Opinion
No. 2-114 / 01-1263.
Filed May 15, 2002.
Appeal from the Iowa District Court for Polk County, ROBERT J. BLINK, Judge.
The State seeks discretionary review of a district court ruling suppressing evidence obtained pursuant to a search warrant. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, John P. Sarcone, County Attorney, and Gary Kendall, Assistant County Attorney, for appellant.
Thomas Berg of Berg, Rouse, Spaulding Schmidt, P.C., Des Moines, and Bryan J. Tingle of Tingle, Knight, Webster Juckette, P.L.C., Des Moines, for appellee George Baker III.
Linda Del Gallo, State Appellate Defender, Tricia A. Johnston, Assistant Appellate Defender, for appellee Charles Brightman.
F. Montgomery Brown of Cook Brown, PLC, Clive, for appellee Christine Baker.
Considered by HUITINK, P.J., and VOGEL and EISENHAUER, JJ.
The State appeals a district court suppression ruling that found a search warrant was not supported by probable cause. Because we find probable cause did exist, we reverse and remand this matter for further proceedings.
Background Facts and Proceedings . On March 21, 2001, the Des Moines police department obtained a warrant to search the premises at 1733 S.E. Kirkwood for illegal substances, drug paraphernalia, and related items. The application was supported by a police affidavit citing three pieces of information. The first was a complaint received on January 16, 2001, in which "a concerned citizen" stated a man named George Baker sold drugs and that he lived at 1733 S.E. Kirkwood, along with his wife Christine. The second occurred on February 13, 2001, when two officers attempted a consent search at 1733 S.E. Kirkwood. The door was answered by a white male with reddish-blond hair who identified himself as George Baker. The man declined to allow the officers entry, stating he had company. The third occurred on March 21, 2001, after the police had placed 1733 S.E. Kirkwood under surveillance.
According to the affidavit, at approximately 11:20 a.m. officers observed a vehicle leave the residence and drive to a local auto parts store. After the vehicle left the auto parts store it was stopped by police for observed seatbelt and turn signal violations. The driver, Lonnie Burnsworth, was asked to exit the vehicle and was informed he had been stopped for the operating infractions. In speaking with police, Burnsworth stated he had left 1733 S.E. Kirkwood at approximately 11:15 a.m. or 11:20 a.m. and proceeded to the auto parts store. He identified a resident of 1733 S.E. Kirkwood as a Chuck Baker and stated Baker had offered to sell him methamphetamine. He further stated Baker had shown him a baggie of methamphetamine, which was located on a shelf in the laundry room of the residence.
Burnsworth went on to admit he was a user of methamphetamine and had purchased methamphetamine from Chuck Baker approximately five days prior. Burnsworth described Baker as a white male with glasses, reddish-blond hair, buckteeth, who stood five feet nine inches tall and weighed one hundred eighty five pounds. The police affidavit stated that, in addition to skin and hair color, the height and weight descriptions given by Burnsworth were consistent with that of the man who had identified himself as George Baker on February 13. A piece of paper with the address 1733 S.E. Kirkwood written on it was also located "on the dash area" in Burnsworth's vehicle.
At the suppression hearing the State conceded it appeared the man who identified himself as George Baker on February 13 and the man Burnsworth described and identified as Chuck Baker, were both actually Baker's co-defendant and fellow resident, Charles Brightman.
The warrant did not name the informant who provided the January 16 tip, but stated the informant was reliable as that person was a citizen informant acting in the public interest and that the information had been corroborated by the statement of Burnsworth. The affidavit further indicated Burnsworth's information had been corroborated by police observation of George Baker on February 13, their observation of Burnsworth on March 21, and the piece of paper found in Burnsworth's car. The issuing judge signed an endorsement as to the informants' credibility that mirrored the reasons set forth in the attachments to the warrant application.
The warrant's execution led to the seizure of evidence and the arrests of George Baker III, Charles Brightman, and Christine Baker. After charges were brought by the State, Brightman and the Bakers moved to suppress evidence seized at the residence, arguing the warrant was not supported by probable cause. The district court agreed, citing lack of credibility and reliability of the informant information and suppressed any and all evidence seized pursuant to the warrant. The State sought and was granted discretionary review.
Scope of Review . Although our review of this constitutional matter is de novo, we give great deference to the issuing court's findings. State v. Green, 540 N.W.2d 649, 655 (Iowa 1995). We do not make a new and independent finding as to probable cause, but determine only whether the issuing court had a substantial basis for its conclusion. Id. "Close cases must be resolved in favor of upholding warrants, as public policy is promoted by encouraging officers to seek them." Id.
Probable Cause . Probable cause to issue a search warrant exists when "a reasonable person would believe a crime was committed on the premises or that evidence of a crime could be located there." State v. Simpson, 528 N.W.2d 627, 634 (Iowa 1995). Such a determination is drawn from the totality of the circumstances. State v. Myers, 570 N.W.2d 70, 72 (Iowa 1997). Specifically, the issuing judge must 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 hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983). When a warrant is based on grounds provided by a confidential informant, "[t]he application or sworn testimony supplied in support of the application must establish the credibility of the informant or the credibility of the information given by the informant." Iowa Code § 808.3 (1999). See also State v. Weir, 414 N.W.2d 327, 331 (Iowa 1987) (interpreting former credibility provisions as applying to confidential informants only).
Contrary to the parties' assertions, § 808.3 no longer requires written credibility findings.
The credibility of the unnamed informant of January 16 was based on a claim he or she was "a concerned citizen." While there is a rebuttable presumption such an informant is generally reliable, State v. Peck, 517 N.W.2d 230, 232-33 (Iowa Ct. App. 1994), the warrant application provides absolutely no information about this particular informant's motivation or basis of knowledge. We are accordingly disinclined to find the presumption is raised in this case and "question whether an unnamed, unidentified person can ever be considered a citizen informant." Bousman v. Iowa Dist. Court for Clinton County, 630 N.W.2d 789, 800 (Iowa 2001) (finding it to be "sheer supposition" to conclude an informant was a "mere citizen" where nothing in the affidavit showed the informant witnessed or was a victim of the crime).
There was, however, independent corroboration of the information provided in the anonymous complaint, not only as to the identity and location of the individual accused of selling the drugs, but also as to that person's involvement in illegal activity. Accordingly, while the application did not demonstrate the reliability of the informant, it is arguable that when the totality of the circumstances is considered, the application sufficiently established the credibility of the provided information. Iowa Code § 808.3. Although some additional concern is raised by the amount of time that passed between the anonymous tip and the warrant application, it is also arguable the application contained sufficient indicia of the continuing nature of the alleged criminal activity to obviate any claim of staleness. See State v. Randle, 555 N.W.2d 666, 670 (Iowa 1996) (determining the staleness of information is dependent on the circumstances of each case, such as the timing and nature of the activity).
However, even if we were to determine the January 16 tip was stale or that its credibility was not established, and that probable cause must therefore be assessed without reference to the information, s ee State v. Beckett, 532 N.W.2d 751, 754 (Iowa 1995), the remaining incidents are sufficient to uphold the warrant. The primary basis for probable cause is found in Burnsworth's statement. Because Burnsworth is a named informant, his veracity and basis of knowledge do not control our assessment of the totality of the circumstances. Peck, 517 N.W.2d at 233. They are, however, relevant factors for our consideration. Id. Specifically, a named informant's reliability is enhanced where he directly witnesses the criminal activity, where his information is detailed and of facts not publicly known, where he is trusted by the accused individual, and when he makes statements against his own penal interests. State v. Neihaus, 452 N.W.2d 184, 190 (Iowa 1990). See also State v. Gogg, 561 N.W.2d 360, 365 (Iowa 1997).
Here, Burnsworth provided first-hand, detailed information indicating illegal drugs were located within a private home at 1733 S.E. Kirkwood and that a resident of that location, with which he had prior dealings, was involved in their sale. Burnsworth also made inculpatory statements regarding his own prior drug usage and drug purchases. Corroboration of his statement was provided by the paper with the Kirkwood address that was found in his vehicle, as well as the observations made during police surveillance on the day in question. See State v. Swaim, 412 N.W.2d 568, 574 (Iowa 1987) ("Independent corroboration of the details of an informant's tip, even if limited to observation of innocent behavior, may serve as strong support for that informant's reliability.").
Further corroboration is found in the February 13 police visit, which established a man who appeared to live at the residence claimed the same last name and had similar physical characteristics as the one described by Burnsworth. See id. Moreover, while the refused consent search does not alone constitute probable cause, it can be considered in conjunction with the remainder of the application in support of a probable cause finding. Green, 540 N.W.2d at 656. When the totality of the circumstances are considered, the facts contained within the application provided a substantial basis to support a probable cause finding and the issuance of the warrant. We therefore reverse the district court's suppression of the evidence seized from 1733 S.E. Kirkwood and remand this matter for further proceedings.
REVERSED AND REMANDED.