State v. Erler
State v. Erler
Opinion of the Court
delivered the opinion of the Court.
The State of Montana appeals the July 30, 1982, order of the District Court of the Fifth Judicial District, Jefferson County, suppressing all evidence seized from the defendant’s residence in a search conducted on December 30, 1981. The search was held to be illegal because the application for the search warrant was found to have failed to establish probable cause sufficient to justify a search of defendant, Mark Erler’s residence.
We find that the application for the search warrant did contain sufficient probable cause to support the issuance of the search warrant and reverse the order of the District Court.
On December 29, 1981, Jefferson County Undersheriff Tom Dawson was advised by Lewis and Clark County law enforcement officers of a tip they had received indicating that marijuana and cocaine would be entering Lewis and Clark County from the Jefferson County residence of Mark Erler. Further, the drugs were to be transported in a Chevrolet Malibu registered to a Cynthia Olson, with license number 5-50069. Although the informant was not identified, Lewis and Clark County officers did state that they had received reliable information from the same person on three previous occasions.
On the basis of the above information and his knowledge that Erler’s residence is located approximately two miles up Basin Creek Road from U.S. Highway 91, Undersheriff Dawson positioned a county deputy at the junction of the two roads. At 10:37 p.m. December 29, 1981, the deputy observed the above-described automobile entering Highway 91 from the Basin Creek Road. Lewis and Clark County officers were so notified and the Olson vehicle was stopped
Undersheriff Dawson then applied to a justice of the peace for a search warrant to search Mark Erler’s residence. The application contained the information set forth above. The warrant was issued and a search of the residence was conducted in the early morning hours of December 30, 1981. The search uncovered $2070 in cash, drug paraphernalia, marijuana and other controlled substances. It is that evidence which the State contends was erroneously suppressed by the District Court.
To determine whether there was probable cause to issue the instant search warrant, we must look only at the information contained within the four corners of the search warrant application. State v. Isom (1982), [196 Mont. 330,] 641 P.2d 417. That information was given to Lewis and Clark County officers by an informant and then relayed to Jefferson County officers, whose subsequent investigation successfully corroborated nearly all of the informant’s allegations.
Prior to the United States Supreme Court’s recent decision of Illinois v. Gates (1983), [462 U.S. 213,] 103 S.Ct. 2317, 76 L.Ed.2d 527, an informant’s tip (and thus the information in the application) had to meet the rigidly interpreted “two-prong test” set forth in Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, for determining whether probable cause exists for issuing a search warrant before the warrant would be valid. That test is:
1. The magistrate must be informed of some of the circumstances underlying the informant’s conclusions or his “basis of knowledge”; and
2. The magistrate must be informed of some of the circumstances underlying the officer’s conclusions that the informant was credible or his information reliable. Aguilar,
The Supreme Court in Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, then expanded upon the Aguilar test to hold that a tip could contain sufficient “self-verifying” detail to satisfy the “basis of knowledge” requirement.
“In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Spinelli, 393 U.S. at p. 416, 89 S.Ct. at p. 589, 21 L.Ed.2d at p. 644.
The Spinelli case also indicated that a pre-Aguilar case, Draper v. United States (1959), 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, remains the authority for determining the veracity of an informant’s tip. Thus, an officer’s personal verification, through corroboration of an informant’s very specific allegations, is sufficient circumstance to verify a conclusion that the information is credible or reliable. Spinelli, 393 U.S. at pp. 416-417, 89 S.Ct. at p. 589, 21 L.Ed.2d at p. 644.
In Illinois v. Gates, supra, however, the Supreme Court abandoned the two-prong test set forth in Aguilar and returned to a more traditional standard for determining whether sufficient probable cause exists to issue a search warrant on the basis of an informant’s tip. The Gates test involves a “totality of the. circumstances” analysis and incorporates the specifics set forth in Aguilar without requiring that each and every element be proved before probable cause can be found. The absurdly technical aspects of the previous test are thus abandoned.
The magistrate must now simply “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying her
The probable cause requirement for the issuance of a search warrant is found in the Fourth Amendment to the United States Constitution: “. . . no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized;” and in Article II, Section Eleven of the Montana State Constitution: “. . . No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation to writing.”
We find sufficient probable cause to issue the search warrant in the instant case under either the AguilarSpinelli test or the Gates test set forth by the United States Supreme Court.
The Aguilar-Spinelli Test
Although the justice of the peace was never told the informant’s “basis of knowledge”, the tip contained sufficiently detailed information to enable the magistrate to reach the determination that the tip was based on “something more substantial than a casual rumor” or an accusation based “merely on [defendant’s] general reputation.” The informant knew such details as the model of car which would be leaving defendant’s house carrying drugs, its license number and its registered owner. That information is much too specific to be considered part of a “casual rumor”.
The Gates Test
Since we have upheld the search warrant under the Aguilar Spinelli test, there is no doubt but that the warrant is also valid under the less stringent test of Gates. Given the specific details of the informant’s tip and the officers’ ability to corroborate those details, there was substantial basis for the justice of the peace to make the determination that “there [was] a fair probability that contraband or evidence of a crime” would be found at the residence of Mark Erler.
The order of the District Court is reversed. The search warrant is held to be valid and all evidence acquired as a result of that warrant is admissible against the defendant, Mark Erler.
Concurring Opinion
specially concurring:
I concur in the result on the ground that probable cause existed for issuing a search warrant under Illinois v. Gates (1983), [462 U.S. 213,] 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
Reference
- Full Case Name
- STATE OF MONTANA, Plaintiff and Appellant, v. MARK ERLER, A/K/A Mark Martin, Defendant and Respondent
- Cited By
- 6 cases
- Status
- Published