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STATE v. TOLER

March 2, 1990.

STATE OF KANSAS, Appellee,
v.
LESTER EUGENE TOLER, Appellant.



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

[246 Kan. 270]

      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 Phyllis Sprecker.

  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 controlled buy

[246 Kan. 271]

      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 evidence.

  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

[246 Kan. 272]

      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 ...


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