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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN P. STAM, )
) Court of Appeals No. A-5868
Appellant, ) Trial Court No. 4FA-94-3884 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1489 - October 11, 1996]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Ralph R. Beistline, Judge.
Appearances: Dick L. Madson, Law Offices of
Dick L. Madson, Fairbanks, for Appellant.
Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
John P. Stam pleaded no contest to two counts of fourth-
degree misconduct involving a controlled substance (possession of
marijuana with intent to deliver, and possession of more than one
pound of marijuana), AS 11.71.040(a)(2) and (a)(3)(F). When Stam
entered his pleas, he preserved an issue for appeal under Cooksey
v. State, 524 P.2d 1251 (Alaska 1974): whether the search warrant
issued for his home was supported by probable cause. We conclude
that the warrant was not supported by probable cause, and we
therefore reverse Stam's convictions.
On July 5, 1994, a police informant (designated "MS94-5")
telephoned the Fairbanks office of the Statewide Drug Enforcement
Unit (SDEU) and told an officer that Stam was growing marijuana on
his homestead north of Galena. Two days later, MS94-5 again
contacted the Fairbanks SDEU office; on this occasion, he spoke with
Investigator Frank Stepp. MS94-5 repeated his earlier assertion
that Stam was growing marijuana, but this time he supplemented the
assertion with more information concerning Stam.
MS94-5 told Stepp that Stam lived on a 160-acre homestead
located on the north side of the Yukon River, approximately 35 miles
upstream from Galena. MS94-5 provided Stepp with an extremely
detailed description of Stam's property.
MS94-5 declared that he (EN1) had been to Stam's homestead
a few days earlier. MS94-5 said that there were approximately
ninety mature marijuana plants growing on Stam's property, with
another ninety to one hundred starter marijuana plants growing
indoors. According to MS94-5, Stam grew the marijuana indoors
during the winter, and he grew the plants both outside and indoors
during the summer þ although the outdoor plants were usually covered
at night for protection against the cold.
MS94-5 stated that Stam bragged about selling marijuana
for a living for a number of years. MS94-5 said that, even though
Stam was a fisherman, Stam was not fishing that year because he was
making enough money selling marijuana. He also said that Stam had
a "stash" of harvested and dried marijuana, and that Stam had been
making sales of marijuana from this stash while MS94-5 was at the
homestead. According to MS94-5, Stam stated that he intended to
build an underground structure to house his indoor marijuana
cultivation.
Following up on MS94-5's information, Investigator Stepp
confirmed the location of Stam's property by speaking to Trooper
Barrick in Galena and to Fish and Wildlife Officer Ken Piepgrass.
Trooper Barrick told Stepp that, according to his maps, Stam's
property was located approximately 35 miles upstream from Galena.
Both Barrick and Piepgrass confirmed MS94-5's description of the
layout of the buildings on Stam's property. In addition, Trooper
Barrick informed Stepp that he had previously received information
that Stam was growing marijuana on his homestead. Finally, Officer
Piepgrass told Stepp that, although Stam had used a fish wheel in
the past, there was no sign of a fish wheel in the river at Stam's
homestead that season.
On July 8, 1994, Investigator Stepp applied for a search
warrant for Stam's property. In his application for the warrant,
Stepp presented all the information described above. He addition-
ally noted that MS94-5 denied having a criminal record, and that a
search of criminal records on the APSIN computer system confirmed
MS94-5's statement.
Based on Stepp's affidavit, District Court Judge Mark I.
Wood issued the requested search warrant. The warrant was executed
on July 14, 1994; the police discovered and seized 219 live
marijuana plants, other marijuana plants that had already been
harvested and were drying, marijuana seeds, and cultivation records.
The search warrant for Stam's property was based on the
hearsay information contained in Investigator Stepp's affidavit.
This being the case, we must use the Aguilar/Spinelli test to
evaluate the information that Investigator Stepp relied on. State
v. Jones, 706 P.2d 317, 320-22 (Alaska 1985); see Spinelli v. United
States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar
v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The
Aguilar/Spinelli test requires us to assess whether Investigator
Stepp's affidavit contains sufficient information for the issuing
magistrate to independently evaluate (1) whether MS94-5's informa-
tion was obtained in a reliable fashion and (2) whether MS94-5 was
a credible source of information. Jones, 706 P.2d at 320-21.
Regarding the first prong of the test þ the basis of MS94-
5's information þ it is clear that MS94-5 claimed to have obtained
most of his information either first-hand or in direct conversation
with Stam. Stam accordingly concedes that Stepp's affidavit meets
the first prong of the Aguilar/Spinelli test. Stam argues, however,
that there was insufficient information in Stepp's affidavit to
allow the magistrate to determine MS94-5's credibility.
The credibility of an informant can be established by
evidence that the informant has given reliable information in the
past, or by independent investigation that corroborates the
informant's story, or by evidence that the informant is among those
persons whom the courts presume to be credible (generally, police
officers and "citizen informants"). Schmid v. State, 615 P.2d 565,
576 (Alaska 1980); Gustafson v. State, 854 P.2d 751, 756-57 (Alaska
App. 1993); Effenbeck v. State, 700 P.2d 811, 813 (Alaska App.
1985).
In the present appeal, the State argues that MS94-5 must
be presumed to be a citizen informant because "Stam presented no
evidence tending to establish that [MS94-5] was anything other than
a citizen informant". The State's argument stands the Aguilar/
Spinelli test on its head. It was not Stam's burden to prove MS94-
5's lack of credibility; rather, it was the State's burden to show
that MS94-5 was a credible informant. In particular, if MS94-5 is
to be treated as a citizen informant, that citizen-informant status
must be demonstrated by the information presented to the magistrate
in the search warrant application. Lloyd v. State, 914 P.2d 1282,
1287-88 (Alaska App., 1996).
Generally speaking, an informant's status as either a
"police informant" or a "citizen informant" "turns on the nature of
the informant's involvement with the incident being investigated and
his or her motivation for coming to authorities." Gustafson, 854
P.2d at 756. Stepp's affidavit does not provide much information
about MS94-5. It appears that MS94-5 is a friend or associate of
Stam's, but little else is revealed. Stepp's affidavit affirmative-
ly asserts that MS94-5 has no criminal record, but the affidavit
gives no information bearing on MS94-5's involvement in the case or
MS94-5's possible motivation for coming forward.
The fact that MS94-5's identity is not revealed in Stepp's
affidavit (despite Stepp's statement that he "is personally aware
of MS94-5's identity") raises the possibility that MS94-5 is a
"protected police 'stool pigeon', a person whose indiscretions are
tolerated by the police ... in exchange for information and leads".
Wayne R. LaFave, Search and Seizure (3d ed. 1996),  3.3(c), Vol.
2, p. 126. Indeed, the second paragraph of Stepp's affidavit
strongly suggests that MS94-5 is a traditional police informant:
[P]art of [my] responsibilities [as an officer
working for the Statewide Drug Enforcement
Unit] is to coordinate confidential informants
during the normal course of investigations[.]
... One such informant is designated as MS94-
5.
For these reasons, we conclude that MS94-5 must be treated as a
"police informant" rather than as a "citizen informant". The
question then is whether Stepp's affidavit provides sufficient
reason to believe that MS94-5 is a credible person.
Stepp independently corroborated MS94-5's information
concerning the location and physical layout of Stam's property.
However, our supreme court has held that corroboration of a police
informant's description of a suspect's residence is not sufficient
to establish the police informant's credibility. Jones, 706 P.2d
at 325 ("[M]ere confirmation that Jones actually lived in the
apartment indicated by [the informant] does not qualify as
independent corroboration by the police."); see Carter v. State, 910
P.2d 619, 624 (Alaska App. 1996) ("[C]orroboration of public facts
or wholly innocuous details" cannot meet the Aguilar/Spinelli
requirement); see also United States v. Leake, 998 F.2d 1359, 1365
(6th Cir. 1993) (when an anonymous informant reported seeing a large
amount of marijuana in the suspect's home, mere corroboration of the
informant's description of the suspect's house and address was not
sufficient); United States v. Mendonsa, 989 F.2d 366, 369 (9th Cir.
1993) ("mere confirmation ... that a suspect lives at a particular
location or drives a particular car does not provide any indication
of criminal activity").
The State points out that the information obtained from
Fish and Wildlife Officer Piepgrass appears to corroborate MS94-5's
assertion that Stam no longer needed to fish because he was making
so much money selling marijuana. According to Stepp's affidavit,
Piepgrass told Stepp that "there was no sign of a fish wheel ... at
Stam's homestead on the river this season" and that Stam "had, in
the past, used a fish wheel".
Evidence that there was no fish wheel at Stam's homestead
is probative only to the extent that the evidence concurrently
establishes good reason to expect a fish wheel. Stepp's affidavit
contains only the unadorned assertion that Stam had used a fish
wheel at some unspecified time in the past. The affidavit contains
no assertion that Stam formerly made his living by catching fish or
that Stam habitually ran a fish wheel each summer. Without such
evidence, MS94-5's assertion that Stam was not running a fish wheel
amounted to little more than another of the publicly observable
facts about the layout of Stam's property. Based on the meager
contents of Stepp's affidavit, we conclude that the absence of a
fish wheel at Stam's homestead provided only minimal corroboration
of MS94-5's credibility.
Finally, the State relies on the fact that Trooper Barrick
informed Stepp that he too had "received previous intelligence ...
that John Stam was growing marijuana on the homestead at that
location". We have recognized that the receipt of identical
information from independent sources is a factor that can be used
to corroborate an informant's tip. Hugo v. State, 900 P.2d 1199,
1202 (Alaska App. 1995); Lewis v. State, 862 P.2d 181, 186 n.5
(Alaska App. 1993) ("For purposes of the Aguilar/Spinelli doctrine,
the veracity of a statement given by a police informant whose
reliability is unknown may be established by a corroborating
statement from another informant: Cross-corroboration among infor-
mants is a well-accepted method of demonstrating the validity of the
information given.").
But in this case, Stepp's affidavit contains only a bare
assertion that Trooper Barrick had, at some time in the past,
received another report that Stam was growing marijuana at his
homestead. Stepp's affidavit provides no details to flesh out this
conclusory assertion. The affidavit describes Barrick's information
only as police "intelligence". There is no indication of its
source, no indication of the time or circumstances under which it
was received.
The Aguilar/Spinelli rule is designed to protect citizens
against the issuance of search warrants that are based solely on the
uncorroborated assertions of police informants. This protection
would mean little if a police informant could be deemed "corroborat-
ed" based merely on police assertions that they had heard similar
rumors in the past. In the present case, the judge who issued the
search warrant was given no details of the police "intelligence",
nor did Stepp's affidavit provide any reason to credit this
"intelligence".
In conclusion, we find that Officer Stepp's affidavit
failed to establish probable cause for the issuance of the search
warrant. The judgement of the superior court is therefore REVERSED.
ENDNOTES:
1. The record does not reflect MS94-5's sex. The use of the
pronoun "he" is arbitrary.
