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JOHN WALTER READ and CATHY BENNETT READ v. STATE OF MISSISSIPPI

MARCH 23, 1983

JOHN WALTER READ and CATHY BENNETT READ
v.
STATE OF MISSISSIPPI



EN BANC.

PART I - JUSTICE ROY NOBLE LEE

PART II - JUSTICE JAMES L. ROBERTSON

PART I

 ROY NOBLE LEE, JUSTICE, FOR THE COURT:

 John Walter Read and Cathy Read, husband and wife, were jointly indicted, tried and convicted in the Circuit Court of Jackson County, Honorable Clinton E. Lockhard, presiding, for possession with intent to deliver a controlled substance prohibited by Mississippi Code Annotated 41-29-115, -117, and -119 (1972). John Read was sentenced to fifteen (15) years in custody of the Mississippi Department of Corrections and a fine of fifteen thousand dollars ($15,000), and Cathy Read was

 sentenced to ten (10) years and a fine of five thousand dollars ($5,000). They have appealed, and assign five (5) errors in the trial below.

 Evidence for the State indicates that on May 24, 1980, Captain Terry Warden of the Jackson County Sheriff's Office, acting on information obtained from a confidential informant, made affidavit before County Judge O. L. McLeod for a warrant to search the house where appellants were living in rural Jackson County. The search warrant was executed in the late afternoon of May 24, 1980, and, in appellant's bedroom, the officers found and seized over fifty-five (55) bottles containing five thousand three hundred eighty (5,380) pills and capsules, several with powder and paste, fourteen thousand two hundred forty dollars twenty-five cents ($14,240.25) in United States currency, and fifteen (15) assorted rifles and pistols, some of which were loaded. Subsequently, the appellants were indicted for possession with intent to deliver a controlled substance, flurazepam.

 The officers also found in the bedroom a syringe and spoon on the dresser, and they observed articles of appellants' clothing and family pictures there. Photographs were made of the room and certain items found in it. Appellants were arrested, advised of their constitutional rights, and taken to the sheriff's office for processing.

 Dr. Sue Lauderdale, Associate Director of the Gulfport Branch of the Mississippi Crime Laboratory, examined the drugs. She took one sample from groups having identical colors and markings with commercial preparations, and analyzed them to confirm that they were the same substance. If they did not look identical to a commercial preparation, an individual test was conducted. The following is a list of the drugs found, all being controlled substances: Secobarbital, Phenobarbital, Oxycodone, Amobarbital, Hydromorphone, Amphetamine, Flurazepam and Methylphenidate, Methadol, Morphine, Cocaine, Anilerioine, and Morphine.

 I.

 Did the lower court err in admitting evidence under an invalid search warrant?

 Appellants contend that the information stated in the affidavit for the search warrant was insufficient to support a finding of probable cause, that the search pursuant thereto was illegal, and all evidence obtained under the search is tainted and inadmissible.

 The affidavit was in a printed form with blank spaces to be filled for supplying information. Those parts of the printed form which were not applicable were blocked out. Following Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964), in adopting a two-part test for the validity of search warrants, this Court in Strode v. State, 231 So. 2d 779 (Miss. 1970), said:

 The two-part test of Aguilar requires a magistrate to be informed of (1) some of the underlying circumstances from which the informer concluded that the defendant was the one guilty of the offense, and (2) some of the underlying circumstances from which the officer concluded that the informer was reliable. In short, under the basis-of-knowledge test, the informer must have obtained his knowledge by personal observation or in some other dependable manner rather than through casual rumor. The second reliability test is an attempt to guard against tips provided by untruthful or unreliable informers, and suggests that an informer is credible if he has provided truthful tips in the past. Moreover, the information may be deemed reliable if corroborated by independent investigation. Both tests require only that some of the underlying circumstances be sworn to. [231 So. 2d at 783].

 Subsection 3 (b) of the form affidavit for the search warrant set forth that the informant advised on May 23, 1980, he

 (1) Personally saw controlled substances . . . demerol and marijuana, stored, kept, used and sold at the above-described place

 (2) Personally saw John (last name unknown) sell controlled substances in the above-described place

 * * * *

 (4) Personally heard John (last name unknown) arrange to sell controlled substances, use controlled substances. (5) Other: Narcotics Officers Warden and Wilks have received information on John (last name unknown) that he has been selling controlled substances

 at the address given over one month by no less than three other informants.

 Subsection 3 (a) of the affidavit states the following underlying circumstances relating to the credibility of the informant:

 (1) Your affiant Terry Warden has known this person for a period of over two years and through his association with said person knows this person to be a truthful person.

 (2) This person is gainfully employed and works regularly.

 (3) Your affiant has interviewed this person and investigated his background and found him to be prudent, trustworthy, and reliable person.

 (4) This person has furnished information in the past, which information has proven to be correct, accurate, and reliable.

 In addition, Officer Warden gave oral information to Judge McLeod in support of the issuance of a search warrant. This Court has held that such testimony is admissible and is supportive of a search warrant. Powell v. State, 355 So. 2d 1378 (Miss. 1978), Prueitt v. State, 261 So. 2d 119 (Miss. 1972).

 In Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L.Ed.2d 637 (1969), the United States Supreme Court expanded the two-part test of Aguilar in holding that," If a tip is found inadequate under Aguilar, the other allegations which corroborate the information . . . should be considered. "393 U.S. at 415, 89 S. Ct. at 588, 21 L.Ed.2d at 643. Thus, probable cause may be established by showing corroborating evidence obtained in a different way, viz, through independent police investigation.

 Subsection 3 (c) of the affidavit contains the following information:

 C. Your affiant having received the information . . . verified this information by personal observation in that:

 (1) The place above described was placed under periodic surveillance for a period of over one month.

 (2) Affiant(s) saw (heard) - Not applicable.

 Although what was observed and discovered by surveillance of the premises was not specifically set forth, it, together with information about the statement of three (3) other informants, had some relevance to the fact that the appellants had been under suspicion for some time. In Spinelli, supra, the United States Supreme Court further stated:

 [W]e do not retreat from the established propositions that only the probability, and not a prima facie showings of criminal activity is the standard of probable cause. Beck v. Ohio, 379 US 89, 96, 13 L.Ed.2d 142, 147, 85 S Ct 223 (1964); that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial. McCray v Illinois, 386 U.S. 300, 311, 18 L Ed 2d 62, 70, 87 S Ct 1056 (1967); that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 US 102, 108, 13 L Ed 2d 684, 688, 85 S Ct 741 (1965); and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, 362 US 257, 270-271, 4 L Ed 2d 697, 707, 708, 80 S Ct 725, 78 ALR 2d 233 (1960). (Emphasis added) [393 U.S. at 419, 89 S. Ct. at 590-591, 21 L.Ed.2d at 645].

 The appellants also contend that the lower court erred in admitting into evidence firearms which were discovered in the bedroom. The firearms were relevant to the issues involved, and the lower court did not abuse its discretion in admitting them in evidence. Martin v. State, 413 So. 2d 730 (Miss. 1982).

 II.

 Did the lower court err in declining to require disclosure of the informant's identity?

 Appellants next contend that the court erred in declining to require the State to identify the informant for the reason that they were unable to prepare a full and adequate defense to the charges without knowledge of the informant's identity. The law pertaining to this question is well ...


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