Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Wilson v. State (12/26/2003) ap-1910
Wilson v. State (12/26/2003) ap-1910
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
TROY A. WILSON, )
) Court of Appeals No.
A-8377
Appellant, )
Trial Court No. 1PE-01-076 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. ) [No.
1910 December 26, 2003]
)
Appeal from the Superior Court, First Judi
cial District, Petersburg, Michael A.
Thompson, Judge.
Appearances: William B. Carey, Anchorage,
for the Appellant. Terisia K. Chleborad,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
On February 5, 2001, the Petersburg district court
issued a warrant authorizing the search of Troy A. Wilsons
residence for evidence of fourth-degree controlled substance
misconduct under AS 11.71.040(a)(2) possession of one ounce or
more of marijuana for purposes of distribution. The question
presented in this appeal is whether the information presented in
the search warrant application established probable cause for the
issuance of this warrant.
When a search warrant application rests on hearsay
information, the State must establish (1) that each of its
hearsay informants is generally a credible source of information,
and (2) that each informant obtained their present information in
a reliable way.1 As we explain in more detail below, the search
warrant application in Wilsons case rested on information
supplied by three informants. Of these three, the State
established the credibility of only one. This one reliable
informant had hardly any personal knowledge of the alleged
incriminating facts. Instead, the main incriminating information
was supplied by the two informants of unproven credibility.
Moreover, with regard to these two informants allegations, the
State failed to establish that the informants had personal
knowledge of many of their incriminatory assertions. We
therefore conclude that the information presented to the district
court failed to establish probable cause for the issuance of the
warrant.
Details of the search warrant application
Petersburg Police Officer Gregg Siera applied
for the search warrant and supplied all of the
testimony in support of the search warrant application.
He purported to rely on information he received from
two police informants, N-788 and GS01-01. But, as will
become clear in the next few paragraphs, Officer Siera
actually relied on three informants: N-788, GS01-01,
and an unnamed friend of N-788. Siera apparently was
aware of the identities of N-788 and GS01-01, but he
had absolutely no information about this unnamed
friend.
Siera told the Petersburg magistrate that, on
January 27, 2001 (i.e., nine days before the search
warrant application), he received a report from N-788.
Siera testified that N-788 was a police informant who
has proven to be reliable in the past.
N-788 told the police that a friend of his
had purchased a quarter pound of marijuana from Troy
Wilson for $900. But N-788 did not disclose any
information about this friend neither his name nor
anything else about him.
Moreover, N-788 did not witness this sale
(although his friend apparently showed him a supply of
marijuana). Thus, N-788 was mainly reporting what his
unnamed friend told him.
In addition, Siera did not know when this
alleged sale of marijuana took place. Under
questioning from the magistrate, Siera asserted that N-
788 contacted me shortly after the fact. But the fact
that Siera is referring to must have been the unnamed
friends statement to N-788 that he had purchased
marijuana because N-788 said that he did not witness
the sale. Even if we assume that N-788 made some
statement to Siera concerning when the alleged sale
took place, it is clear that N-788s information was
obtained from his unnamed friend. In other words, any
assertion about the timing of the purchase rests
entirely on the unnamed friends credibility.
N-788 told Siera that he himself had
purchased marijuana from Wilson in the past. But Siera
explained that N-788s purchase of marijuana occurred
more than a year before.
Siera added one more incriminating assertion:
he told the magistrate that, according to N-788, Wilson
currently possessed approximately fourteen pounds of
marijuana at his residence. But, again under
questioning from the magistrate, Siera conceded that he
had no idea how N-788 knew this. Siera told the
magistrate, I dont know if the [unnamed] friend told N-
788 that, or if N-788 ... talked with Wilson. I dont
know how N-788 came by that information.
Siera attempted to bolster N-788s report with
information obtained from another police informant,
GS01-01.
Siera testified that, on February 5, 2001
(i.e., the day of the search warrant application, and
nine days after Siera received N-788s report), GS01-01
reported that he had heard that a man named T.R. Kito
had marijuana for sale, and that Kito had obtained this
marijuana from Wilson.
But when the magistrate asked Siera how long
ago it was that GS01-01 spoke to Kito, Siera responded
that he did not know whether GS01-01 had ever spoken to
Kito. Rather, GS01-01 had merely heard within the
previous several days that Kito had marijuana for sale,
and that Kitos supplier was Wilson. Siera conceded
that he had no idea how GS01-01 heard that Kito had
marijuana for sale, or how GS01-01 heard that Wilson
was the one who sold the marijuana to Kito.
According to Sieras testimony, GS01-01
reported that, approximately one month before
(presumably in late December 2000 or early January
2001), GS01-01 had spoken personally to Wilson, and
Wilson had told GS01-01 that he was about to receive
some marijuana and [that he] would be in the business
of distributing it. But Siera admitted to the
magistrate that GS01-01 was an untested informant.
That is, Siera did not know whether GS01-01 was a
credible source of information.
Why we conclude that this information fails to satisfy
the Aguilar-Spinelli test
As we explained in the introduction to this
opinion, when the State applies for a search warrant
and bases its application on hearsay, the State must
establish (1) that each of its hearsay informants is
generally a credible source of information, and (2)
that each informant obtained their present information
in a reliable way. In this case, the States search
warrant application rested on information provided by
three informants: GS01-01, N-788, and N-788s
unidentified friend.
Of these three, N-788 was known to the police
to be a reliable informant i.e., a generally credible
source of information. GS01-01 was also apparently
known to the police, but his credibility was untested.
And with regard to N-788s unidentified friend, the
police had absolutely no information about him (or her)
other than N-788s assertion that N-788 had seen his
friend in possession of a substantial amount of
marijuana. This tended to show that the friend was a
member of the criminal milieu, thus obliging the State
to affirmatively establish the unidentified friends
credibility.2
The States problem in this case is that their
one credible informant, N-788, had hardly any first-
hand knowledge of Wilsons alleged criminal activities.
N-788 had personally purchased an unspecified amount of
marijuana from Wilson, but this was at least one year
before.
The States main allegation against Wilson was
that Wilson had recently sold four ounces of marijuana
to N-788s unidentified friend for the sum of $900.
N-788 claimed to have recently seen his friend in
possession of marijuana, but N-788 had no first-hand
knowledge of how or when his friend obtained the
marijuana. That is, N-788 did not personally know the
identity of the person who supplied the marijuana, nor
did N-788 know the purchase price or the date of the
purchase. Indeed, N-788 apparently had no personal
knowledge of whether his friend obtained the marijuana
from one supplier or two or three. In short, all of
the pertinent information about the alleged sale came
from N-788s unidentified friend.
The State argues that the unidentified friend
should be deemed a credible informant because the
friends statement to N-788 was against his (or her)
penal interest. The State argues that, given the
amount of marijuana involved, it is reasonable to
assume that N-788s unidentified friend was a marijuana
dealer. Thus, the State continues, when N-788s friend
told N-788 about having recently purchased four ounces
of marijuana, the friend would have perceived this
statement as directly contrary to the friends own
interests.
In State v. Bianchi, 761 P.2d 127, 130-31
(Alaska App. 1988), we accepted the States argument
that an informants credibility could be bolstered by
proof that their statements were against their penal
interest. But the facts of Bianchi were quite a bit
different from the present case. The identity of the
drug purchaser / informant in Bianchi was known to the
police and revealed to the magistrate. In addition,
the informant provided a detailed account of her
dealings with the suspected drug seller. But most
important, her confessions of drug purchases and drug
possession were made to the police. When we concluded
that these statements were presumptively credible, we
relied on the assumption that a person facing criminal
charges for drug possession would not knowingly mislead
the authorities about the source of the drugs since
the authorities could retaliate if they later
discovered that the persons account was knowingly
false. Bianchi, 761 P.2d at 131.
In other words, the rationale of Bianchi was
not simply that the informants statements were against
her penal interest, but also that the informant knew
that she might face repercussions if her statements to
the police should prove to be knowingly false.
Here, the statements in question were made
privately to a friend. Indeed, the record shows that N-
788 was a good friend to this unidentified person
because even though N-788 was a police informant whose
task was to alert the police to drug crimes, and even
though N-788s unidentified friend purportedly possessed
a substantial amount of marijuana (a sufficient amount
for the friend to undertake sales of his or her own), N-
788 would not disclose his friends identity to the
police.
This fact substantially undercuts the States
assertion that the unidentified friend must have known
that the statements about the marijuana purchase could
subject him (or her) to criminal penalties. And the
second Bianchi factor the speakers knowledge that
making false statements about the source of the
marijuana could lead to adverse legal consequences is
completely lacking.
Indeed, there is nothing in the record to
rebut the possibility that the unidentified friend was
in the business of selling marijuana, that the friend
obtained the marijuana from someone other than Wilson,
but that the friend nevertheless intended for N-788 to
go to the police with the accusation against Wilson so
that a potential competitor might be locked away in
jail. Under this scenario, the unnamed friends
involvement tends to undercut N-788s own credibility
because N-788 obviously tailored his report to the
police so as to protect the anonymity of his friend.
The State argues, in the alternative, that N-
788s unidentified friends statements about purchasing
marijuana from Wilson were independently corroborated
by information that the police received from the
untested informant, GS01-01.
As explained above, GS01-01 told the police
that, approximately one month before Siera applied for
the search warrant (i.e., in late December 2000 or
early January 2001), Wilson told GS01-01 that he was
about to receive some marijuana and [that he] would be
in the business of distributing it. This information
meets the first or reliability prong of the Aguilar-
Spinelli test (i.e., it was obtained first-hand), but
the State offered no evidence on the second prong of
the Aguilar-Spinelli test (i.e., that GS01-01 was a
credible source of information).
The State asserts that GS01-01s credibility
is established by the corroborating fact that, in early
February (that is, at about the time that Wilson said
he would be receiving the marijuana), GS01-01 heard
that Wilson had sold marijuana to T.R. Kito. The
problem with this argument is that GS01-01 only heard
this alleged fact. It is utter hearsay. Moreover,
Siera conceded that he had no idea who the source of
this hearsay was.
The State alternatively asserts that GS01-01s
credibility was established by the corroborating fact
that, in early February (that is, at about the time
that Wilson said he would be receiving the marijuana),
Wilson sold marijuana to N-788s unidentified friend.
But again, the fact that Wilson sold marijuana to N-
788s unidentified friend is only a hearsay allegation
and the source of the hearsay is a person whose
identity is completely unknown and whose credibility is
unproven.
N-788 (whose credibility was established) did
not personally witness the sale. N-788 heard his
friend say that he or she had purchased marijuana from
Wilson, and N-788 personally observed that his friend
was in possession of marijuana. Siera testified that
N-788 promptly reported these personal observations to
the police. But this only proves the approximate
timing of when N-788 was told about the purported sale.
It does not prove either the occurrence of the sale, or
(if the sale did indeed occur) the identity of the
seller, or (if the seller was indeed Wilson) the timing
of the sale. For all of these details, the magistrate
was forced to rely on the unidentified friends
uncorroborated statement.
Finally, the State argues that even if its
main allegations against Wilson rested on the untested
assertions of the two informants (GS01-01 and N-788s
unidentified friend) whose credibility was unproven,
these incriminating assertions should nevertheless be
deemed corroborated because the accounts of the two
informants dovetail so well. We disagree.
It is true that [c]ross-corroboration among
informants is a well-accepted method of demonstrating
the validity of the information given.3 Thus, probable
cause might be established in a case where two
informants whose credibility was unproven nevertheless
provided detailed first-hand accounts that were in
substantial agreement. But probable cause can not be
established by repetition of ... conclusory accusa
tion[s].4
Here, the State rests its case on two
unelaborated accusatory statements, each made by a
different informant whose credibility is unproven and
whose motives are unknown. We conclude that this is
insufficient to warrant a court-sanctioned invasion of
a citizens home under the search and seizure clause of
our state constitution (Article I, Section 14). The
district court should not have issued this search
warrant, and the evidence seized under the warrant must
be suppressed.
Afterword
Although we invalidate the search warrant
issued for Wilsons residence, we nonetheless wish to
commend the Petersburg magistrate for her careful
consideration of the search warrant application. Siera
originally applied for the search warrant based solely
on an affidavit. Magistrate Darlene Whitethorn
immediately recognized the deficiencies in the
affidavit and required Siera to supplement his
application with testimony. During this testimony,
Magistrate Whitethorn asked probing questions and
repeatedly required Siera both to clarify his factual
allegations and to specify the source of those
allegations. Obviously, we disagree with the
magistrates ultimate conclusion regarding the existence
of probable cause for the warrant. But disagreement
between appellate judges and trial judges is
inevitable. What is important is that Magistrate
Whitethorn conscientiously scrutinized the search
warrant application using the Aguilar-Spinelli analysis
thus fulfilling her two-fold duty to aid societys
legitimate law enforcement efforts while at the same
time protecting citizens from unwarranted government
intrusion into their homes and privacy.
Conclusion
The judgement of the superior court is
REVERSED.
_______________________________
1 See State v. Jones, 706 P.2d 317, 324-25 (Alaska 1985)
(holding that, as a matter of state law, the Aguilar-Spinelli
test governs the evaluation of hearsay information offered to
support a search or seizure). The Aguilar-Spinelli test is
derived from two decisions of the United States Supreme Court:
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). This test requires that, for each
hearsay informant, the government must establish (1) the basis of
the hearsay informants knowledge and (2) the hearsay informants
credibility. See State v. Jones, 706 P.2d at 320.
2 See Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment (3rd ed. 1996), 3.3(a), Vol. 2, pp. 88-89.
See also State v. Jones, 706 P.2d at 324.
3 Ivanoff v. State, 9 P.3d 294, 300 (Alaska App. 2000).
4 Ivanoff, 9 P.3d at 300.
