Opinion
Case No. 20020031-CA.
FILED March 27, 2003. (Not For Official Publication)
Fourth District, Provo Department, The Honorable Guy R. Burningham.
Attorneys: Margaret P. Lindsay, Provo, for Appellant.
Mark L. Shurtleff and Jeffrey T. Colemere, Salt Lake City, for Appellee.
Before Judges Billings, Bench, and Greenwood.
MEMORANDUM DECISION
"The factual findings underlying a trial court's decision to grant or deny a motion to suppress evidence are reviewed under the deferential clearly-erroneous standard, and the legal conclusions are reviewed for correctness, with a measure of discretion given to the trial judge's application of the legal standard to the facts." State v. Moreno, 910 P.2d 1245, 1247 (Utah Ct.App. 1996). When reviewing the contents of an affidavit, this court makes "`an independent review of the trial court's determination of the sufficiency of the written evidence.'" State v. Deluna, 2001 UT App 401, ¶ 9, 40 P.3d 1136, cert. denied, 2002 Utah LEXIS 150 (citation omitted). "However, `the [F]ourth [A]mendment does not require that the reviewing court conduct a de novo review of the magistrate's probable cause determination[.] [I]nstead, it requires only that the reviewing court conclude "that the magistrate had a substantial basis for . . . [determining] that probable cause existed."'" Id. (alterations in original) (citations omitted).
"Where, as here, information obtained from informants is the primary support for the search warrant, an analysis of the totality of the circumstances requires us to consider the three factors articulated by this court in Kaysville City v. Mulcahy, 943 P.2d 231, 235-36 (Utah Ct.App. 1997)." Deluna, 2001 UT App 401 at ¶ 11; see also State v. Valenzuela, 2001 UT App 332, ¶ 16, 37 P.3d 260 (extending the use ofMulcahy factors "to determinations of probable cause" involving informants).
The first Mulcahy factor involves the court's evaluation of the "type of tip or informant involved." Mulcahy, 943 P.2d at 235. Thus, we evaluate "the `informant's veracity, reliability, and basis of knowledge.'" State v. McArthur, 2000 UT App 23, ¶ 31, 996 P.2d 555 (citation omitted). Here, because the information contained in the affidavit was based on the confidential informant's (the CI) personal observations, the basis of knowledge component has been met. See Deluna, 2001 UT App 401 at ¶ 13. Therefore, we look at the affidavit to determine whether it contained sufficient facts to establish the CI's veracity and reliability.
Here, the CI's veracity is bolstered by the fact that the CI provided "reliable information in the past" that was used to recover narcotics "in several cases." The affidavit also stated that the information supplied by the CI "has always been proven true through independent investigations" by either Officer Welcker or others and has never been "wrong or misleading." See State v. Bailey, 675 P.2d 1203, 1206 (Utah 1984) (establishing CI's veracity where CI had "previously given truthful information" regarding stolen vehicles); see also McCray v. Illinois, 386 U.S. 300, 303, 313, 87 S.Ct. 1056, 1058, 1063 (1967) (finding a sufficient basis for probable cause where informant previously gave reliable information to police).
Furthermore, the CI's reliability is "`boosted by the detail with which the informant describe[s] his personal observation[s].'" Bailey, 675 P.2d at 1206 (quoting State v. Romero, 660 P.2d 715, 719 (Utah 1983)); see Mulcahy, 943 P.2d at 236. In this matter, Officer Welcker's affidavit included significant detail as to what the CI saw while in Defendant's home.
The second factor in determining whether, under the totality of the circumstances, the magistrate had probable cause to issue the warrant is "whether the informant gave enough detail about the observed criminal activity." Id. "A tip is more reliable if it is apparent that the informant observed the details personally, instead of simply relaying the information from a third party." Id. As discussed previously, the affidavit contained significant detail regarding the CI's observations, which included the growing and preparing of marijuana for sale, the locations where marijuana was grown, and the price of Defendant's marijuana.
Finally, the reliability and veracity of the CI's tip and the great detail in which the CI reported the observed activity diminishes the importance of significant corroboration by the officers. See id. ("`[W]here the reliability of the information is increased, less corroboration is necessary.'" (citation omitted)). Furthermore, Officer Welcker could not have thoroughly corroborated the drug activity without raising the suspicions of Defendant, who was aided by the watchful eye of his neighbor, possibly creating a dangerous situation for officers as well as nearby school children.
The magistrate properly determined the affidavit provided sufficient probable cause to issue the warrant. Thus, we affirm.
I CONCUR: Russell W. Bench, Judge.
I CONCUR IN THE RESULT: Judith M. Billings, Associate Presiding Judge.