Fillers v. Commonwealth

DAVIS, Commissioner.

Appellant was found guilty of illegal possession of morphine, a narcotic drug, in contravention of KRS 218.020. His punishment was fixed at a fine of $10,000 and imprisonment for eight years. On this appeal the sole question presented is whether the affidavit for a search warrant was valid. The contraband was seized after a search of appellant’s automobile, pursuant to a search warrant issued by the Judge of the Covington Police Court. The affidavit upon which the search warrant was issued is as follows:

“Comes the affiant, William D. Jones, Special Agent of Bureau of Investigation, U. S. Govt., who personally appeared before the undersigned and being first duly sworn now on oath deposes, affirms and says that he has and there is reasonable and probable grounds to believe and affiant does believe that there is now on the premises known and * * * in (a) vehicle described as a 1963 Buick (2 door) Riveria, registered in the name of one Kenneth Fillers, 15 West 15th Street, Cincinnati, Ohio and parked in Gateway Motel parking lot 2nd and Scott Streets, Covington, Kentucky and being towed to Al’s Garage, 25 West 18th Street, Covington, Kentucky, and entire interior of said motor vehicle bearing 1969 Ohio License 6190 AS the following described personal property, to wit: A narcotic drug, commonly known as morphine.
“Affiant states that there is probable and reasonable cause to believe and af-fiant does believe that said property constitutes property or things used as the means of committing a crime.
“Affiant has been an officer in the above agency for a period of one year and the information and observations contained herein were received and made in his capacity as an officer thereof.
“On the 11th day of February, 1970, at approximately 3: P.M., affiant re*106ceived information from a reliable, credible and confidential informant, whose name is not disclosed herein, that at about 10: A.M., same date, February 11, 1970, said Kenneth Fillers did have morphine on or about his person and at said time, said Kenneth Fillers was in possession and control of said motor vehicle hereinbefore described.
“Acting on the information received, affiant conducted the following independent investigation: affiant upon investigation determined that Kenneth Fillers was in possession of said motor vehicle hereinbefore described and said motor vehicle located in Al’s Garage, 25 West 18th Street Covington, Kentucky * * * »

Berkshire v. Commonwealth, Ky., 471 S.W.2d 695, decided October 8, 1971, was rendered after trial of this case in the trial court. The affidavit here is as deficient as was the affidavit condemned in Berkshire, and for the same reasons.

The Commonwealth virtually concedes that the affidavit in this case is indistinguishable from the one invalidated in Berkshire, but contends that the independent investigation of the officer (whereby he learned that appellant actually owned an automobile as described in the affidavit) was enough to furnish a basis for a finding of probable cause and reliability of the unnamed informant. Ownership of a particular car, in the circumstances presented here, is not a basis for inferring anything except, perhaps, that the appellant knows how to drive and is sufficiently affluent to have title to an automobile. Neither of these circumstances lends any support to the claim that an unnamed informant was credible or that the unnamed informant himself had obtained his information in a legally acceptable manner. The court erred in denying appellant’s motion to suppress the fruits of the illegal search.

The judgment is reversed for proceedings consistent with the opinion.

MILLIKEN, C. J., and HILL, OSBORNE, PALMORE, REED and STEIN-FELD, JJ., concur. NEIKIRK, J., dissents.