State v. Franklin , 49 Wash. App. 106 ( 1987 )

Thompson, A.C.J.

Cheryle L. Franklin appeals the denial of her motion to suppress evidence as well as the judgment and sentence on her conviction for possession of marijuana with intent to deliver, RCW 69.50.401(a)(l)(ii). We reverse and dismiss.

Walla Walla City Police Officer M. J. Wood received a phone call from a "confidential" citizen advising him that Mrs. Franklin intended to bring one-half ounce of marijuana into the penitentiary during a visit with her husband scheduled for April 14, 1986. Based on the information received, the police officer obtained a warrant to search Mrs. Franklin. When she arrived at the penitentiary, she was served with the warrant. After being informed she could not withhold consent to search in the face of the warrant, Mrs. Franklin turned over approximately 20 grams of marijuana in a balloon removed from her vaginal area. She was arrested and charged with one count of possession of marijuana with intent to deliver.

Defense counsel sought to suppress the evidence seized, contending the affidavit supporting the search warrant lacked a showing of the basis of information and credibility of an undisclosed citizen informant. The motion to suppress the evidence was denied and the same arguments regarding lack of probable cause are presented to this court on appeal.

In summary, Officer Wood stated in his affidavit in support of the search warrant that within the past 48 hours he had received information from a confidential citizen information who asked to remain anonymous for fear of retribution. The officer concluded the informant was an "upstanding citizen with no criminal record and whose only motive for supplying the police with . . . information is to thwart a crime ..." The informant told the officer of a conversation with Mrs. Franklin that had occurred within the preceding 48 hours wherein Mrs. Franklin said she was going to bring one-half ounce of marijuana into the penitentiary during a visit with her husband which was scheduled for April 14, 1986. The informant said Mrs. Franklin drove a light blue hatchback car and described her as a large woman who had brought controlled substances into the penitentiary in the past, usually concealed between folds of her skin. Officer Wood further stated he had confirmed that Mrs. Franklin was due for a visit the afternoon of April 14.

When an informant's tip forms the basis for a search warrant, the affidavit in support of the warrant must establish the basis of information and credibility of the informant in order to evaluate the existence of probable cause. State v. Jackson, 102 Wn.2d 432, 433, 688 P.2d 136 (1984); see Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969); Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964). The two prongs of the Aguilar-Spinelli test have an independent status and both are required to establish probable cause. Jackson, at 437. However, if the informant's tip fails under either or both of the prongs, probable cause may yet be established by independent police investigation that "corroborates the tip to such an extent that it supports the missing elements of the Aguilar-Spinelli test". Jackson, at 438. Independent investigations must point to '"probative indications of criminal activity . . .'" Jackson, at 438 (quoting United States v. Canieso, 470 F.2d 1224, 1231 (2d Cir. 1972)). Innocuous details do not suffice to remedy a deficiency under either the basis of knowledge or the veracity prong. Jackson, at 438.

In State v. Northness, 20 Wn. App. 551, 555, 582 P.2d 546 (1978), the court outlined four general categories of informants:

Category 1: The informant remains wholly anonymous, even to the police.

Category 2: The informant's identity is known to the police, but not revealed to the magistrate. Different rules for establishing credibility must be applied, depending upon whether the informant is (1) a "criminal" or professional informant, or (2) a private citizen.

Category 3: The informant's identity (name and address) is disclosed to the magistrate.

Category 4: The situation described in State v. Chatmon, 9 Wn. App. 741, 515 P.2d 530 (1973) at page 748, footnote 4, as follows: "Where eyewitnesses to crime summon the police, and the exigencies are such (as in the case of violent crime and the imminent possibility of escape) that ascertainment of the identity and background of the informants would be unreasonable, the 'reliability' requirement might be further relaxed."

(Citation omitted.)

Unlike Northness, where an identified citizen informant's name and address were provided to the police officers and the magistrate, the informant in the instant case appears to fall within category 2—identity known to the police but not revealed to the magistrate. Categorization is difficult, however, because of the limited record before us.

Although the necessary showing of reliability may be relaxed when a citizen informant furnishes information, that information must still support an inference that he or she is telling the truth and establish a basis of knowledge. State v. Kennedy, 107 Wn.2d 1, 8, 726 P.2d 445 (1986); State v. Huft, 106 Wn.2d 206, 211, 720 P.2d 838 (1986); State v. Riley, 34 Wn. App. 529, 533, 663 P.2d 145 (1983).

In attempting to establish veracity or credibility, the police officer gave his personal opinion that the informant was an upstanding citizen since the informant had no criminal record, was motivated by a desire to thwart crime, and requested anonymity because of fear of retribution. To establish credibility here, one must rely solely on the officer's conclusions. Other than the officer's statement the informant did not have a criminal record, no facts were given that an impartial magistrate could weigh to determine if the informant was credible. This generic recitation is not sufficient to raise the requisite inference the informant was telling the truth. See State v. Wakeley, 29 Wn. App. 238, 628 P.2d 835, review denied, 95 Wn.2d 1032 (1981); State v. Chatmon, 9 Wn. App. 741, 515 P.2d 530 (1973) (reliability of unidentified citizen informant required corroboration by a description of him, his purpose for being at the locus of the crime, and the reason for desiring anonymity). Although the ultimate search and arrest resulted in confirmation of the details provided in the affidavit, no showing was made at the time the warrant issued that independent police investigation had resulted in corroboration of the informant's veracity. The only corroboration consisted of confirmation the defendant was going to visit her husband at the prison on the noted date. These details were innocuous and were of no benefit in establishing credibility.

Moreover, we concur with State v. Berlin, 46 Wn. App. 587, 589-93, 731 P.2d 548 (1987) wherein the court, under a similar factual challenge to the citizen informants' veracity, ruled the standard satisfied based on the disclosure of names and addresses to the police, as well as express language in the affidavit that:

Affiant has checked and found that the concerned citizens involved had no criminal background, came forward voluntarily, gave the appearance of being an honest citizen, and gave to affiant his or her name, phone number, and address to affiant but wishes to remain anonymous for fear of retaliation.

Berlin, at 591.

Like that in Berlin, our research indicates that no Washington case has found the veracity/credibility prong satisfied unless the citizen's identity was revealed to the magistrate. See Berlin, at 590; State v. Stock, 44 Wn. App. 467, 722 P.2d 1330 (1986); State v. Sheldon, 38 Wn. App. 195, 196, 684 P.2d 1350 (1984); State v. Hauser, 19 Wn. App. 506, 511 n.1, 576 P.2d 420, review denied, 90 Wn.2d 1022 (1978), cert. denied, 440 U.S. 960, 59 L. Ed. 2d 773, 99 S. Ct. 1503 (1979); State v. Braun, 11 Wn. App. 882, 886, 526 P.2d 1230 (1974). In fact, anonymity of a citizen informant may be one factor for finding no showing of reliability. Berlin, at 590 (citing State v. Huft, supra at 211).

Because the veracity of the informant was not adequately shown in the affidavit nor corroborated by police investigation, it is unnecessary to determine whether the second prong—basis of knowledge of the informant—was satisfied. The search warrant failed for lack of probable cause and the evidence should have been suppressed.

Reversed and dismissed.

Munson, J., concurs.