Opinion
No. A-7490.
February 23, 2001.
Appeal from the Superior Court, Second Judicial District, Barrow, Michael I. Jeffery, Judge. Trial Court No. 2BA-99-082 Cr.
William R. Satterberg, Jr., Fairbanks, for Appellant.
John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
OPINION
The issue in this case is whether the district court should have issued a warrant to search Moradilla's residence based primarily on an arrestee's statements that he and Moradilla were engaged in a partnership to sell methamphetamine. Moradilla argues that the arrestee's statements were insufficiently corroborated to meet the "veracity" or "credibility" prong of the Aguilar- Spinelli test. The State argues that the arrestee's statements were self-verifying because the arrestee was subjecting himself to criminal liability. We conclude that, under the circumstances presented here, the arrestee's statements were not against the arrestee's interests to a degree sufficient to satisfy Aguilar- Spinelli's second prong. Accordingly, we hold that the search warrant should not have been issued, and we reverse Moradilla's conviction.
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). And see State v. Jones, 706 P.2d 317, 324-25 (Alaska 1985) (holding that, as a matter of state law, the Aguilar-Spinelli test continues to govern the evaluation of hearsay information offered to support a search or seizure).
Facts of the case
On February 16, 1999, the North Slope Borough Police executed a search warrant on the residence of Jorge Moreno in Barrow. The police were investigating Moreno's potential involvement in the sale of methamphetamine, and they discovered drugs in the residence.
While the police were still inside the residence, and after the drugs were found, Lieutenant Kelly Cox interviewed Moreno. Cox urged Moreno to confess his involvement in the sale of drugs. She falsely assured him that he would be in no greater trouble for selling drugs than he already faced for possessing them. Moreno made various inculpatory statements during this interview. The next day, Moreno was re-interviewed, and at that time he told the police that he was involved in a drug-selling partnership with the appellant in this case, Henry J. Moradilla.
According to the tape recording of their interview, Cox told Moreno: "Let me tell you this. You understand that [we have found] drugs . . . . You're not going to get in any more trouble if you were selling them. So if you're just [denying] that because you think you're going to get in more trouble, you're not. I'd rather know the truth . . . . So, . . . [w]ho do you give it to?
Moreno asserted that Moradilla received the methamphetamine in packages that were sent by express mail from California. Moreno said that he had been at Moradilla's house on numerous occasions, re-packaging the methamphetimane for sale at $100 per package. Moreno told the police that Moradilla himself was a drug user, and that he kept methamphetamine on his person and at his house. Moreno predicted that if the police searched Moradilla's house, they would find quantities of cash and drugs. The methamphetamine, Moreno said, was stashed in cabinets, in jars, under the bed, and in an eyeglass case next to Moradilla's computer.
Based on Moreno's tip, the police applied for a warrant to search Moradilla's residence. When the magistrate asked what steps the police had taken to verify Moreno's assertions, the officer told the magistrate that the police had corroborated Moreno's description of Moradilla's residence address and yard. In particular, Moradilla's employer verified that Moradilla lived at the same address that Moreno had mentioned, and when the police drove by this house, they observed a snow machine and an old vehicle that Moreno had described.
The court issued the warrant, and the police performed a search of Moradilla's residence that same day. They recovered 14.1 grams of methamphetamine as well as cash, drug paraphernalia, bindles, baggies, express mail receipts, a digital scale measuring in tenths of grams, and firearms.
Moradilla was indicted for third-degree misconduct involving a controlled substance (sale of methamphetamine). After the superior court denied his motion to suppress the fruits of the search warrant, Moradilla entered a Cooksey plea, reserving the right to appeal the denial of his motion to suppress.
AS 11.71.030(a).
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Why we conclude that the State failed to satisfy the second prong of the Aguilar-Spinelli test
When the government applies for a search warrant and relies on information obtained from an informant who does not personally appear before the magistrate, the Aguilar- Spinelli rule requires the government to establish (1) the basis of the informant's knowledge and (2) reason to believe that the informant is a trustworthy source of information. As noted above, Moreno asserted personal knowledge of the events he described to the police, and Moradilla essentially concedes that the State satisfied the "basis of knowledge" part of the Aguilar- Spinelli test. This appeal centers on the second aspect of the Aguilar- Spinelli test: whether the State established that Moreno was a credible informant.
An informant's credibility can be established by independent evidence corroborating the informant's assertions. But here, the only independent evidence corroborating Moreno's accusations was (1) the address of Moradilla's house and (2) the description of the two vehicles sitting in his yard. Verification of such "public facts" and "wholly innocuous details" does not satisfy the Aguilar- Spinelli test. For instance, in Stam v. State , we held that police corroboration of an informant's description of "the location and physical layout of [the suspect's] property" was insufficient to establish the informant's credibility under the Aguilar- Spinelli test.
See State v. Jones, 706 P.2d 317, 324-25 (Alaska 1985); Schmid v. State, 615 P.2d 565, 576-77 (Alaska 1980).
Lloyd v. State, 914 P.2d 1282, 1288 (Alaska App. 1996) (quoting Carter v. State, 910 P.2d 619, 624 (Alaska App. 1996)).
925 P.2d 668, 671 (Alaska App. 1996).
Indeed, the State does not argue that Moreno's credibility was established through corroborative evidence. Instead, the State contends that Moreno's statements were against his own penal interest and were therefore worthy of belief even without independent corroboration.
The State points out that Moreno's statements during the February 17th interview incriminated him to a far greater extent than anything he had said to the police when they searched his house the day before. In particular, Moreno admitted that he was Moradilla's partner in the ongoing sale of methamphetamine, and he offered various details of how the business was run. Because of these statements, Moreno faced prosecution for a class B felony (distributing methamphetamine or possessing it for the purpose of distribution) rather than a class C felony (possessing methamphetamine for personal use).
Compare AS 11.71.030(a)(1) with AS 11.71.040(a)(3)(A). Methamphetamine is a Schedule IIA substance; see AS 11.71.150(e)(2).
But when we assess whether Moreno's statements should be deemed inherently trustworthy for purposes of satisfying the second prong of the Aguilar- Spinelli test, the crucial factor is not whether Moreno's statements actually tended to subject him to criminal prosecution and punishment, but rather whether Moreno perceived his statements as exposing him to significant criminal punishment. As this court explained in Adkinson v. State, the "fundamental question is whether the informant would have perceived his remarks as highly incriminating."
869 P.2d 486, 491 (Alaska App. 1994) (quoting Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (1st ed. 1978), § 3.3(c), Vol. 1, p. 531). The same quote is found in the current (3rd) edition of LaFave, § 3.3(c), Vol. 2, p. 134.
As we have already explained, when Moreno was first interviewed, he was falsely told that he faced no greater criminal liability if he admitted selling drugs rather than merely possessing them. Because Moreno received this assurance from a police officer, it would seem that Moreno would apprehend no danger in later telling the police about his methamphetamine partnership with Moradilla. That is, Moreno would not perceive that his statements might subject him to additional criminal liability.
The State attempts to avoid this inference by pointing out that, when Moreno was interviewed on February 17th, the officers conducting the interview were careful to tell Moreno that they could make no promises of lenient treatment in return for the information he might furnish. But even though Moreno knew he could not expect a firm promise of lenient treatment, this does not mean that he might not hope for lenient treatment in exchange for his cooperation. And, more important, the officers who interviewed Moreno on February 17th never told him that he had been misinformed the previous day, when the officer assured Moreno that a confession to sale of drugs would not subject him to any additional criminal liability.
Finally, the State relies on prior Alaska decisions which declare that an appellate court should accord "great deference" to a magistrate's decision to issue a search warrant. As our supreme court said in Metler v. State, "the resolution of doubtful or marginal cases in this area should be largely determined by the preference . . . accorded to warrants." When, as in this case, the issue is whether the allegations contained in a search warrant application are sufficient to establish probable cause, an appellate court will not reverse the magistrate's ruling unless it constitutes an abuse of discretion.
See, e.g., Metler v. State, 581 P.2d 669, 673 (Alaska 1978); Lewis v. State, 862 P.2d 181, 185 (Alaska App. 1993); State v. Bianchi, 761 P.2d 127, 129-30 (Alaska App. 1988); State v. Conway, 711 P.2d 555, 557 (Alaska App. 1985).
581 P.2d at 673 (quoting United States v. Ventresca, 380 U.S. 102, 109; 85 S.Ct. 741, 746; 13 L.Ed.2d 684, 689 (1965)).
See State v. Bianchi, 761 P.2d 127, 130 (Alaska App. 1988).
But despite this deference, we are obliged to make sure that search warrant applications comply with the requirements of the Aguilar- Spinelli rule. As the United States Supreme Court said in Spinelli v. United States,
In [striking down this search warrant], we do not retreat from the established proposition that [a magistrate's] determination of probable cause should be paid great deference by reviewing courts[.] But we cannot sustain this warrant without diluting important safeguards that assure that the judgment of a disinterested judicial officer will interpose itself between the police and the citizenry.
393 U.S. at 419, 89 S.Ct. at 590-91 (citation omitted).
Having examined the record in this case, we conclude that the State's search warrant application failed to establish Moreno's credibility as a hearsay informer, and thus the search warrant should not have been issued. The superior court should have granted Moradilla's suppression motion. Accordingly, the judgement of the superior court is REVERSED.