Foster v. State

BRETT, Presiding Judge,

specially concurring.

In the case of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court examined a search warrant that was issued on the basis of an anonymous letter, the details of which were partially corroborated by police officers. The courts below had ruled that the affidavit in support of the application for the search warrant was inadequate under the two-pronged test developed by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Under that test, an affidavit based on an informant’s tip provided probable cause only if there was a showing that the informant was reliable and that there was a basis for concluding that he knew the contraband was where it said it would be.

The Gates court abandoned the Aguilar-Spinelli test and reaffirmed the traditional totality-of-the-circumstances analysis. The Court ruled as follows:

The task of the issuing magistrate is simply to make a practical, commonsense 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. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... con-cludpng]” that probable cause existed.

462 U.S. at 238, 103 S.Ct. at 2332.

In applying the new test to the facts of the case before us, there is no doubt that the magistrate had a substantial basis for concluding that probable cause existed. In fact, it is this writer’s opinion that the affidavit is adequate under the old test. The informant, who was not anonymous as was the case in Gates, told the police that *1137George Hanna was stealing cars and selling them. The informant was acting as a middle-man, providing buyers for the stolen cars.

Several of the cars the informant told police about had, in fact, been stolen and were recovered through a sting operation. The informant had never given information that proved to be false. These facts, which were set forth in the affidavit, provided sufficient indicia for the magistrate to conclude that the informant was reliable.

On December 12, 1983, the informant advised the police that a certain pickup truck had just been stolen by Hanna and was presently at a certain 7-11 store. A police officer verified that the truck was at that location. The informant had been advised by Hanna that when a buyer could not be found, the automobile would be taken to a “chop-shop” operated by H.C. Foster. While the stolen pickup truck was under surveillance, it was driven away from the 7-11 store and was seen thereafter at Foster’s residence. The setup of the chop-shop was also described and verified. These facts were sufficient to support a conclusion that the informant’s information was trustworthy.

It is true, as appellant asserts, that the information about the chop-shop was hearsay; however, the informant himself was involved in the criminal scheme and thereby had access to reliable, inside information.

Although a portion of the language in this Court’s decision in Leonard v. State, 453 P.2d 257 (Okl.Cr.1969) indicates that the informant must have personally observed the contraband upon the premises, the Court further stated as follows:

In complete fairness to the majority authors of Spinelli, we would point out that the opinion recognizes that under certain circumstances a reliable informant may base his statements that contraband is located on certain described premises if the affidavit discloses that the belief of the reliable informant is based upon an admission of one of the principals maintaining or keeping such contraband on the premises.

Id. at 259.

Hanna may not have been the person keeping the stolen automobiles at the Foster residence, but he was the person delivering them there as part of the theft ring. The above information, all of which was presented to the magistrate, provided sufficient probable cause to issue the search warrant. Accordingly, I concur in this decision.

ORDER CORRECTING VOTE

In the above-styled cause, this writer was recorded as “SPECIALLY CONCURRING.” However, my separate opinion was inadvertently omitted when the majority opinion was filed. This writer’s vote shall be changed to “CONCURRING IN RESULT” and the following separate opinion shall be attached to and published along with the majority opinion filed in the above-styled cause on August 12, 1987:

PARKS, Judge,

concurring in result:

Prior to the decision in the instant case, a majority of this Court had not adopted the Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), “totality of the circumstances” approach in determining the validity of a search warrant. See Tosh v. State, 736 P.2d 527 (Okla.Crim.App.1987) (Brett, P.J., and Parks, J., concurring in result). Although this writer is recorded in Tosh as “SPECIALLY CONCURRING,” a review of the original opinion reveals a clerical error. This writer actually voted to “CONCUR IN RESULTS,” thereby rendering the Tosh opinion as merely persuasive rather than precedential. I write separately here not only to correct the apparent inconsistency in my voting, but also to clarify my position regarding Illinois v. Gates. I accept the adoption of the Gates approach inasmuch as the appellant’s constitutional claim rests solely on the provisions of the Federal Constitution. However, I wish to make clear that the same result would not necessarily obtain under Article II, § 30 of the Oklahoma Constitution, as the recent well-reasoned opinion by Justice Kauger in *1138Turner v. City of Lawton, 733 P.2d 375, 380-81 (Okla.1986), illustrates. Accordingly, I concur in the result.

IT IS SO ORDERED.