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THE COURT OF APPEALS OF THE STATE OF ALASKA
BRIAN E. LLOYD, )
) Court of Appeals No. A-5581
Appellant, ) Trial Court No. 3AN-S93-6460CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1467 - April 19, 1996]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Karen L. Hunt,
Judge.
Appearances: Suzanne Weller, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Nancy R.
Simel, Assistant Attorney General, Office of
Special Prosecutions and Appeals, and Bruce
M. Botelho, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Brian E. Lloyd entered a plea of no contest to a charge
of misconduct involving a controlled substance in the fourth
degree, AS 11.71.040(a)(3)(F) (possession of more than a pound of
marijuana), and was subsequently convicted based on this plea.
Lloyd appeals, contending that Superior Court Judge Karen L. Hunt
erred in denying his motion to suppress evidence obtained
pursuant to a warrant issued without probable cause.1 We
reverse.
On March 18, 1993, Anchorage Police Detective David A.
Koch applied to District Court Judge Gregory J. Motyka for a
warrant to search an Anchorage residence in which Lloyd was
allegedly growing marijuana. A supporting affidavit submitted by
Koch recited at length Koch's extensive experience and training
in drug investigations; the affidavit went on to disclose that
Koch's search warrant application was based on information
received from an unnamed informant:
On March 13, 1993 the Crime
Stoppers line at the Anchorage Police
Department received a phone call reporting a
marijuana grow operation at 4618 McPhee. The
caller said that Brian E. Lloyd was running a
marijuana grow at that residence. The caller
described the house as a small red house,
also saying that they had seen 50-80
marijuana plants in the house two days
before. The caller described Lloyd as being
approx 30 yrs old, 5'6", 150 lbs.
The affidavit added that Koch had driven past 4618 McPhee on
March 16 and had seen a small red house at the address, that a
car registered to Lloyd had been parked in front of the house,
and that "[a] computer check on Brian E. Lloyd shows him to be
5'8", 165 lbs, and 30 years of age."
Koch's affidavit also summarized information concerning
recent electrical consumption at the residence -- information
Koch obtained by reviewing the residence's utility records,
which, pursuant to a landlord application for service, listed a
person named Don Wilson as the party responsible for payment:
Upon reviewing the electrical
consumption for 4618 McPhee I found the
billing in January 1993 to be for 261 KW
hours, February 1993 to be 878 KW hours, and
March to be 1184 KW hours. This increase
between the month of January and February was
a 336% increase, the increase between January
and March is a 453% increase despite the fact
that March was significantly warmer than
January.
The electrical usage records
further indicate the consumption for the
month of December 1992 to be 215 KW hours,
November to be 191 KW hours, October to be
273 KW hours.
In addition, the affidavit provided the following
information concerning "foot traffic" Koch observed two months
previously between the house at 4618 McPhee Street and another
house:
In January 1993 I was involved in a
drug investigation which centered around 841
N Bliss. The General Investigations Unit of
the Anchorage Police Dept along with the US
Army CID unit were purchasing large
quantities of marijuana at that residence.
While performing surveillance on this
residence I observed foot traffic between 841
N Bliss and 4618 McPhee.
Finally, the affidavit expressed Koch's belief, based
on the foregoing information, that "there is now a marijuana grow
operation" located at the McPhee Street residence and that Koch
expected to find at the residence numerous listed items --
including a variety of electrical appliances -- that in Koch's
experience were normally kept in connection with marijuana grow
operations.
Based on this information, Judge Motyka issued the
requested warrant. Officers executing the warrant found approxi
mately forty mature marijuana plants, together with assorted
marijuana growing equipment and paraphernalia. Lloyd admitted
living at 4618 McPhee Street and being responsible for the
marijuana, which he claimed to be growing for his personal use.
Lloyd was subsequently charged with misconduct involving a
controlled substance in the fourth degree.
Prior to trial, Lloyd moved to suppress the evidence
derived from the March 18 search warrant, claiming, among other
things, that the warrant lacked probable cause because it relied
on an informant's tip that was insufficiently corroborated.2
Judge Hunt denied Lloyd's motion, finding that, "[a]lthough this
is a very close question," sufficient corroboration had been
presented. On appeal, Lloyd renews his challenge to the
sufficiency of the warrant.
"Probable cause to issue a search warrant exists when
'reliable information is set forth in sufficient detail to
warrant a reasonably prudent [person] in believing that a crime
has been or was being committed.'" Van Buren v. State, 823 P.2d
1258, 1261 (Alaska App. 1992) (quoting Badoino v. State, 785 P.2d
39, 41 (Alaska App. 1990) (quoting Harrelson v. State, 516 P.2d
390, 396 (Alaska 1973))). We have recently summarized the law
that applies when a search warrant based on an informant's tip is
challenged for lack of probable cause:
In Aguilar v. Texas, 378 U.S. 108
(1964), and Spinelli v. United States, 393
U.S. 410 (1969), the United States Supreme
Court articulated a two-prong analysis for
determining the validity of an affidavit that
relies on a confidential informant's tip to
establish probable cause. . . . [T]he
Aguilar-Spinelli doctrine continues to govern
the determination of probable cause under
Article I, Sections 14 and 22 of the Alaska
Constitution. State v. Jones, 706 P.2d 317,
324-25 (Alaska 1985).
The Alaska Supreme Court has
described Alaska's application of the Aguilar-
Spinelli test as follows:
When a search
warrant is based on the hearsay
statement of a confidential
informant, the affiant must
establish the informant's basis of
knowledge and veracity. To
establish the informant's basis of
knowledge, the information must be
based on the informant's personal
observations, not his suspicions or
beliefs. If the affidavit lacks an
affirmative allegation of the
informant's personal knowledge,
"the facts supplied must be so
detailed as to support an inference
of personal knowledge."
Additionally, the
affiant must inform the magistrate
or judge of some of the underlying
circumstances that led the affiant
to conclude that the informant was
credible or that his information
was reliable. An informant's
veracity may be established by
demonstrating his past reliability,
or by independent police
corroboration of detailed facts in
the informant's story. The
personal identity and involvement
of the informant may also establish
his veracity. . . . Finally, an
informant's admission against his
penal interest may be sufficient to
establish his veracity in certain
circumstances.
Jones, 706 P.2d at 324-25 (citations and
footnotes omitted). In describing the
Aguilar-Spinelli test's application to Alaska
cases, our supreme court has also emphasized
that "[i]t is imperative under the Alaska
Constitution that the magistrate be presented
with adequate supporting facts so that he can
independently test the confidential
informant's basis of knowledge and veracity."
Id. at 326.
Carter v. State, 910 P.2d 619, 623 (Alaska App. 1996).
For present purposes, it is vital to add to this
summary that the existence of probable cause must be determined
exclusively from the evidence properly submitted to the issuing
magistrate; other information, known to the police but not
revealed to the issuing court, cannot be considered. State v.
White, 707 P.2d 271, 277 (Alaska App. 1985).
In the present case, Detective Koch's affidavit was
based on a report by an informant who "had seen 50-80 marijuana
plants in the [McPhee Street] house two days before." Because
Koch's affidavit made it clear that the informant purported to
speak from personal knowledge, we assume for argument's sake that
the affidavit satisfies the "basis of knowledge" prong of the
Aguilar-Spinelli test.3 The remaining prong of Aguilar-Spinelli,
which deals with an informant's credibility, is far more
troublesome here.
"Generally, the cases distinguish between two kinds of
informants: 'citizen informants' and 'police informants.'"
Effenbeck v. State, 700 P.2d 811, 813 (Alaska App. 1985).
Aguilar-Spinelli's credibility prong applies in full force to
unnamed informants from the criminal milieu. Id. at 813-14.
Distrust of police informants is founded on their tendency to
report information for pay, for immunity, or for personal
advantage or vindication; also a principal concern is the
possibility that fictitious reports from unnamed informants will
be used as a means of fabricating probable cause. Id. at 814.
Under the Aguilar-Spinelli test, the credibility of a
police informant can be established by information showing that
the informant has previously given reliable information, by
relying on a statement that is against the informant's own penal
interest, or "by corroboration of a great many details from the
informer's story." Id. (quoting 3 W. LaFave, Search and Seizure
' 9.3 at 95-96 (1978)). Although information corroborating a
police informant's tip need not be independently incriminatory,
Schmid v. State, 615 P.2d 565, 577 (Alaska 1980), it must relate
to the tip in a way that lends substantial credibility to the
report of illegality. See Clark v. State, 704 P.2d 799, 804 &
n.4 (Alaska App. 1985).
By contrast, a more relaxed rule applies "[w]hen
information is provided by a cooperative citizen, or an informant
not from the criminal milieu[,]" since "[a]n ordinary citizen who
reports a crime stands on a much different footing" than a police
informant. Erickson v. State, 507 P.2d 508, 517-18 (Alaska 1973)
(footnotes omitted). To establish the credibility of a citizen
informant, no showing of prior reliability is required; the
police need only verify "some of the details of the information."
Id. at 518.
In evaluating compliance with Aguilar-Spinelli's
credibility prong in the present case, the superior court elected
to treat the informant as a "citizen informant." On this basis,
the court decided that the corroborating information presented in
Detective Koch's affidavit was sufficient to meet the Aguilar-
Spinelli test. Lloyd argues on appeal that Koch's affidavit
contains insufficient information to support the conclusion that
the report came from a citizen informant. The state responds
that citizen informant treatment was justified because the report
was received on the police department's "Crime Stoppers line."
Whether a particular informant's credibility should be
subject to treatment under the relaxed standards governing
citizen informants or the more rigid standards applicable to
police informants depends on the extent to which the dangers
typically associated with police informants arise in a given
case. We have recognized that "[t]he distinction between a
citizen informant and a criminal informant does not turn on the
bare facts of the informant's past. Rather, . . . the
informant's status turns on the nature of the informant's
involvement with the incident being investigated and his or her
motivation for coming to the authorities[.]" Gustafson v. State,
854 P.2d 751, 756 (Alaska App. 1993) (citing Erickson, 507 P.2d
at 517). The test is a practical one, based on the totality of
the circumstances:
[T]he law examines the person's
connection to the event and his or her
probable motive for bringing the information
to the police. When a person's primary
motive is to obtain an official concession or
reap some other personal benefit, the law
requires greater corroboration of the
person's information. If, however, the
individual comes forward without concern for
personal benefit, the law requires less
corroboration.
Gustafson, 854 P.2d at 756-57.
Accordingly, to determine what standard of
corroboration applies, the issuing magistrate must realistically
assess the informant's probable motives, as they appear from the
information properly before the court. When information
concerning the informant's identity and motives identifies the
informant as the kind of person who is likely to speak the truth,
then the informant may be treated as a citizen informant whose
report is presumptively credible and requires only minimal
corroboration. However, a finding of citizen informant status
requires at least some circumstantial showing of intrinsically
trustworthy motivation. Credibility is not presumed by default:
when the information available to the magistrate does not
actually identify the informant as an apparently well-meaning
citizen, and when it otherwise sheds insufficient light on
identity and motive to dispel the underlying concerns of Aguilar-
Spinelli, the informant's status as a citizen informant cannot
simply be assumed.
In support of its argument that the informant in this
case was properly deemed a citizen informant, the state cites
Beuter v. State, 796 P.2d 1378 (Alaska App. 1990), and Effenbeck
v. State, 700 P.2d 811 (Alaska App. 1985). Beuter and Effenbeck,
however, dealt with warrantless investigative stops or limited
intrusions based on police suspicions of criminal activity. In
both cases, the police had received information through anonymous
telephone reports made in response to "Crime Stoppers"-like
programs that encouraged citizens to make anonymous reports to
the police; although Aguilar-Spinelli does not formally apply to
stop and frisk situations, we discussed the test in these cases
by analogy. We pointed out in Effenbeck, 700 P.2d at 814, that
"courts faced with anonymous informants in contexts similar to
this one have been willing to characterize the informant as a
citizen informant." Although we initially found this to be
"[s]omewhat surprising[]," we concluded upon further examination
that citizen informant status seemed justified in many such cases
because the circumstances surrounding the Crime Stoppers reports
eliminated the dangers that ordinarily require police informants
to be distrusted. Id. at 814-15.
Examination of the totality of the circumstances
surrounding the anonymous call in Effenbeck led us to find it
unlikely that the call was motivated by a desire for pay, for
immunity, or for personal advantage or vindication; we further
found that "the circumstances virtually eliminate the possibility
of police fabrication." Id. We thus concluded that the report
was sufficiently credible to support a warrantless stop based on
reasonable suspicion, particularly in light of the exigencies
that led the police to make the warrantless stop. Id. at 815.
We relied on Effenbeck to justify a warrantless stop
under comparable circumstances in Beuter, 796 P.2d at 1382.
Although we noted that "[t]he anonymous informants in this case
do not fall clearly into either of these two groups [of citizen
or police informants]," we concluded from the circumstances
surrounding the anonymous reports "that the record establishes
that the police had sufficient reasonable suspicion to justify a
minimal intrusion by having Beuter's car inspected by a drug-
detecting dog." Id. at 1382.
As can be readily seen, neither Effenbeck nor Beuter
stand for the proposition that police informants or informants of
unknown or undetermined status can automatically gain citizen
informant status by calling a Crime Stoppers number; to adopt
such a rule would simply encourage police to channel calls from
their regular informants through a Crime Stoppers line. To the
extent that these decisions are relevant to a case involving a
full search based on probable cause rather than an investigative
stop or frisk based on reasonable suspicion, both support the
conclusion we have already set forth above: that informant status
must be determined by a realistic, case-by-case assessment of the
informant's probable motives, as they appear from the information
properly before the court.
In the context of a case involving a warrant, where the
Aguilar-Spinelli analysis formally applies, this means that the
evidence actually presented to the issuing magistrate must in
itself establish informant's status as a citizen informant.
Since the issuing magistrate must independently determine
informant credibility, facts bearing on credibility must be
revealed to the magistrate before the warrant is issued; unless
they are so revealed, they cannot later be injected to justify
citizen informant status. See White, 707 P.2d at 277 (probable
cause evaluation limited to affidavit and recorded testimony
under oath before issuing magistrate).
Here, the only evidence presented to the issuing judge
concerning the status and motives of the caller who reported
Lloyd's marijuana grow was that the call was received on "the
Crime Stoppers line at the Anchorage Police Dept." No
information concerning the Anchorage Crime Stoppers program was
given to the court; nor was any information about the nature or
circumstances of the call provided. The court was not told
whether the informant was named or anonymous, whether any payment
or other incentives were asked or offered. The court had no way
of knowing if the call was recorded, and nothing before the
issuing court provided any assurance that the report could not
have been fabricated. As made clear during the pretrial hearing
on Lloyd's motion to suppress, much of this information was known
to the police and could have been presented to the judge who
issued the warrant. But it was not.
In finding that the caller qualified for citizen
informant status, and in relying on that finding to uphold the
warrant, the superior court deemed the additional information
disclosed at the suppression hearing to be significant.4 The
superior court erred in considering this information, since it
was disclosed after the fact. The question before the superior
court when it reviewed the warrant was not whether the state
could prove that the caller was a citizen informant but whether
the facts before the issuing court could justify citizen
informant status. Given the cursory nature of the affidavit in
this case, the question must be answered in the negative:
standing alone, the bare fact that the police received their
information through the Crime Stoppers line does not support an
inference that the caller was a citizen informant.
It remains to be considered whether the corroborating
evidence in this case satisfied Aguilar-Spinelli's test for
establishing the credibility of police informants. Detective
Koch's affidavit described three sets of corroborating facts.
First, the affidavit noted that Lloyd's physical appearance and
the physical appearance of the McPhee Street house matched the
caller's information. In addition, a car registered to Lloyd was
parked in front of the house. At most, however, this information
suggests that the Crime Stoppers' caller was acquainted with
Lloyd and knew where he lived. "[C]orroboration of public facts
or wholly innocuous details" cannot meet the Aguilar-Spinelli
requirement. Carter v. State, 910 P.2d at 624.
Second, the affidavit stated that in January 1993,
while maintaining surveillance over large-quantity marijuana
sales at a residence located at 841 N. Bliss, Koch had "observed
foot traffic between 841 N Bliss and 4618 McPhee." However, the
affidavit included no further information connecting the two
locations: it failed to indicate the relative location of the two
houses, the number of observations or the number of people
observed, the extent or nature of the observed activity, or any
other circumstances that could conceivably be deemed suspicious.
The affidavit's cursory mention of "foot traffic" might encompass
something as innocuous as a single sighting of a postal delivery
person walking from one house to the next, or something as
incriminating as a non-stop flow of drug-laden couriers shuttling
their wares from one drug-house to another. The affidavit
supplied no factual detail to reveal what Koch actually saw;
without this detail, the court had no way to gauge whether Koch's
observation of foot traffic belonged at one extreme of this broad
spectrum of possibilities, at the other extreme, or somewhere in
the middle.
Detective Koch may well have been convinced that the
"foot traffic" he saw had some significance. But the
significance of what Koch saw was a matter to be determined, not
by Koch, but by the judge who was called upon to issue the
warrant.5 "It is imperative under the Alaska Constitution that
the magistrate be presented with adequate supporting facts so
that he can independently test the confidential informant's basis
of knowledge and veracity." State v. Jones, 706 P.2d 317, 326
(Alaska 1985) (emphasis added). Here, the complete absence of
detail deprived the reference to "foot traffic" of any
significant corroborative value.
The third set of corroborating facts in Koch's
affidavit consisted of information concerning recent electrical
consumption at the McPhee Street house. This information,
derived from billing records for the six months immediately
preceding the search, revealed increasing electrical consumption
during the two most recently billed periods -- the periods
covered by the February and March billings. But nothing was
submitted to enable the court to make sense of this raw
statistical increase in electrical use.
The affidavit said nothing to indicate whether the
McPhee Street house was heated by electricity; it supplied no
information tying the increased electrical use to marijuana
growing activity; and it gave no baseline for average or
"normal" wintertime electrical consumption -- or fluctuation in
consumption -- in homes of comparable size. Furthermore, apart
from its conclusory mention that the billing in March increased
over billing in January despite "significantly warmer" March
temperatures, the affidavit provided nothing to suggest that the
increased use reflected in the February and March billings was
abnormal.
At best, this conclusory reference to warming
temperatures in March is of dubious value, since no information
was submitted to show that the March billing reflected March
electrical consumption. Indeed, the utility billing records
strongly suggest the contrary: the warrant itself was issued in
mid-March, and the March billing referred to in the affidavit had
been obtained some time prior to the date of issuance. Because
the March billing apparently covered electricity used some time
prior to the early-March billing,6 the affidavit's mention of
warmer March temperatures had little bearing on the issue of
probable cause. In any event, the affidavit said nothing to
indicate that the McPhee Street house was even occupied during
the early months of winter, when electrical use was low;
increased consumption thus might simply have reflected the fact
that a tenant had moved into the residence.7
In Carter v. State, 910 P.2d at 625-26, we emphasized
that courts determining probable cause to search for evidence of
marijuana growing operations must exercise caution in attributing
significance to records of electrical consumption, even when
background evidence has been presented to explain the records and
to show that the amount or pattern of consumption they disclose
is unusual or "consistent with marijuana growing." We noted in
Carter that "courts in other jurisdictions have tended to find
evidence of unusual electrical consumption to be significant to
the overall determination of probable cause only if other solid
facts have been presented to the issuing magistrate to indicate
that criminal activity is afoot or to eliminate legitimate
explanations for the unusual consumption." Id. at 626.
Carter, of course, is readily distinguishable from the
present case. For in Carter we considered whether records of
electrical consumption in themselves demonstrated probable cause
when informants' tips proved wholly conclusory; here we consider
the use of electrical records for the more modest purpose of
corroborating the credibility of an informant who provides a non-
conclusory tip. We do not doubt that records of electrical
consumption can be of great benefit in enabling the police to
establish informant credibility in cases like Lloyd's. But to be
of benefit, the records must be accompanied by information that
places them in context and lends them meaning. Devoid of factual
context or explanation, a mere showing of increased electrical
consumption cannot satisfy Aguilar-Spinelli's corroboration
requirement.
We conclude that the credibility of the informant in
this case was not established "by independent police
corroboration of detailed facts in the informant's story." State
v. Jones, 706 P.2d at 325. Since no other basis was offered to
the issuing court to satisfy Aguilar-Spinelli's credibility
prong, we further conclude that reliance on the informant's tip
as a basis for probable cause amounted to error. Accordingly, we
hold that the superior court erred in denying Lloyd's motion to
suppress.
The conviction is REVERSED.
_______________________________
1. In entering his plea, Lloyd reserved his right to appeal this issue, which
is dispositive. See Oveson v. Anchorage, 574 P.2d 801, 803 n.4 (Alaska
1978).
2. In connection with the March 18 warrant Lloyd also claimed that Detective
Koch had omitted material evidence by failing to submit electrical
consumption records showing that, during the seven months preceding October
1992, the McPhee Street house had been billed for using amounts of
electricity substantially similar to the amounts reflected in the February
and March 1993 billings -- amounts substantially greater than those
reflected in the billings for the period between October 1992 and January
1993, which Koch had submitted. After an evidentiary hearing, the superior
court determined that the alleged omissions had occurred and were
material, but that they were made in good faith, and neither recklessly nor
intentionally. Accordingly, the court declined to order suppression on
this ground. See State v. Malkin, 722 P.2d 943 (Alaska 1986). Lloyd does
not challenge this ruling.
3. Lloyd argues that when an informant purports to have personally observed
drugs or items that an average person might not be familiar with or readily
able to identify, the basis of knowledge prong of Aguilar-Spinelli should
be construed to require the affidavit to recite sufficient facts to provide
the issuing magistrate with a basis for concluding that the informant was
capable of reliably making the disputed observation. Although Professor
LaFave endorses Lloyd's proposed interpretation of Aguilar-Spinelli, this
interpretation appears to represent a minority view among courts passing on
the issue. See generally 2 Wayne R. LaFave Search and Seizure ' 3.3(d) at
146-50 (3d ed. 1996). We are inclined to think that the general appearance
of marijuana plants is a matter of relatively widespread knowledge in
contemporary Alaska society and that as a practical matter, when an
otherwise trustworthy informant purports to identify personally observed
plants as marijuana, there may be little reason to doubt the informant's
ability to do so reliably. Nevertheless, our disposition of this case
makes it unnecessary to decide this issue.
4. For example, the superior court's order denying Lloyd's motion to suppress
found it significant to the issue of citizen informant status that "it is
documented that an anonymous caller telephoned the Crime Stoppers hot
line[,]" that "there is an actual recorded tip," and that the caller
"assert[ed] a desire to remain anonymous[.]" None of these facts were
before the issuing court.
5. In its brief, the state repeatedly refers to the portions of the supporting
affidavit describing Koch's extensive training and experience in drug
enforcement, suggesting that Koch's expertise has some special relevance.
This suggestion misses the point that probable cause is to be determined by
the issuing magistrate, not the police. Koch did not purport to rely on
his expertise to draw any particular conclusions from the "foot traffic" he
observed in January 1993; in fact, his affidavit did not assert that he
attributed any significance at all to the foot traffic.
6. Cf. Carter v. State, 910 P.2d at 622 n.5 (testimony of utility employee
indicating that monthly billings -- of a different utility than that
involved here -- actually reflected consumption occurring during the
preceding month).
7. In this regard it is worthwhile emphasizing that Koch's affidavit indicated
that utilities were listed to a person other than Lloyd who had submitted a
landlord application for service, thus making it likely that the McPhee
Street residence was a rental property. The state asserts that the fact
that the house was occupied in January can be inferred from Koch's
observation of "foot traffic" between the McPhee and N. Bliss Street
residences during that month. As indicated by our prior discussion in the
text of this decision, however, information in the affidavit concerning the
"foot traffic" observation was so sketchy and devoid of factual detail as
to preclude it from being given any particular significance. Moreover, any
logical inference as to occupancy is complicated by the apparent
uncertainty as to what period of actual consumption is reflected in the
month of billing. If, as seems to be the case, the January billing
reflects actual December consumption, then the relatively low consumption
reflected in the January bill would suggest vacancy in December, when no
observations of "foot traffic" were made.
