BEFORE WALKER, ROBERTSON AND ANDERSON
ANDERSON, JUSTICE, FOR THE COURT:
This appeal is from a conviction rendered in the Circuit Court of Kemper County wherein appellants were convicted of five counts of possession of controlled substances with intent to sell and sentenced to five consecutive three-year sentences and payment of $5,000 fine each.
On January 3, 1983, Robert Alexander, an agent with the Mississippi Bureau of Narcotics, was contacted by a confidential informer who gave him information leading him to believe there was probable cause for a search warrant of Breckenridges' house trailer. The confidential informer supplied him with specific information concerning the selling of drugs from the trailer and took the agent to the location of the trailer. At the time, appellant Cheryl Breckenridge was living with appellant James Breckenridge; they have subsequently been married.
After leaving the Breckenridge's trailer, Agent Alexander returned to Meridian and typed an affidavit and wrote out the underlying facts and circumstances in support of it. Around 1:30 a.m. on January 4, 1983, Agent Alexander, accompanied by five other agents, went to Judge Vernon Myers' home in Neshoba County to get a search warrant. Judge Myers signed the search warrant, after placing Agent Alexander under oath and questioning him as to the underlying facts.
The Bureau of Narcotics agents contacted the local sheriff and they met at Judge Myers' home. The sheriff notified the agents that the trailer as described was not located in Neshoba County, but was in Kemper County. Since the agents did not know any judges in Kemper County, Sheriff Phillips directed Agent Alexander to Judge George Smith's residence. While Agent Alexander was obtaining a second search warrant, the five other agents drove to the appellants' trailer. Shortly before 2:00 a.m., Agent Alexander presented Judge Smith with the affidavit of the underlying facts and circumstances, as well as the search warrant. Judge Smith put Alexander under oath, at which time Alexander went over the underlying facts.
Judge Smith reviewed the affidavit for search warrant, but did not read all the underlying facts and circumstances. Judge Smith determined that there was probable cause for the search warrant and issued it.
Once the warrant was obtained, Agent Alexander radioed the other agents and informed them that he had obtained the warrant. The other agents proceeded to the trailer and observed activity inside. An agent knocked on the door and stated," State Narcotics, open up. "After stating this several times and knocking on the door loudly, and getting no response from the appellants, the agents broke the door down with a sledge hammer.
Upon entering the trailer, the Narcotics Agents were confronted by appellant, Sonny Breckenridge, naked, aiming a pistol at the officers. The officers pointed their pistols at him and convinced him to drop his gun. They secured the premises for safety and brought appellant, Cheryl Breckenridge into the living room. A green leafy matter, which they presumed to be marijuana, was in plain view in the living room. An agent informed them of their rights and placed them under arrest for violation of Mississippi Code Annotated, Section 41-29-139 (1972). The sheriff arrived with Agent Alexander while this procedure was taking place.
The items seized from the trailer consisted of 14 different drugs, receipt and address books, $9,734 in cash, triple beam scales, plastic bags containing marijuana, hand-rolled marijuana cigarettes, a rolling machine and various guns and knives.
THE EVIDENCE SHOULD NOT HAVE BEEN ADMITTED SINCE IT WAS THE RESULT OF AN ILLEGAL SEARCH AND SEIZURE.
The appellants contend that there was insufficient probable cause in the" underlying facts and circumstances "for Justice Smith to issue a warrant. An examination of the pertinent parts of the underlying facts and circumstances document reads as follows:
On or about the 4th day of January, 1982, (sic 1983), I was contacted by a confidential informant who had provided information about drugs in the Lauderdale - Neshoba County area in the past, which information had
proved to be true and correct.
The informant stated that he had visited Sonny for the purpose of purchasing drugs approximately four to five times a week for the last five months. Each visit resulted in the purchase of a least six dilaudid. . .
In the past week (December 27, 1982, to January 3, 1983) the informant has been to Sonny's residence four times and purchased a total of 24 mgms. Dilaudid for a total of $1,080.
Appellants rely upon the case of Aguilar v. Texas, 378 U. S. 84, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. U. S., 393 U. S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). The Aguilar/Spinelli test requires that the affiant establish the reliability of the informant by showing:
(1) prior use and reliability of the informant,
(2) a declaration by the informant against his ...