The opinion of the court was delivered by
Lester Eugene Toler appeals from his convictions by a jury for
possession of a stimulant with intent to sell, K.S.A. 1989 Supp.
65-4127b(b)(2); possession of drug paraphernalia, K.S.A. 65-4152;
and unlawful use of weapons, K.S.A. 21-4201(1)(g) (possessing a
shotgun with a barrel less than 18 inches in length). The only
issue raised on appeal is the adequacy of the affidavit submitted
in support of the search warrant.
On April 14, 1988, Sergeant Joseph Garman, of the City of
Salina Police Department, executed an affidavit to obtain a
search warrant for the property at 804 Greenbriar, Salina, Saline
County, Kansas. The items sought included "methamphetamine,
cocaine, drug paraphernalia, phone records, documents, any
illegal narcotics as described by law, and monies." In support of
his belief that this property would be found at the location to
be searched, the officer listed: (1) a controlled buy of
methamphetamine on April 14, 1988, at 804 Greenbriar from Phyllis
Sprecker, who resided at that residence, by a confidential
informant who had given the Salina Police Department reliable
information in the
past; (2) complaints in January 1987 from neighbors suspecting
the Spreckers of dealing drugs at their home at 1505 East
Ellsworth; (3) a call on September 15, 1987, from a captain with
the Department of Corrections, that Phyllis Sprecker was
suspected of somehow smuggling drugs to an inmate; and (4) an
anonymous Salina Crimestoppers tip, No. 87-122, on December 17,
1987, stating that Phyllis Sprecker was selling amphetamines out
of her home at 914 Somerset and was ordering an ounce to a
quarter of a pound every few days.
The search warrant was signed on April 14, 1988, at 8:30 p.m.,
by a judge of the District Court of Saline County, Kansas,
authorizing a search of the one-story, single family dwelling as
well as outbuildings, vehicles, or persons at 804 Greenbriar. The
items sought were listed as "methamphetamine, cocaine, drug
paraphernalia, phone records, documents, any illegal narcotic as
described by law, and monies." The search warrant was executed at
9:40 p.m. on April 14, 1988. When the officers knocked, a
babysitter answered the door and allowed the officers to enter.
Present at the residence were the babysitter and six children.
The officers seized numerous items during the search, including
documents that indicated defendant resided at the residence with
At the trial, Phyllis Toler, who was formerly Phyllis Sprecker
but had recently married the defendant, testified that she sold
drugs to pay bills for her and her children. She began living at
804 Greenbriar in June of 1987. Defendant moved in with her
around February of 1988. She paid the bills for the household
with defendant contributing his money from work. Phyllis
testified that the drugs and paraphernalia found at 804
Greenbriar belonged to her and that defendant had not sold drugs
for her. Defendant and Phyllis married sometime after the search.
In rebuttal, the State presented the confidential informant,
who had made the drug purchase. He testified that he had
purchased drugs from Phyllis Sprecker while defendant was present
but had never purchased drugs from defendant. He further
testified that he had previously been convicted of possession of
cocaine and was on probation. The woman the confidential
informant was living with had been busted and he had made the
from Phyllis with the understanding that his girlfriend's charge
would be reduced from sale to possession.
A motion to suppress was filed by defendant's counsel on June
30, 1988. The motion challenges the sufficiency of the affidavit
to support the search warrant and, in paragraph 5, alleges that
the affidavit contains false and misleading information. Defense
counsel filed a supplemental motion to suppress evidence on
August 8, 1988, because the affidavit relied upon information
provided by a confidential informant who was on probation at the
time under order of the Saline County District Court. Defendant
argues that use of such probationer violated local district court
Rule No. 4.108, which prohibits using a person on probation or
parole as a confidential informant.
At the hearing on the motion to suppress conducted on August
10, 1988, defense counsel waived his argument that the affidavit
contained false or misleading information, relying instead upon
his argument that the affidavit was not valid on its face.
Defendant presented no evidence. The court ruled that, under the
totality of the circumstances test utilized by the United States
Supreme Court in Illinois v. Gates, 462 U.S. 213, 76 L.Ed.2d
527, 103 S.Ct. 2317 (1983), the affidavit was sufficient to
support the issuance of the search warrant. Although the district
court recognized that the confidential informant was used in
violation of a local rule that prohibits use of a probationer as
a confidential informant, the court held that the violation of
this local administrative rule had no bearing upon the
constitutional question of the adequacy of the search warrant.
The court concluded that violation of the local rule should be
enforced by contempt proceedings, not by suppression of the
The only issue before us is whether the information contained
in the affidavit provided probable cause for issuance of the
search warrant. Defendant attacks the affidavit on three grounds.
First, he argues that the reliability and credibility of the
confidential informant is not established. The affidavit merely
alleges that the confidential informant "has given information to
the Salina Police Dept. in the past that was proven reliable."
The affidavit does not set forth the confidential informant's
criminal history and does not reveal that he was currently on
probation, that he had failed at rehabilitation by continuing to
purchase drugs, and that using
him violated a local rule prohibiting the use of people on
probation or parole as confidential informants in drug cases.
Defendant recognizes that, following the United States Supreme
Court decision in Illinois v. Gates, 462 U.S. 213, the trial
court will no longer employ the two-pronged analysis of Spinelli
v. United States, 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584
(1969), and Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84
S.Ct. 1509 (1964), to test the credibility and reliability of a
confidential informant. Defendant argues that, in spite of
employing the more relaxed test of totality of the circumstances
in Gates, the United States Supreme Court still recognizes the
value of corroborating ...