisite reliability of the informant could be established. We cannot endorse this view. However, even though we fault the trial justice’s reasoning, we find that the suppression of the evidence relating to the counterfeit charge was correct.
The applicable principles which control our decision here have been articulated by this court in a number of cases including State v. Soroka, 112 R. I. 392, 311 A.2d 45 (1973); State v. Nerney, 110 R. I. 364, 292 A.2d 882 (1972); State v. Cannon, 110 R. I. 246, 292 A.2d 219 (1972); State v. Roach, 106 R. I. 280, 259 A.2d 119 (1969), where we havе recognized that in instances in which the police seek a search warrant on information supplied to them by a confidential informer the standards to be supplied are those promulgated in Aguilar v. Texas, 378 U. S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), as explicated in Spinelli v. United States, 393 U. S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). In essence, the Aguilar rule requires a showing of “some of the underlying circumstances” relating both to the informer’s сonclusion that the law is being violated, or that the objects to be sought may be found where he claims they are located, and to the affiant’s conclusion that his informer or the information he supplies is trustworthy.
In considering whether the affidavits submitted to the District Court judge sufficiently established the reliаbility of the confidential informant, we are aware that the affidavits must be tested in a commonsense and realistic fashion. The constitutional interdiction is not against all searches and seizures, but only those that are unreasonable. Cady v. Dombrowski, 413 U. S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); United States v. Harris, 403 U. S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); United States v. Ventresca, 380 U. S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).
In State v. Cannon, supra, we rejected a defense contention that an unidentified informer’s trustworthiness could be verified only by the affiant’s recitation of the convictions that had resulted from the informer’s prior disclosures. An arrest, said the defense in Cannon, was a mere accusation which, unless followed by a conviction, did nothing to establish the requisite reliability. Not so, we said, and then pointed out that there can be a variety of factors having no relevance to the informer’s veracity and reliability that may prohibit the factfinder from reaching a guilty verdict.
As we address ourselves to the particular issue of a lack of specifics as to prior convictions, we are reminded by our consideration of the plethora of litigation
Among the cases discussed in Kraft are four that were cited in State v. Cannon, supra, at 253 n.10, 292 A.2d at 223 n.10. They are United States v. Buonomo, 441 F.2d 922 (7th Cir. 1971) ; 1 United States v. Shipstead, 433 F.2d 368 (9th Cir. 1970) ; 2 United States v. Kidd, 407 F.2d 1316 (6th Cir. 1969) ; 3 United States v. Rich, 407 F.2d 934 (6th Cir. 1969). 4 The validity of the warrants in eaсh of those four cases was upheld. In Buonomo, the defendant made the same objection being made here — a lack of detail as to the informer’s reliability. However, the federal court noted that the informant told of how on the day before the affidavit was executed he had observеd in the defendant’s home a large quantity of counterfeit motor vehicle title certificates which the defendant had offered to sell to him. Again in Kidd, the informant told the affiant he had seen the contraband (“moonshine” whiskey) in the defendant’s possession on the day the affidavit was executed. It was pointed out in Kidd that the Court in Spinelli emphasized that the reliability facet of the Aguilar test could have been satisfied by a declaration by the affiant of his informer’s reliability.
We would also cite State v. Perry, 59 N. J. 383, 283 A.2d 330 (1971), and Warren v. Commonwealth, 214 Va. 600, 202 S.E.2d 885 (1974). The New Jersey Supreme Court ruled that an affiant’s statement that he had said that his informer “has in the past given reliable information leading to arrests” established the informer’s reliability. Virginia’s highest сourt affirmed an affidavit in which an assistant prosecutor had stated that the informer had “on numerous occasions” supplied information which had “proven to be correct.”
This court in State v. Nerney, supra, emphasized that in the evaluation of affidavits submitted to a magistrate who may issue a search warrant, the issuе is probable cause, not guilt, and the evaluator should keep in mind that the affi davit in most instances has been drafted by one who has not been schooled in the niceties of the law.
Here, we have an affidavit which contains the informant’s personal observations and knowledge of аn incident that occurred within hours of the execution of the affidavit. The chief’s description of the informer’s past performances was not a bald conclusionary statement. It was an explanation given under oath and it told the District Court judge that the chief’s conclusion was based оn the fact that the informer’s prior tips had led to arrests and convictions.
While some detailing of an informant’s track record might be desirable, it is not a
As to those who are concerned with the possibility that the informer is a product of an overzeaffius officer’s imagination, we would refer to our recent ruling in State v. Cofone, 112 R. I. 760, 315 A.2d 752 (1974). There, we emphasized that when an affidavit is presented to an issuing magistrate, such as a District Court judge, his concern is not with the truth of the hearsay but with- whether the -affiant is telling the truth. If he is doubtful on that score, or if he finds that an affiant has exhibited bad faith or made a misrepresentation, the magistrate may require that the in formant be identified or produced, or he may refuse to issue the warrant.
. Having had our say as to the informer’s reliability, we turn now to the actual searches — first the house and then on to the automobile.
The search of the dwelling presents a somewhat familiar picture. Even though the chief reports in his affidavit that liis men had placed the home under surveillance, the affidavit tells us nothing of what they observed — if indeed anything occurred. There is a complete absence of any nexus between the home and the counterfeits. The officers on watch apparently saw no one take the box and its contents from the Mustang and bring it into the Josephs’ home. The informer is of no help: He placed the contraband in the vehicle in the early afternoon. There is a lack of any factual data that would give rise to a probability of a transfer of the bogus cash from the vehicle to the home.
Man’s home is still regarded as his castle and any intrusion on this domain must be based on something more than suspicion. We cannot assume probable cause by what was uncovered in the search. Rather, probable cause must be found within the four corners of the chief’s affidavit. There is a gap hеre which is similar to the one that was discussed in State v. Roach, supra. Roach was charged with the illegal possession of lottery tickets. The informant had told a state police dectective that earlier in that week he had purchased tickets from Roach and he had seen the defendant with more tiсkets that day and he thought that Roach and a bookie were going to an area near a local racetrack. During a 2-hour surveillance, the detective saw Roach do nothing more than move up to a fence where he could observe the running of the third race. We fаulted the trooper’s reliance on the information he received because his source had failed to tell the officer that Roach would be carrying the contraband while he was in the vicinity of the track.
So, too, in the case before us, there is nothing from the report madе by the informant that would support a reasonable inference that what the officers were looking for was in the Josephs’ home. Consequently, here, as in Roach, we find a lack of the information requisite to establish the necessary probable cause to enter and search the home.
The discovery of the radios poses a different problem. The warrants did not authorize a search for them.
We start with the proposition first articulated many years ago by the Supreme Court that the fourth-amendment
The state’s appeal is sustained insofar as it relates to the stolen goods indictment, and is deniеd as it concerns the counterfeit money indictment.
Notes
The informant was described as having supplied reliable information in the past.
The affiant reported that his informer had “* * * supplied law enforcement officers with information over the last five or six months which has resulted in three arrests.”
The infоrmer was referred to as a confidential and reliable man who had “proved to be reliable on many occasions in the immediate past.”
The affiant pictured his informer as one “* * * who has on repeated occasions in the past furnished reliable and credible information * * *.”