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Smith v. State3/31/2004
imed to have witnessed.
Haight testified that N-428 told the police about a conversation he had with Aparicio and Wilshusen on July 14, in which N- 428 unsuccessfully attempted to purchase cocaine. Haight further testified that N-428 told the police that he succeeded in purchasing a gram of cocaine from Aparicio three days later, and that Aparicio told N-428 that Wilshusen had supplied the cocaine. However, there is nothing in the record to suggest that N-428 ever asserted that Smith was involved in this transaction.
Haight testified that N-428 told the police that Aparicio took him to Smith's house on July 31, and that Aparicio introduced N-428 to Smith at that time, and that "Nick" was there too. Haight then made the somewhat cryptic assertion:
Aparicio - well, basically, the course of the conversation was that Blaine Smith could get any amount of methamphetamines that N-428 wanted.
In its brief to this Court, the State characterizes Haight's testimony as a description of "Smith's statement to ... N-428". But as we noted earlier, Haight's assertion about "the course of the conversation" fails to specify exactly who made the remark about Smith's purported ability to supply methamphetamine. From Haight's description, it is possible that N-428 reported that Smith made this boast to him. But it is equally possible (from Haight's description) that "Nick" or Aparicio made this remark.
Indeed, a little later in the warrant application hearing, when Haight returned to the subject of the July 31 meeting at Smith's house, Haight told the magistrate that, according to N-428, it was "Nick" who told him to "come back any time we can help you out with any drugs that ... you need". Haight hedged this statement by adding that he "believed" that all three men - "Nick", Aparicio, and Smith - expressed this same sentiment. But Haight did not explain the basis of this belief to the magistrate. That is, Haight did not clarify whether N-428 had indeed asserted that all three men said the same thing, or whether Haight somehow inferred this from N-428's description of the conversation, or whether Haight independently concluded that this was what likely happened, given his suspicion that all three men were selling drugs.
To summarize - based on the information presented by Haight and Culbreth at the Glass warrant application, N-428 reported the following things to the police:
(1) N-428 purchased cocaine from Aparicio on July 17, 2000, and Aparicio told him that Wilshusen had supplied the drug. However, N- 428 never asserted that Smith was involved in this sale in any fashion.
(2) Aparicio took N-428 to Smith's house on July 31, 2000, and N-428 met Smith there. "Nick" was also present. At least one of these three men (Aparicio, Smith, and/or "Nick") told N-428 that Smith could supply him with any amount of methamphetamine that he wanted. But one can not tell, from Haight's description of N-428's report, whether Smith made this remark, or whether the remark was even made in Smith's presence.
The second prong of Aguilar-Spinelli: did the police establish that N- 428 was a credible source of information?
As we explained above, N-428 was a police informant, and therefore the police had to establish his credibility by affirmatively showing (1) that they had obtained independent corroboration of N-428's assertions, or (2) that N-428 had provided accurate information in the past, and/or (3) that N-428's statements were against his own penal interest. The State asserts that it proved N-428's credibility in all three ways.
With regard to independent corroboration, police surveillance did confirm N-4
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