STATE OF OREGON, Aрpellant, v. CYNTHIA PELSTER, Respondent. STATE OF OREGON, Appellant, v. DANIEL BOYER, Respondent.
98-1012; CA A102607 (Control); 98-1013; CA A102608
Court of Appeals of Oregon
February 28, 2001
21 P3d 106 | 172 Or App 596
Argued and submitted June 30, 2000, reversed and remanded February 28, 2001. (Cases Consolidated)
Irene G. Taylor, Deputy Public Defender, argued the cause for respondents. With her on the brief was David E. Groom, Public Defender.
Edmonds, Presiding Judge, and Deits, Chief Judge, and Armstrong, Judge.
EDMONDS, P. J.
Armstrong, J., dissenting.
Defendants are charged with two counts of criminal mistreatment and one count of hindering prosecution. The indictment charges, in the criminal mistreatment counts, that defendants left two of their daughters, who were aged 13 and 15,1 in their residence under circumstances that were likely to endanger the childrens’ health and welfare. In the hindering prosecution count, the indictment charges that defendants harbored and concealed Jose Juan Gonzales Cruz (Gonzales Cruz), who was allegedly guilty of sex crimes involving the 13-year-old daughter. Before the charges were filed, the police obtained a search warrant based on the affidavit that is the subject of this appeal. Defendants moved to suppress the evidence discovered as the result of the execution of the warrant, and the trial court granted the motion. The state appeals and argues that the trial court erred in holding that the officer‘s affidavit in support of the application for the warrant was insufficient to establish probable cause. We reverse.
We begin by considering several legal issues, because the resolution of those issues affects how we review the information in the affidavit. The first issue concerns the effect of the trial court‘s rulings on defendants’ motion to controvert the allegations in the affidavit.
In this case, the trial court held an extensive hearing on the motion to controvert, after which it found two different kinds of problems with the affidavit. First, it found that the officer‘s statements were incomplete or inaccurate in several respects. As an example, the affidavit stated that defendants were uncooperative during an attempt to check on the welfare of their 13-year-old daughter, but it did not mention that the attempted welfare check occurred at 2:30 a.m. Those inaccuracies do not affect the essential statements in the affidavit and have only a minor effect on our review of its sufficiency.2
When the court finds inaccuracies in an affidavit, it does not “correct” the affidavit by adding evidence to it. Rather, the judge‘s assessment of an affidavit after allowing a motion to controvert is one of subtraction, not addition. See State v. Harp, 299 Or 1, 9-10, 697 P2d 548 (1985). However, one way of subtracting from an affidavit is to use the additional information developed on the mоtion to controvert in order to weaken the force of the officer‘s statements in the affidavit. That is what the court did in this case, and it is consistent with Harp. See also State v. Sloan, 66 Or App 269, 273, 673 P2d 567 (1983), rev den 296 Or 536 (1984) (when additional facts would affect the weight of facts that are otherwise sufficient to show probable cause, reviewing court determines whether magistrate, as reasonable person, would have found probable cause if omitted facts had been known and correct inferences drawn). We review the sufficiency of the affidavit in light of the trial court‘s findings of inaccurate information.
Our purpose in reviewing the sufficiency of an affidavit supporting an application for a search warrant is to determine whether, on the basis of the information in the affidavit, a neutral and detached magistrate could have concluded that there was probable cause to believe that a search would discover the specified things in the specified places. State v. Young, 108 Or App 196, 200, 816 P2d 612 (1991), rev den 314 Or 392 (1992). In reviewing the issuance of a search warrant, we defer to the issuing magistrate‘s determination of probable cause and resolve doubtful cases by the preference for searches that are conducted under the authority of warrants rather than without prior judicial authorization. See State v. Prince, 93 Or App 106, 112, 760 P2d 1356, rev den 307 Or 246 (1988).
Because the information in the affidavit upon which we rely is provided by named informants and the police, the test to be applied is a “totality of the circumstances” test. Young, 108 Or App at 202-03.
“Probable cause” arises from information provided by named informants when a reasonable person, based on the totality of the circumstances, would believe that it is probable (more likely than not) that the objects of the search will be found at the location to be searched. State v. Anspach, 298 Or 375, 380, 692 P2d 602 (1984). In reviewing the sufficiency of an affidavit, we rely on the faсts as stated together with any reasonable inferences that can be drawn from them. State v. Poulson, 150 Or App 164, 170, 945 P2d 1084 (1997).
The dissent is critical of our analysis based on the above principles. It asserts that we have failed to evaluate the evidence from named informants “with the care that our case law requires,” 172 Or App at 613, and it apparently believes that the Aguilar/Spinelli rule, embodied in
As the state recognizes, the affidavit is poorly organized and confusing, and it contains a great deal of material that is at best tangentially relevant. We will state the facts described in the affidavit as the officer who sought the warrant stated them, correcting for the omissions and the inaccuracies that the trial court found after hearing the motion to controvert, and we will ignore mаterial irrelevant to our decision. For instance, some statements relate to the officer‘s training and experience.4 Most of the other material either
The search warrant in this case authorizes the search of the premises located at “171 Woodbine, Blue Ridge, located in Astoria, Oregon” for evidence of controlled substances and sexual activity between adults and juveniles. It also authorizes the search of Ricardo Jesus Aguilar Escorcia (Escorcia) and Gonzales Cruz, as “suspects,” and defendants’ daughters as “victims,” for medical evidence of sex crimes. The supporting facts in the affidavit pertinent to our inquiry begin with the recitation in paragraph 13 that Tomas Rodriguez Santos was arrested on December 5, 1997, after he was found in bed with a 13-year-old girl, C.G. According to paragraph 24, law enforcement officers “were directed to 171 Woodbine via specific information provided by [C.G.].” She told the officers that defendants’ 14-year-old daughter had recently given birth to a son fathered by Escorcia and that their 13-year-old daughter was “reported to be having an ongoing live-in sexual relationship with an adult male, age 24.”
On December 6, officers made contact with defendants at the residence at 171 Woodbine but were refused entrance. However, Daniel Boyer told the officers that Gonzales Cruz “does stay at [his] apartment at times.” By checking other public record sources, the officers ascertained that both Escorcia and Gonzales Cruz listed the Woodbine address as their residence. In addition, the affidavit recites, “this officer and Detective Reed saw Mr. Gonzales Cruz recently enter the residence at 171 Woodbine in the late afternoon. He did not use a key nor knock, and was unaccompanied by either the Boyer children or Mr. and Mrs. Boyer, the formаl renters of the apartment.”
Based on the foregoing information, probable cause exists to believe that Gonzales Cruz was living at defendants’ residence at the time of the issuance of the warrant. Daniel Boyer‘s and Huff-Olvera‘s statements, the officers’ observations and the public records search confirm that fact. The remaining issue is whether the affidavit establishes, bаsed on the information provided by the police and the named informants, that there is probable cause to believe that evidence could be found that defendants’ 13-year-old daughter was engaging in a sexual relationship with Gonzales Cruz, and that Gonzales Cruz was selling drugs from defendants’ residence.
The “veracity” of an informant refers to the extent to which the informant can be considered trustworthy. State v. Alvarez, 308 Or 143, 147, 776 P2d 1283 (1989). Veracity can be established in several ways including corroboration by the police, corroboration by another informant, the informant exposing himself to liability for filing a false report or by the
The affidavit states, in relevant part
“It was later learned through interviews with [the mother of C.G.], [M.R.], and [A.M.] that [Gonzales Cruz] was indeed present in the residence (171 Woodbine, Blue Ridge) when officers visited.
“*****
“According to interviews with those girls who are friends of [the 13-year-old daughter], and visit the residence, Mr. Gonzales Cruz does housework for the Boyers, watches the girls when the parents are away, runs errands using his and the parents’ vehicles and sleeps in both the living room or [the 13-year-old‘s] room.
“*****
“[Gonzalеs Cruz] is identified by [C.G.], [A.M.], [J.M.], [M.R.], [J.McP.], and [Huff-Olvera] as the adult male presently having a sexual relationship with [defendant‘s 13-year-old daughter].”
The above informants are named informants, and their information is corroborated in part by the police investigation as well by the fact that each of the informants gave identical information to the police. For the reasons previously mentioned, those factors weigh in favor of probable cause. As to the veracity of Huff-Olvera, her statements regarding her drug purchase are statements against her penal interest, a factor that weighs in favor of probable cause. State v. Carlile, 290 Or 161, 167, 619 P2d 1280 (1980). Additionally, her credibility and the credibility of the other informants is strengthened by the fact that Daniel Boyer admitted to the police that Gonzales Cruz resided at his apartment.
This case is similar in one respect to State v. Payne, 150 Or App 469, 946 P2d 353 (1997), rev den 326 Or 390 (1998), in which the warrant was issued on the basis of information provided by a named informant who revealed to the police that he had stolen marijuana from the defendant‘s shed. We noted that police corroboration of details from an
We next examine the basis of the knowledge of each informant. The information that Huff-Olvera gave to the police about Gonzales Cruz‘s sale of drugs at 171 Woodbine is based on her presence and participation in the transaction at the residence. It is thus inferable that her information regarding Gonzales Cruz‘s relationship with defendants’ daughter was acquired in the course of her contacts with Gonzales Cruz or a member of defendants’ household. As to the means by which the other named informants’ information was acquired, the affidavit contains no express statement by any of the minor girls as to how they learned of Gonzales Cruz‘s sexual relationship with defendants’ daughter. However, there is no statutory оr constitutional requirement that the basis of a named informant‘s knowledge be set forth expressly in the affidavit.
A comparison of the facts in this case with the facts in State v. Villagran, 294 Or 404, 657 P2d 1223 (1983), is instructive in that regard. In Villagran, the issue was whether information from a disinterested named citizen informant, who was unconnected with the crime being investigated, should be deemed credible when police questioned him about a suspect. At issue was the validity of a search warrant authorizing the search of premises near Umpqua, Oregon. After discovering marijuana growing in a barn located in Lookingglass, Oregon, the police seized items from that location, including an address in Roseburg. By checking public records, they learned that Villagran and Waterbury resided at the Roseburg address. The police also learned from an individual who lived near the Lookingglass property that Madsen had built the barn from which the marijuana was
“the guy he built the barn for was building an ‘underground’ house in Umpqua which is described as being on the driveway adjacent to the driveway for the Cal Henry residence which is located at 1054 Cal Henry Road. Going up the driveway to the ‘underground’ housе, to the left of the driveway is a trailer house and a barn behind said trailer. The ‘underground’ residence is located further down the driveway.” Villagran, 294 Or at 407 n 3 (quoting affidavit for search warrant in that case).
Based on that information, the trial court issued a search warrant for the Umpqua property, and the police seized evidence from it, that the defendant sought to suppress. She argued in support of her motion that the affidavit failed to show the basis of Madsen‘s knowledge and that the warrant therefore had issued without probable cause.
The Supreme Court pointed out that Madsen “appears to be a wholly disinterested citizen providing information to the police at their request.” Villagran, 294 Or at 411. Similarly, here the information provided by C.G., A.M., J.M., M.R. and J.McP. comes from citizen informants who had no complicity in the criminal conduct being investigated at defendants’ residence. The Villagran court then turned to the basis of Madsen‘s knowledge. It stated:
“Under the circumstances disclosed by the affidavit, it is reasonable to conclude that his knowledge was obtained in the course of working for or with Waterbury on the barn, and that Madsen was credible and that his information was accurate. Moreover, it was obtained at poliсe request rather than volunteered. Unlike the Aguilar/Spinelli anonymous informant cases or those such as [State v. Montique, 288 Or 359, 605 P2d 656, cert den 449 US 846 (1980),] where the informer is fingering someone and there is no independent ground for believing the story, here there is no reason for viewing the informer‘s information with suspicion or caution. Madsen‘s information, in a sense verifies itself. Reasonable persons routinely rely upon factual information obtained in a manner such as this. One could naturally and not unreasonably conclude from the information that
Waterbury had arranged for the barn to be built by Madsen and that Waterbury was building a house on Cal Henry Road and might be living there. Accordingly, we hold that the affidavit was sufficient to establish the truth of Madsen‘s statements.” Villagran, 294 Or at 412.
The same quality of self-verification that existed in Villagran exists in this case. The information is from named informants, and its particular nature gives rise to a reasonable inference that it was learned by the informants from first-hand contacts with defendants’ residence or members of their household. The affidavit states that the police conducted interviews with C.G., A.M., J.M. and M.R. It also states that, “according to interviews with those girls who are friends of [the daughter] and who visit the residence, [Gonzales Cruz] does housework for the Bоyers, watches the girls when the parents are away, runs errands using his and the parents’ vehicles, and sleep[s] in both the living room or [the daughter‘s] room.” (Emphasis added.) It also recites that Gonzales Cruz is “identified” by C.G., A.M., J.M., and M.R. “as the adult male having a sexual relationship” with defendants’ daughter, and says that A.M. and M.R. knew about the contact between the police and defendants on December 6 and that they knew that Gonzales Cruz was present in the residence at the time that Daniel Boyer prevented the authorities from entering.
Although the affidavit is ambiguous about who the “friends” are who “visit” the residence, it is subject to the same kind of reasonable inferences as the affidavit was in Villagran. Here, it is reasonably inferable from the affidavit as a whole that the visitors to defendant‘s household are the same girls who are listed by name in the preceding paragraphs of the affidavit. In those paragraphs, the named informants give information about activities inside defendants’ household about which outsiders would likely not know, but of which visitors to the household or friends of its occupants would likely be aware. That particularized information given by the named informants followed by the paragraph regarding the visitors’ observations gives rise to a reasonable inference that the named informants had been inside the home, and that they are the girls referred to as the “friends” and the “visitors.”
The reasonableness of the inference that the girls’ knowledge was acquired first-hand arises from a number of facts in the affidavit. First, there is the cross-corroboration among the informants. Second, there is no hint or suggestion in the affidavit that the named informants’ reports of sexual activity in the residence are derived from community rumor. For example, the affidavit does not say that the girls heard at school from their friends that such a relationship was occurring. Instead, the affidavit uses phrases that indicate that the information came from first hand information: phrases such as Gonzales Cruz was “identified by [the named informants],” “[name of informant] said,” or “[name of informant] confirmed knowing.” In addition, the detailed information provided by the girls, such as what chores Gonzales Cruz did inside defendants’ home, would not ordinarily be known by the general community.
Finally, as discussed above, some of the most persuasive evidence leading to a reasonable inference that some
The dissent advances one more reason why the state should not be given the benefit of a reasonable inference from the affidavit that the named informants are the same girls who visited defendants’ residence. The dissent says that the state has “rejected” such an inference. It asserts that the state has “expressly treated the two groups as separаte,” 172 Or App at 619, and focuses on phrases in the state‘s brief such as “unnamed friends” and “unnamed neighbors.” It concludes that “[T]he only way to read the state‘s argument is that it asserts that the named girls are not the same as the unnamed friends.” 172 Or App at 620. The state will be surprised to learn that the dissent has understood its brief in that way. The two references in the state‘s brief on which the dissent relies are used to describe information that is also furnished by named informants; the same named informants (A.M. and M.R.) who knew that Gonzales Cruz was hiding inside defendant‘s residence when the police contacted them. There is no express repudiation or concession in the state‘s brief that the girls who visited defendants’ residence are not the same girls named in the affidavit. Unlike the dissent, we are not willing to read into the state‘s position a concession that it does not expressly make or to conclude that the state must have implicitly conceded that fact because of the positions that it does take.
Actually, the state raised to the trial court the precise issue regarding named informants upon which our analysis is based. Below, the state expressly argued to thе trial court that the information that it should consider came
“I think its important for the court to-there‘s been a lot of talk about informants and unnamed informants. There were no [unnamed] informants in this case, that‘s something that the Court needs to consider. There were named people, named girls, that gave information either directly to Officer Walker or to Detective Reed who then supplied that information to Officer Walker [the affiant].” (Emphasis added.)
On appeal, the state reiterates its arguments made below:
“In this case, the trial court used a two-step process to determine that Officer Walker‘s affidavit was insufficient. First, the trial court determined that the affidavit relied largely on the statements of named informants, but failed to express explicitly the informants’ basis of knowledge or provide indicia of their reliability. That failure to satisfy the Aguilar-Spinelli test, the court believed, was an aspect of the totality of the circumstances that defeated probable cause for the search. The trial court then ‘excised’ from the affidavit any information that it viewed as irrelevant in establishing probable cause. After reevaluating the affidavit in light of the information added pursuant to defendants’ motions to controvert, it determined that what remained in the affidavit was insufficient to justify the issue of a warrant.
“The state respectfully submits that the court‘s analysis was flawed in both respects. Whether an affiant explicitly sets forth an informant‘s basis of knowledge and otherwise shows the veracity of the informant certainly [is] part of the totality of circumstances affecting a determination of whether the affidavit provides probable cause. That does not mean, however, that unless an affidavit relying on informants’ statements expressly meets the Aguilar-Spinelli test, it is legally insufficient.”
The statement from the state‘s brief shows that it continues to rely on its assertion below that the girls named in the affidavit are the informants whose basis of knowledge is in dispute. In addition, the state‘s brief on appeal takes care to distinguish information gained from “unnamed neighbors” from information supplied by M.R. and C.G., all of
In summary, we disagree with the trial court and the dissent that, after irrelevant and unsupported material is disregarded, the remaining information in the affidavit does not establish probable cause that evidence of sex crimes and controlled substances would be found at defendants’ residence. It is important not to permit the analysis to isolate any one informant in the affidavit. The test is one of the totality of the circumstances, and no single factor as to a particular
Reversed and remanded.
ARMSTRONG, J., dissenting.
The majority takes a disorganized and conclusory affidavit and discovers in it facts and inferences that, the majority believes, are sufficient to show that there was probable cause for the magistrate to issue the search warrant. The majority‘s apparent success in panning a few nuggets of gold out of vast beds of gravel, however, depends on two fundamental errors: the majority fails to evaluate the evidence from named informants with the care that our case law requires, and it relies on an essential inference that the state, which is the appellant, expressly repudiated on appeal. When we instead analyze the affidavit according to our existing case law and consider only the arguments that the state did not foreclose on appeal, we must affirm the trial court‘s decision to invalidate the warrant and suppress the evidence that the police seized under its authority. Because I would follow our usual practices in those respects, I dissent from the majority‘s decision.
With a few exceptions, the information in the affidavit did not come from the officer‘s observations, in which case there would be no hearsay issue, or from other police sources or public records, where the hearsay issues would not usually be significant. Rather, essential evidence comes from
I agree that the affidavit contains probable cause to believe that Gonzales Cruz was living at defendants’ residence, and it may also include probable cause to believe that he was selling drugs from that location. However, in order to justify the warrant that the magistrate issued, and the search that the police conducted, the affidavit must also contain probable cause to believe that a search would disclose evidence of an illegal sexual relationship between Gonzales Cruz and defendants’ 13-year-old daughter. If there is not probable cause to support the warrant in its entirety, the entire seаrch is unauthorized. See State v. Beagles/White, 143 Or App 129, 135, 923 P2d 1244, rev den 324 Or 487 (1996) (warrant is overbroad if it permits seizure of things for which no probable cause exists); see also State v. Reid, 319 Or 65, 71, 872 P2d 416 (1994) (although affidavit contained probable cause to support a warrant to search the defendant, the search was improper because the warrant also permitted the search of persons for whom there was no probable cause).
The majority relies primarily on statements from a number of named informants that an illegal relationship existed. Those informants were either underage girls who
The majority next argues that this case is similar to State v. Villagran, 294 Or 404, 657 P2d 1223 (1983), in which the Supreme Court held that it was possible to infer the basis for a named informant‘s information from the information itself. In Villagran the informant, a disinterested citizen who had no apparent involvement in any criminal activity, had built a barn for the defendant‘s associate. He told the police that the person for whom he had built the barn was building an underground house in a different location. The Supreme Court concluded that it was reasonable to believe that the informant had learned the information about the house in the course of working on the barn for or with the defendant‘s associate. That was the kind of information on which people routinely rely, and it was sufficient to establish the truth of the informant‘s statements.
Although the Supreme Court did not expressly say so, Villagran is in large part an application of Spinelli, in which the United States Supreme Court held that information can be sufficiently detailed to permit the magistrate to infer that the informant had a basis for knowing what he or she said. The Court referred to an earlier case in which the informant stated that a drug courier had left Denver by train on a certain date, would return by train on one of two specified days with three ounces of heroin, and would be wearing
In this case, in contrast, there is nothing to indicate any connection between the named girls, on the one hand, and defendants or their daughters on the other, beside the fact that they live in the same section of town.4 The girls do not claim to be friends of the family or the daughter, nor do they claim ever to have been inside defendants’ residence. The details that they give of the alleged relationship between Gonzales Cruz and the 13-year-old daughter do not come close to the details in Villagran. Thus, there is no basis to infer that they gained their knowledge of that relationship in the course of other contacts with either of them.5 The only relevance of Villagran to this case is to emphasize again that an affidavit must provide some basis for a named informant‘s knowledge.6
The state‘s argument on this point is different from the majority‘s. According to the state:
“[The informants] must have known that Gonzales-Cruz and [the 13-year-old daughter] were sleeping together, based on their observation of behavior permitting that inference, on an admission by one of the two, or on community knowledge. That is apparent from the affidavit, which shows that [C.G.] and [M.R.] were both victims of sexual abuse; that [C.G.] had a sexual relationship with Santos, and that Santos was friends with either defendants or Gonzales-Cruz; and by [C.G.‘s] apparent volunteering of the information to police on the night that Santos was arrested for abusing her.”
Apparently recognizing that the affidavit provides no basis for the informants’ knowledge, the state also suggests that we should ignore their basis of knowledge in determining the reliability of their statements. That, however, is inconsistent with our previous cases, under which the Aguilar/Spinelli criteria remain important considerations in evaluating statements from named informants. Under that analysis, an informant‘s basis of knowledge is one requirement for showing probable cause, while the other requirement is to show either that the informant is credible or that his or her information is reliable. The affidavit must satisfy both requirements for unnamed informants. See 2 Walter R. LaFave, Search and Seizure § 3.3(a), at 90-94 (1996). For named informants, the ability to satisfy both requirements, while not as absolutely controlling as with unnamed informants, remains an important aspect of determining whether the totality of the circumstances supports a finding of probable cause. Indeed, in Farrar the court expressly pointed out
Ignoring a named informant‘s basis of knowledge is also inconsistent with the requirement of probable cause, because without some basis for an informant‘s knowledge of a hearsay statement there would be no reason for the issuing magistrate to believe that the statement is sufficiently reliable to justify the warrant. The total lack of information in the affidavit concerning the factual foundation for the informants’ statements so undercuts the reliability of those statements that, under the totality of these circumstances, the statements are of no value in finding probable cause.
If there is probable cause for this affidavit, it must come from the two other sources on which the majority relies: first, its inference that the named girls were the same people as the friends who, according to the affidavit, had visited the 13-year-old daughter at her home, and, second, the testimony of Huff-Olvera. I will deal first with the inference that the named girls were also the unnamed friends. The majority states that, “[a]lthough the affidavit is ambiguous about who the ‘friends’ are who ‘visit’ the residence,” it is reasonable to infer that they are the named underage girls. Based on that essential inference, the majority attributes all of the information from the “friends” to those named girls, thereby providing a basis for them to know about a relationship between Gonzales Cruz and the 13-year-old daughter.
The fundamental problem with the majority‘s position is that the state expressly treated the two groups as separate. Thus, the majority is basing its reversal of the trial court‘s order on an argument that the appellant expressly failed to make to this court. The relevant statements appear in two paragraphs in the affidavit. In the first paragraph, the officer described evidence that indicated that Gonzales Cruz lived at defendants’ residence. Part of that evidence was the statement that:7
“According to interviews with those girls who are friends of [the 13-year-old daughter] and visit the residence, Mr. Gonzales Cruz does housework for the Boyers, watches the girls when the parents are away, runs errands using his and the parents’ vehicles, and sleeps in both the living room or [the daughter‘s] room. He also pays the Boyers rent for his housing arrangement.”
The paragraph then ends with a reference to an automobile that Gonzales Cruz owned and that was routinely parked in the area used by those living at defendants’ residence. The next paragraph begins:
“Mr. Jose Juan Gonzalez Cruz is identified by [C.G.], [A.G.], [J.M.], [M.R.], [J.McP.], and Ms. Brandy Huff-Olvera as the adult male presently having a sexual relationship with [the 13-year-old daughter], DOB 11-05-84.”
Especially in light of the generally poor organization of the affidavit, there is no necessary connection between these references in separate paragraphs to the named girls and to the unnamed friends. Thus the affidavit does not compel the inference that the two groups are the same. The state, however, goes further and reads the affidavit as excluding the inference. In its brief, the state says, in arguing that the affidavit provides probable cause that a search would produce evidence of sex crimes, that it “relies primarily on the statements of Huff-Olvera, [C.G.], [A.M.], [J.M.], and [M.H.], and several unnamed friends of [the 13-year-old daughter].” (Emphasis added.) Later in its brief, the state asserts that numerous individuals substantiated Huff-Olvera‘s claim that Gonzales Cruz and the daughter were sleeping together. According to the state, those individuals “included [M.H.], and [C.G.], both victims of sexual abuse by adult males; several unnamed neighbors who told police that they were friends of [the daughter‘s], that they had bеen inside defendants’ residence, and that they knew that [the daughter] and Gonzales Cruz shared a bedroom; and by [J.M.] and [A.M.]” The only way to read the state‘s argument is that it asserts that the named girls are not the same as the unnamed friends.8
“there are no facts establishing the credibility of these informants or setting forth their bases of knowledge. They are named informants, but it does not appear that they initiated the reports and they were not making statements against their penal interests. It‘s possible they are the same girls mentioned in paragraph 26 who are friends of [the 13-year-old daughter] and visit her residence, but that‘s not clear.”
That statement, in conjunction with the state‘s argument below, gave it a perfect opportunity to attack the trial court‘s decision on appeal by arguing that the magistrate could infer that the named girls and the unnamed friends were the same people. Instead, the state rejected thаt position and treated the two groups as separate.9 I would not take a position that the appellant declined to take but, rather, would hold the state to its choice.
When I evaluate the evidence from the named girls and the unnamed friends separately, neither has significant value. The evidence of the named girls is inadequate under the totality of the circumstances test because nothing in the affidavit shows that they had any basis for knowing the information that they gave. This is not a case of a weak basis of knowledge that other factors can rectify; there is no basis of knowledge. The evidence of the unnamed friends fails the
That leaves Huff-Olvera‘s evidence as the only possible foundation for the decision to issue the warrant. Her statements must provide the necessary evidence without significant assistance from any other source. Because she is a named informant I evaluate her statements under the totality of the circumstances test. Huff-Olvera is in a different category from the other minor girls. At the time of the affidavit she was 17 yеars old and married, while the other girls were 13 or 14 and single. Her husband had recently been deported; since his deportation she had lived with at least two other men. The affidavit describes Huff-Olvera‘s involvement in a way that makes her a perpetrator rather than a victim. According to three of the minor girls, in return for compensation Huff-Olvera provided underage girls to adult men for sexual purposes. As an apparent result of those or similar accusations, at the time of the affidavit she was under arrest on a charge of compelling prostitution. In addition, Huff-Olvera stated that, two weeks before the date of the affidavit, she had purchased cocaine from Gonzales Cruz at defendants’ residence.
Huff-Olvera is the only named informant who claimed any direct contact with either Gonzales Cruz or defendants’ residence. Some of her information could contribute to a finding of probable cause. Her contact with Gonzales Cruz might give her a basis for knowing the relationship between him and the 13-year-old daughter. It clearly gave her a basis for knowing that Gonzales Cruz lived with defendants and that he sold drugs from their residence. Her statements also subjected her to possible criminal liability for making a false police report and for possession of cocaine; at least the statement concerning purchasing drugs was thus against her penal interest. Those factors tend to support the warrant.
Even recognizing those things, Huff-Olvera‘s statements do not in themselves provide probable cause for the affidavit that the magistrate issued. First, the crucial statements are general rather than specific. She gives none of the
I agree that Huff-Olvera‘s statements could contribute several tesserae toward creating a mosaic of probable cause. When those statements are all that there is, however, the design is only begun. By themselves, they are not sufficient to support a search for evidence of an improper sexual relationship between Gonzales Cruz and the 13-year-old daughter, and the rest of the affidavit does not make up for that insufficiency. I would therefore affirm the trial court‘s order and dissent from the majority‘s contrary conclusion.