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Smith v. State3/31/2004
was leaving, Smith also made a purchase of methamphetamine.
Although this information (that Smith made a purchase of methamphetamine from a retail dealer) tends to undercut the police assertion that Smith himself was a major drug dealer, it does tend to show that Smith was involved with illegal drugs, even if perhaps only as a user. However, the police failed to prove the credibility of this informant. The only information presented to the magistrate about this informant was that she was a female, that she resided in Douglas, and that she had worked at least once as an undercover agent for the police. Thus, like the previous informant, this woman was an anonymous informant of unknown credibility.
As we noted in our recent opinion in Wilson v. State, 82 P.3d 783 (Alaska App. 2003),
It is true that cross-corroboration among informants is a well- accepted method of demonstrating the validity of the information given. Thus, probable cause might be established in a case where two informants whose credibility was unproven nevertheless provided detailed first-hand accounts that were in substantial agreement. But probable cause can not be established by repetition of conclusory accusations.
Wilson, 82 P.3d at 787.
Here, the State asserts that N-428's credibility is established by the conclusory assertions of two anonymous informants whose own credibility is unproven and whose motives are unknown. We conclude that this is insufficient.
Finally, the State argues that N-428's report that he had purchased cocaine from Aparicio must be deemed credible because this statement was against N-428's penal interest. The State asserts that " here was no evidence [presented to] the magistrate that police ... had contacted N-428 to assist them in their investigation ... or that N-428's purchase of cocaine from Aparicio and Wilshusen [sic: the purchase was from Aparicio alone] was part of a controlled buy."
The State's interpretation of the record is unconvincing. The police began their warrant application by telling the magistrate that N- 428 had worked for drug enforcement for twelve years as an informant for pay. The police further declared that N-428 had no criminal record except for a single driving while intoxicated conviction, and they assured the magistrate that N-428 was "not working off any criminal charges". These statements are completely at odds with the State's current assertion that N-428 engaged in a rogue purchase of cocaine and then self-reported this purchase to the authorities. On the contrary: everything the police told the magistrate suggested that they contacted N-428 (a long-time drug informant) and enlisted his aid to see if he could obtain incriminating evidence against a group of people whom the police wished to investigate. There is no reason to suppose that N-428 thought he was subjecting himself to criminal liability when he reported to the police that he had purchased cocaine from Aparicio.
In short, we conclude that the State failed to establish the second prong of the Aguilar-Spinelli test - the prong requiring proof that N-428 was a credible source of information.
Conclusion
Even though the State established that N-428 had personal knowledge of the things he spoke of, N-428 never asserted that he had observed Smith engage in criminal activity, and it is unclear (from the record of the warrant application) whether N-428 ever asserted that he had heard Smith admit or promise participation in criminal activity. Moreover, regardless of what N-428 might have asserted about Smith, the State failed to prove that N-428 was a credible source of information (the second prong of th
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