State v. Rigsbee

¶1(dissenting).

¶2As stated in the majority opinion, the defendant Rigsbee was arrested by officers of the Watertown Police Department on information that “ ‘Mr. Rigsbee had marijuana or a controlled substance in his vehicle and he normally went to the Club 20 between 6:20 and 7:00, and … that he had been selling marijuana out there.’ ” Upon this meager information, it is contended that probable cause existed for the arrest of the defendant.

¶3In dealing with probable cause based partially on an informant’s tip, the United States Supreme Court has said:

“The informer’s report must first be measured against Aguilar’s standards so that its probative value can be assessed. If the tip is found inadequate under Aguilar, the other allegations which corroborate the information contained in the hearsay report should then be considered.” Spinelli v. United States, 1969, 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21 L.Ed.2d 637, 643.1

¶4In Aguilar v. Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, an informant’s tip used to secure a search warrant was measured against the following test:

“[T]he magistrate must be informed of some of the underlying circumstances from which the informant con-*369eluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant * … was ‘credible’ or his information ‘reliable.’ ” 378 U.S. at 114, 84 S.Ct. at 1514, 12 L.Ed.2d at 729. (emphasis supplied)

¶5The second Aguilarcriterion, as noted in the majority opinion, is not in question here. Defendant concedes the reliability of the informant, and absent such a concession I would reach the same result. This informant had been used before and had been instrumental in several arrests and convictions. Cf. McCray v. Illinois, 1967, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62; Walker v. Nelson, 1972, 9 Cir., 468 F.2d 451.

¶6However, just as surely as this tip passes one of Aguilar’s tests, it fails the other. The record is totally void of any “underlying circumstances” that would tell a magistrate or this court why the informant believed defendant had the marijuana. This is a reasonable requirement and it is one this court should not be willing to forsake for the expediencies of law enforcement. The Fourth Amendment favors the use of a warrant and the standard of probable cause to “assure that the judgment of a disinterested judicial officer will interpose itself between the police and the citizenry.” Spinelli v. United States, 1969, 393 U.S. 410, 419, 89 S.Ct. 584, 591, 21 L.Ed.2d 637, 645. When, because of the practicalities of law enforcement, an arrest is made without a warrant, a court acting after the fact must be able to. determine whether probable cause existed. If there was probable cause, the arrest will be upheld. If probable cause did not. exist, the arrest becomes a nullity. In either case, the constitutional protections guaranteed the citizenry are left intact. The decision to arrest may be made by the police, but the determination of probable cause still belongs to the courts.

¶7When, however, an informant relates only that a crime will be committed and does not tell how he reached this conclusion, the courts are precluded from performing their constitutional duty — the determination of probable cause. Informants, regardless of their reliability, are capable of drawing unjustified conclusions. Personal observation would obviously be enough to *370affirm the informant’s conclusion, but I am presented with none of the “underlying circumstances” available to the informant in this case. I am unable to determine whether the informant was basing his conclusion on probable cause, and I refuse to delegate that function to a non-judicial officer. The informant’s tip must be held inadequate.

¶8Finding the tip insufficient, I must now follow the instructions of Spinelli v. United States, supra, to determine whether the insufficient tip can be teamed with any independent corroboration to reach the sum of probable cause. The only other facts at hand are Officer Durham’s knowledge of defendant’s record and the informant’s assertion that Rigsbee would be traveling to a certain place at a certain time.

¶9The state cites United States v. Harris, 1971, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723, for the proposition that knowledge of a previous record can cure a tip not meeting the first Aguilartest. I do not read Harrisin this manner. Harris’ conviction had been reversed in the court of appeals because “there was no substantial basis for believing that the tip was truthful.” 403 U.S. at 579, 91 S.Ct. at 2080, 29 L.Ed.2d at 731. Harriscentered on this issue. The question was whether the informant could be believed, a basic requirement of Aguilar. The United States Supreme Court merely held that when an informer’s tip is deficient in the truth department, the policeman’s knowledge of the defendant’s record, while perhaps not sufficient, is certainly relevant to the believability of the tip. In Harris v. United States, supra, the tip was found sufficient under Aguilar.2

¶10The case at hand, however, is entirely different. The truthfulness of the informant is not in doubt, it is the wisdom of his conclusion that is questioned here. The fact that Officer Durham knew about defendant’s previous record really says *371nothing about whether the informant had probable cause to believe Rigsbee possessed a controlled substance — the other branch of the Aguilar test.

¶11Independent corroboration may, however, be used in another manner. Draper v. United States, 1959, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, is the classic example of this. There the additional information given the police by the informant was so detailed that although the basis for the informant’s conclusion was missing, the sheer weight and detail of those extra facts gave the police probable cause to arrest once the facts were confirmed by police observation.

¶12The basis of this approach is, I believe, that when the police have enough outside information, whether from the informer or otherwise, to believe that the informer knows so much about the suspect to have probable cause for his conclusion, the police also have probable cause. Here we have only Rigsbee’s previous record and the statement that Rigsbee would be traveling a certain road at a certain time. This hardly compares to the detailed description in Draper v. United States, supra; and, assuming Harriswas using independent corroboration in this manner, the extra information available to the police in that case far outweighs the information present here. In United States v. Harris, supra, the informant’s tip also constituted a declaration against penal interest; the authorities had received numerous reports from various people regarding Harris’ illegal activity; and a stash of illicit whiskey had previously been seized from an abandoned house under Harris’ control.

¶13We find the facts in this case remarkably close to Beck v. Ohio, 1964, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142. The United States Supreme Court noted that:

“All that the trial court was told in this case was that the officers knew what the petitioner looked like and knew that he had a previous record of arrests or convictions for violations of the clearing house law. Beyond that, the arresting officer who testified said no more than that someone (he did not say who) had told him something (he did not say what) about the petitioner.”

¶14*372The same conclusion has been reached in recent decisions of the courts of appeals. In United States v. Bursey, 1974, 5 Cir., 491 F.2d 531, an informant indicated that four specified individuals were in town to purchase marijuana. A computer printout indicated that one of them had previously crossed the border with marijuana. Furthermore, two days later a second informer indicated that three persons of the four “were staying at a local motel and intended to obtain narcotics in nearby Rio Grande City ….” 491 F.2d at 532. According to the Fifth Circuit, neither of these two tips “related the detail suggestive of a credible basis for the information given by the informants.” 491 F.2d at 534. I suggest that the information before us was comparable to that of Bursey.

¶15Nor may easily available, innocent information be added to a bald assertion of wrongdoing to satisfy the requirement that an informer show an adequate basis of knowledge for his information. In United States v. Hamilton, 1974, 9 Cir., 490 F.2d 598, the court considered a situation wherein an informant pointed out a particular car on the street and asserted that it had marijuana hidden in a false compartment in the body bed. The language of the Ninth Circuit is particularly appropriate here. “In the case at bar all the government had was a statement supported by nothing that was not open and obvious to anyone. We know of no case suggesting that this is enough.” 490 F.2d at 601. In this case it could be known to anyone that the defendant went regularly to a bar using a car at about 6:30 p. m. The informer only added his tarnished assertion that the defendant carried marijuana. This indeed is exactly what was held insufficient in Hamiltonand what should be held insufficient here. One should not be able to stand on the street, gain information about a stranger, add to that information an assertion that he carries contraband and have a warrant issued and sustained on that basis. Some of the details of the wrongdoing or the contraband itself must be added.

¶16I wish to state my view that the majority opinion is not justified by the decision of the Eighth Circuit Court of Appeals in United States v. Cummings, 1974, 507 F.2d 324. In Cummingsthe informer “stated that slot machines were being transported and gave an estimated value of this equipment. He described the *373truck by color and by rental system. He indicated the license number of the truck. And he correctly identified the driver and the destination of the truck.” 507 F.2d at 329. In the case considered herein, we know only that the defendant usually drove his car, which apparently was undescribed, to the Club 20 about 6:30 each night. No license plate number was given. There is an assertion that he carried marijuana but there is no indication of how much he-carried or the value of it.

¶17I can only say that I find the difference in detail in the instant case and in Cummingsto be substantial, and I am totally unable to reconcile myself to the majority view that the degree of detail present in the two cases is essentially the same.

¶18Since I find the arrest to be invalid, the subsequent -search cannot be justified as incident to an arrest. See Beck v. Ohio, supra: Furthermore, any search conducted at a place and time remote from the arrest cannot be justified as incidental to the arrest. Preston v. United States, 1964, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d.777. Nor can this search be justified under the probable-cause-plus exigent circumstances exception. See Chambers v. Maroney, 1970, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. Since I find no probable cause existed to arrest the defendant for possession of marijuana, logic demands that I also find no basis, absent the probable cause, to believe that Rigsbee possessed marijuana for the purposes of a search.

¶19It is urged that the defendant consented to the search at the police station when he retrieved the marijuana from his car. We have addressed this question previously in State v. Cochrane, 1970, 84 S.D. 527, 173 N.W.2d 495, where Judge Homeyer said, “A distinction is recognized between submission to apparent authority of an officer acting under a warrant and unqualified consent.” I believe the same principle applies here. It is hard to believe that when a person is apparently under arrest he would willingly aid in the production of incriminating evidence. Such “consent” is more likely to be a submission to the apparent authority of the police rather than a voluntary relinquishment of important constitutional rights. The burden is on the state to prove a waiver of constitutional rights, State v. Cochrane, supra, and that burden has not been met here.

¶20*374For these reasons, the evidence obtained from defendant’s car should have been suppressed.

¶23(dissenting).

¶24The majority opinion chooses not to rule on the question of' the voluntariness of the act of the defendant in turning over the incriminating evidence to the' officers. I am convinced that the sole issue is whether the defendant voluntarily gave evidence that incriminated him and that his constitutional rights cannot be so by-passed.

¶25■ At the close of the suppression hearing the trial court denied the motion to suppress without stating its reasons. However, at the close of the trial the following statement appears:

“It is the court’s opinion in this case that the police had reasonable basis upon which to make a search in this case. This is not a search that was made incident to arrest. Here is a vehicle that could be moved out of the country immediately. The rules are different for searching an automobile than for searching a residence.” (emphasis supplied)

¶26Obviously the trial court had in mind State v. McCreary, 1966, 82 S.D. 111, 142 N.W.2d 240; State v. Klingler, 1969, 84 S.D. 466, 173 N.W.2d 275 and State v. Thunder Horse, 1970, 85 S.D. 76, 177 N.W.2d 19, as justifying the admission of the evidence on the basis that it was a search of a vehicle and the rules are different than for searching a residence. While this statement is basically true the right to search depends on the facts and circumstances of each case and the circumstances of this case fall well within the plain language of Chambers v. Maroney, 1970, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, cited by the majority opinion as supporting its position. However, the court further stated in that case:

“… if an effective search is to be made at any time, either the search must be made immediately without a warrant or the car itself must be seized and held without a warrant for whatever period is necessary to obtain a warrant for the search.” 399 U.S. at 51, 90 S.Ct. at 1981, 26 L.Ed.2d at 428.

¶27*375Both the vehicle and the defendant were clearly within police custody and there was no threat of the destruction of evidence. Coolidge v. New Hampshire, 1971, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564; Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685; United States v. Rothman, 1973, 9 Cir., 492 F.2d 1260. Officer Durham was twice advised by his superior to secure the search warrant and should have done so and certainly there was more than sufficient time to do so since there was a time lapse of nearly two hours between the delivery of the first and second batches of evidence by the defendant.

¶28If the evidence is to be admitted as incident to an arrest, I believe that under the facts in this case, the language from State v. Jackson, 1933, 61 S.D. 499, 250 N.W. 55, applies:

“By his act of seizing and searching appellant’s automobile, without appellant’s permission or without lawfully issued warrant permitting said search and seizure, said sheriff directly violated appellant’s constitutional rights as guaranteed him by sections 9 and 11 of article 6 of the Constitution of South Dakota.”

¶29As indicated in the foregoing statement from State v. Jackson, supra, and as noted in State v. Vey, 1908, 21 S.D. 612, 114 N.W. 719, our court has, in keeping with the statement of law found in 22A C.J.S. Criminal Law § 650 and 8 Wigmore, Evidence § 2264 (McNaughton rev. 1961), considered that, in circumstances such as presented here, absent consent freely given, the privilege against self-incrimination guaranteed by the Fifth Amendment to the U.S. Constitution and Article VI, Section 9 of the South Dakota Constitution has been violated and therefore the evidence is not admissible. While, generally, courts have considered such factual situations on the question of consent to search and seizure, Hardy v. Cunningham, 1969, N.D., 167 N.W.2d 508; People v. Clark, 1967, 5 Mich.App. 672, 147 N.W.2d 704; United States v. Rothman, supra; United States v. Culp, 1973, 8 Cir., 472 F.2d 459, it should be noted that this court’s recognition of the interrelationship of the rights guaranteed by §§ 9 and 11 of Article VI of this state’s Constitution and the necessity for full compliance with both provisions has been *376given like recognition as have the comparable provisions of the federal constitution. Brown v. Illinois, 1975, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416, citing Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.

¶30To sustain the conviction on this record would have the effect of reinstating, by decision, the language of SDCL 23-15-2 as it stood prior to the 1972 legislative amendment. This court in State v. Lane, 1957, 76 S.D. 544, 82 N.W.2d 286, and again in State v. McCreary, supra, made it clear to the legislature that as to a search and seizure the end does not justify the means. The statement of law in State v. Jackson, supra, that the legislature, by the 1935 amendment to R.C.1919, § 4606, attempted to negate reads:

“An improper and illegal seizure cannot be justified or sustained by information acquired after the seizure.” 61 S.D. at p. 503, 250 N.W. at p. 57.

¶31This should remain our statement of law on the subject.

¶32It is well settled that the burden is on the one making the motion to suppress evidence to establish that such evidence was illegally seized. State v. Merrill, 1967, 82 S.D. 609, 152 N.W.2d 349. However, when the government relies upon consent to an otherwise illegal search and seizure, it has the burden of proving, by clear and convincing evidence, that consent was voluntary and free from duress and coercion. State v. Shephard, 1963, 255 Iowa 1218, 124 N.W.2d 712.

¶33The trial court having found it unnecessary and, therefore, having failed to make a finding on the consent issue, I would reverse.