Opinion
Court of Appeals No. A-10025.
December 31, 2008.
Appeal from the Superior Court, Third Judicial District, Kodiak, Joel H. Bolger, Judge, Trial Court No. 3KO-06-00578 CR.
Alan L. Schmitt, Jamin Schmitt St. John, Kodiak, for the Appellant. Kenneth M. Rosenstein and Eric Ringsmuth, Assistant Attorneys General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION AND JUDGMENT
Bobbi Hutcherson entered a Cooksey plea of no contest to three counts of misconduct involving a controlled substance in the fourth degree, a class C felony. The charges arose when the police executed a search warrant on Hutcherson's home and discovered a marijuana grow operation. In her Cooksey plea, Hutcherson reserved the right to appeal Superior Court Judge Joel H. Bolger's decision denying her motion to suppress the evidence seized by the police pursuant to the search warrant. Hutcherson contends that the search warrant was not supported by probable cause because the application relied on the hearsay statements of a police informant whose reliability was not established under Aguilar-Spinelli. We agree with Hutcherson and reverse her convictions.
AS 11.71.040(a)(2); AS 11.71.040(a)(5); AS 11.71.040(a)(3)(G).
Factual and procedural background
On September 11, 2006, Deputy Magistrate Suzanne Cowley issued a warrant to search Hutcherson's home. Deputy Magistrate Cowley's determination of probable cause was based solely on an affidavit submitted by Detective Daniel Olson of the Kodiak Police Department. Police executing the search warrant found marijuana and marijuana plants in Hutcherson's home. The State charged Hutcherson with four counts of misconduct involving a controlled substance in the fourth degree. Hutcherson moved to suppress the evidence and dismiss her indictment, claiming that "the search warrant was based upon information from criminal informants whose reliability was not established on the record in violation of the Fourth Amendment to the United States Constitution and Art. 1, § 14 of the Alaska Constitution."
Judge Bolger denied Hutcherson's motion to suppress. Hutcherson then entered a Cooksey plea of no contest to three of the counts, reserving her right to appeal Judge Bolger's denial of her motion to suppress.
Alaska law applicable when a search warrant application rests upon information from a hearsay informant
Under Alaska law, when a search warrant application rests upon information from a hearsay informant, the State must establish in the application that the hearsay informant obtained the information presented in the warrant in a reliable way and, in addition, that the hearsay informant was a credible source of information. The leading Alaska case is State v. Jones, where the Alaska Supreme Court decided to retain the Aguilar-Spinelli test rather than adopt the "totality of the circumstances" approach set out in Illinois v. Gates.
State v. Jones, 706 P.2d 317, 324-25 (Alaska 1985); Wilson v. State, 82 P.3d 783 (Alaska App. 2003).
462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). See Jones, 706 P.2d at 322-24 for a discussion of the Alaska Supreme Court's rationale for retaining the Aguilar-Spinelli test.
The State can establish that the hearsay informant obtained the information in a reliable way either by showing that the information was based on the informant's personal observations or by presenting facts supplied by the informant that are so detailed that the magistrate could reasonably infer that the information was based on personal knowledge. In Hutcherson's case it is clear that the hearsay informant's statements, if believed, are sufficiently detailed to establish the informant's personal knowledge of the marijuana grow operation in Hutcherson's residence.
Jones, 706 P.2d at 324.
The issue in Hutcherson's case is whether the hearsay informant, D06-2, was a credible source of information. When a hearsay informant is a police informant, as in the present case, the State can establish the informant's credibility by: (1) establishing the past reliability of the informant; (2) demonstrating that the informant's statements were against his or her own penal interest; or (3) showing that the police independently corroborated the informant's information. The search warrant affidavit
Id. at 325.
Here, the State argues that it established D06-2's credibility through independent corroboration. More specifically, the State argues that the hearsay statements of another police informant, Julian Gutierrez, cross-corroborated the statements made by D06-2.
As we have previously stated, the application for the search warrant in this case was supported solely by the affidavit of Detective Olson, who was assigned to the Drug Enforcement Unit of the Kodiak Police Department. According to Detective Olson's affidavit, D06-2 was a police informant with a prior record of misdemeanor convictions who had pending class C felony and misdemeanor charges. D06-2 was working for law enforcement "for consideration to be given [to] D06-2['s] . . . pending felony and misdemeanor charges." D06-2 had been informed that the information D06-2 provided needed to lead to arrests or the granting of search warrants for this consideration to be given.
According to Detective Olson's affidavit, on September 7, 2006, D06-2 provided information about Bobbi Jean Hutcherson, who lived at 1010 Sargent Creek Road in Kodiak. D06-2 was a drug user who claimed to have bought marijuana from Hutcherson at her residence twenty-five to thirty-five times over the past two years. D06-2 reported personally seeing Hutcherson "sell marijuana to between seventy-five and one hundred teenage kids, at her residence." D06-2 reported having heard that Hutcherson sold marijuana in Kodiak bars, although D06-2 had not personally witnessed this.
D06-2 claimed to have been at Hutcherson's residence at 1010 Sargent Creek Road on September 6, 2006. D06-2 described personally having seen approximately three and one-half pounds of processed marijuana in various-sized bags. D06-2 also described a marijuana grow operation with sophisticated and upgraded equipment. D06-2 described Hutcherson's house; the police corroborated that Hutcherson lived at that address.
As we have previously stated, there is no question that D06-2's information, if believed, was based on personal observation. The question is whether the State established that D06-2 was a credible source of information. The State contends that it established D06-2's credibility through the hearsay statements of another police informant, Julian Gutierrez.
According to Detective Olson's affidavit, in March of 2005, Gutierrez was working as an unpaid informant for the Kodiak Police Department with the hope of obtaining favorable treatment on pending felony drug charges. Gutierrez "provided drug information on numerous persons in the Kodiak area," but "subsequently declined to participate as an informant."
Detective Olson's affidavit provided the following information about Gutierrez:
On 2/27/2005, Gutierrez stated he was at the BB Bar and Laura Korn told him Bobbi Hutcherson was growing some "Killer" weed. Korn showed the marijuana to Gutierrez and said she got it from Bobbi Hutcherson. Later that same day, Gutierrez said Hutcherson brought a Tupper-ware container into the bar which was full of fresh marijuana bud. Gutierrez heard Hutcherson say she was growing it, and would have a lot more coming down.Analysis
The State contends that these statements from Gutierrez adequately corroborated D 06-2's statements, thereby establishing D06-2's credibility. We conclude that Gutierrez's statements did not adequately corroborate D06-2's information.
The affidavit sets out the pressures under which D06-2 and Gutierrez were operating. Both informants were facing criminal charges and were hoping that their cooperation would be rewarded with leniency. D06-2 was told that the information provided needed to lead to search warrants or arrests, and Gutierrez was likely operating under the same condition.
According to the affidavit, D06-2 had provided information that led to three other drug-related search warrants. But the affidavit does not explain whether the search warrants resulted in any seizures of controlled substances, arrests, or criminal convictions. Similarly, although the affidavit asserts that Gutierrez supplied some information about drug activity in Kodiak, the affidavit states that Gutierrez ultimately "declined to participate as an informant," and it does not allege that any of Gutierrez's information turned out to be accurate.
We further note that even though D06-2 asserted D06-2 had personally observed Hutcherson sell marijuana to between seventy-five and one hundred teenagers at her residence, the police were apparently unable to independently corroborate any of these alleged sales or any other aspect of this report. Instead, they attempted to corroborate D06-2's statements with the statements of another questionable informant, Gutierrez.
The State points out that "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." D06-2 gave a detailed description of Hutcherson's marijuana grow operation. Gutierrez described an incident where, almost two years previously, he saw a person he identified as Hutcherson with a Tupperware container full of fresh marijuana bud. Gutierrez said he heard Hutcherson say that she was growing marijuana and would soon have a lot more. Therefore, both D06-2 and Gutierrez claimed that their statements were "first-hand accounts" based on their personal observations of the events described.
Wilson, 82 P.3d at 787; see also Ivanoff v. State, 9 P.3d 294, 300 (Alaska App. 2000) (noting that "`the veracity of a statement given by a police informant whose reliability is unknown may be established by a corroborating statement by another informant'" (quoting Lewis v. State, 862 P.2d 181, 186 n. 5 (Alaska App. 1993))).
However, the details of D06-2 and Gutierrez's tips are not "in substantial agreement," and therefore cannot be cross-corroborative. D06-2's tip was very detailed. But as we have previously pointed out, the detail in an informant's tip cannot alone establish the informant's credibility. An informant could just as easily fabricate a story containing significant detail. Thus, to establish D06-2's credibility, Gutierrez's tip must have been similar enough in detail to make it unlikely that the details of D06-2's tip were fabricated.
Ivanoff, 9 P.3d at 300-01.
Id. at 301; 2 Wayne R. LaFave, Search and Seizure § 3.3(e) (3d ed. 1996) ("[T]he self-verifying detail test should be used only with respect to basis of knowledge and not with respect to veracity.").
See Comonwealth v. Ilges, 834 N.E. 2d 276, 283 (Mass.App. 2005) (stating that cross-corroboration is "based on the idea that distinctive, generally unknown, facts reported by two individuals not acting in concert are likely to be true").
It does not appear to us that Gutierrez's statements are sufficiently detailed and "in substantial agreement" with D06-2's statements to provide adequate cross-corroboration to establish D06-2's credibility. For example, although the affidavit sets out substantial information about how D06-2 identified Hutcherson, it does not set out any information about how Gutierrez identified her. D06-2 stated that D06-2 had been to Hutcherson's residence numerous times and described the residence in detail. The police corroborated that Hutcherson lived at that address. In contrast, neither Gutierrez nor any other information in the affidavit gave any indication of how Gutierrez knew that the person he saw in the bar was Bobbi Hutcherson. Basically the State is using the statement of one informant of highly questionable credibility to corroborate another informant of highly questionable credibility. These statements appear to us to be "insufficient to warrant a court-sanctioned invasion of a citizen's home under the search and seizure clause of our state constitution (Article I, Section 14)."
Wilson, 82 P.3d at 787.
In most cases we have found where the tips of two informants were found to be cross-corroborative, either there was also independent police corroboration of some of the details in the informants' tips or one of the tips came from a presumptively more reliable citizen informant. Even under the less protective standard set forth in Illinois v. Gates, it seems courts generally require more than the level of cross-corroboration present here.
See, e.g., Lewis, 862 P.2d at 185-86; Hugo v. State, 900 P.2d 1199, 1202 (Alaska App. 1995); see also People v. Clark, 488 P.2d 565, 567 (Colo. 1971) (en banc).
See, e.g., Hugo, 900 P.2d at 1201-02; Henry v. State, Alaska App. Memorandum Opinion and Judgment No. 3811 at 6 (May 6, 1998), 1998 WL 224911 at *3; Pennybaker v. State, Alaska App. Memorandum Opinion and Judgment No. 3446 at 8 (Aug. 28, 1996), 1996 WL 33686831 at *3; see also State v. Prince, 760 P.2d 1356, 1360 (Or.App. 1988) (en banc).
462 U.S. at 238, 103 S. Ct. at 2332 ("The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.").
See, e.g., United States v. Oropesa, 316 F.3d 762, 767 (8th Cir. 2003) (one of the informants was proven reliable in the past); United States v. Procopio, 88 F.3d 21, 25 (1st Cir. 1996) (agent independently corroborated some of the information in the informant's tip).
Accordingly, we conclude that the information in the search warrant application was insufficient to satisfy the credibility prong of the Aguilar-Spinelli test. The judgment of the superior court is REVERSED.