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Bland v. State5/16/2000
. at 2332-33, 76 L.Ed.2d at 548. "The existence of probable cause is a common sense standard requiring facts sufficient to warrant a man of reasonable caution in the belief that an offense has or is being committed." Mollet v. State, 939 P.2d 1, 7 (Okl.Cr.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 859, 139 L.Ed.2d 758 (1998) quoting United States v. Wicks, 995 F.2d 964, 972 (10th Cir.1993). A magistrate's finding of probable cause is to be given great deference. Id. The duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Langham, 787 P.2d at 548.
In the present case, the affidavit submitted to the magistrate provided: 1) on November 17, 1996, Sheriff Hanes received a missing persons report from Ruby Hess concerning the victim; 2) Sheriff Hanes checked the residence of the victim and discovered he was not there; 3) Sheriff Hanes also discovered the victim's pickup was missing; 4) Sheriff Hanes interviewed several relatives and neighbors of the victim's who advised him the victim never let anyone drive his new pickup; 5) Connie Lord had advised the OSBI that Appellant was in possession of the victim's pickup and that Appellant had stated he had killed the victim and taken his pickup and billfold; and 6) on November 16, 1996, the victim's pickup was involved in an accident in which Appellant was the driver and the victim was not present. This information was sufficient for the magistrate to find probable cause existed to issue an arrest warrant for Appellant for the unauthorized use of the victim's vehicle.
Further, we find Ms. Lord's statements sufficiently reliable as they were corroborated by her presence with Appellant in the victim's pickup and evidence that Appellant did in fact have an accident while driving the pickup. The information in the affidavit does not have to be sufficient to sustain a conviction, but only to establish probable cause that a crime had been committed and that Appellant was involved in the crime. See Mollett, 939 P.2d at 7. Here, the statements in the affidavit met that standard and the trial court properly overruled the motion to suppress.
Appellant also argues the arrest was pretextual and a subterfuge designed to facilitate a "fishing expedition" for the State into suspicions that the victim had been murdered. At the suppression hearing, Sheriff Hanes testified he did not believe he had sufficient information to establish probable cause for the homicide at the time he prepared the affidavit for the arrest warrant. Further, the warrant was sought after receiving information from the sheriff's office in Chandler concerning the one car accident involving Appellant and the victim's pickup. While Sheriff Hanes may have had a suspicion that Appellant was involved in the disappearance and possible murder of the victim, this did not preclude him from arresting Appellant for the unauthorized use of the victim's pickup, a crime for which the Sheriff did have probable cause to believe Appellant had committed. Here, the arrest warrant was obtained and served during the regular course of police work. Therefore, any inquiries into ulterior motives of the arresting officers is not relevant as their conduct in executing a properly obtained arrest warrant was justified. See Lyons v. State, 787 P.2d 460, 463 (Okl.Cr.1989). Accordingly, this assignment of error is denied.
FIRST STAGE JURY INSTRUCTIONS
A.
In his fourth proposition of error, Appellant attacks the trial court's failure to sua sponte instruct the jury on voluntary intoxication. Reviewing for plain error only, we find none. Cheney v. State, 909 P.2d 74, 90 (Okl.Cr.1995).
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