Newton v. State

PARKS, Judge,

dissenting:

I dissent. I find the search warrant affidavit lacks sufficient information to give rise to belief that there was probable cause to issue the warrant. I recognize that this Court discarded the Aguilar-Spinelli standard regarding state constitutional attacks upon search warrant affidavits.1 Lang*397ham v. State, 787 P.2d 1279 (Okl.Cr.1990). However, I am convinced that the affidavit in the instant case also fails the “totality of the circumstances” test. The majority opinion correctly indicates that the “totality of the circumstances” test requires the issuing magistrate to decide whether, given the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability contraband or evidence of a crime will be found in a particular place. Langham at 1281.

In the case before us, the issuing magistrate, the Honorable J.L. Sontag, in the District Court of Washington County, sustained appellant’s motion to suppress and motion to quash because of the defective affidavit. However, the reviewing judge, the Honorable J.R. Pearman, entered an order reversing the decision of Judge Sontag. I agree with Judge Sontag that the affidavit was constitutionally inadequate. The affidavit reveals absolutely no information to reflect the trustworthiness or veracity of the informant. Nor does the affidavit indicate that the informant is a convicted felon.

Additionally, the underlying circumstances in this case lack the reliability of those in Langham. Here, unlike Langham, no controlled purchase of contraband was conducted to verify the informant’s statements. Furthermore, unlike Langham, the detective/affiant had not known the informant prior to his “tip,” so he had no knowledge of the informant’s past performance. In short, the affidavit in the instant case lacks any of the underlying safeguards contained in the affidavit reviewed in Langham. Accordingly, I dissent.

. It remains the opinion of this writer that the Court should not have abandoned the Aguilar-Spinelli line of cases. However, I am bound by *397stare decisis to accept the "totality of the circumstances” test adopted in Langham.