State v. Stephens , 37 Wash. App. 76 ( 1984 )

Green, A.C.J.

(dissenting)—I dissent. In my view, the majority's analysis is an overly technical application of the rules pertaining to search warrants and loses sight of the purpose behind those rules.

It is well established that warrants are to be interpreted in a practical and realistic manner. To obtain a search warrant, police officers are not required to produce proof beyond a reasonable doubt or even prove a prima facie case of criminal activity; they need only present enough facts to enable a magistrate to conclude there are reasonable grounds to support a probability of criminal activity. Whether the standard has been met is viewed from the standpoint of a person of ordinary caution. State v. Seagull, 95 Wn.2d 898, 906-07, 632 P.2d 44 (1981). As stated by the Court in Illinois v. Gates,_U.S._, 76 L. Ed. 2d 527, 103 S. Ct. 2317, 2328 (1983) (quoting United States v. Cortez, 449 U.S. 411, 418, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981)):

Perhaps the central teaching of our decisions bearing on the probable cause standard is that it is a "practical, nontechnical conception." . . .

The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

Further:

[W]hen a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.

(Italics ours.) United States v. Ventresca, 380 U.S. 102, 109, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965); State v. Walcott, 72 Wn.2d 959, 962, 435 P.2d 994 (1967), cert. denied, 393 U.S. 890 (1968).

It is true the preference given to warrants should not become a subterfuge for searches based on merely the officer's conclusion that probable cause exists. United States v. Ventresca, supra; Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964). Nor should this preference condone warrants issued on representations made in reckless disregard for the truth or deliberate falsehoods. Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, 2684 (1978). However, in my view, the facts here do not fall within either of these principles.

The officers in this case testified they positioned themselves so they could see or hear anyone coming into the area in which the marijuana patch was located. They observed defendant drive from his home which was closer than any other residence to the patch and down the only road leading into it. They then heard the motor to his engine stop. After about an hour, they observed defendant exit and proceed back to his home. They neither saw nor heard anyone else enter during this time. Before defendant's entry into the patch, the marijuana plants were dry. After he left, they were wet.

The majority concludes that by the fact the officers did not actually see defendant water the plants, their representation was per se deliberate, or in reckless disregard of the actual facts. From the officers' testimony, I find no such deliberate misrepresentation. To the contrary, the statement was based upon the only possible conclusion which could be drawn. Certainly these facts do not involve the "spector of intentional falsification" to which the Court in Franks v. Delaware, at 168, refers: i.e., that "a police officer [is] able to use deliberately falsified allegations to demonstrate probable cause, and, having misled the magistrate, then [is] able to remain confident that the ploy was worthwhile." The teaching of Illinois v. Gates, 103 S. Ct. at 2330-31, is appropriate here:

[A]ffidavits "are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleading have no proper place in this area." Ventresca, supra, 380 U.S., at 108, 85 S.Ct., at 745. Likewise, search and arrest warrants long have been issued by persons who are neither lawyers nor judges, and who certainly do not remain abreast of each judicial refinement of the nature of "probable cause." . . . [M]any warrants are—quite properly, [Spinelli v. United States, 393 U.S. 410 (1969)]—issued on the basis of nontechnical, common-sense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings.

(Citation omitted.) I agree with the trial court that there was no showing of deliberate or reckless misrepresentation under Franks.

Nor do I find the officer's affidavit to be impermissibly conclusory. First, contrary to the cases cited by the majority, the officers here did not merely set forth their conclusion that probable cause existed or their information was reliable. To the contrary, they alleged an ultimate fact; i.e., defendant watered the plants. No conflicting inferences could be drawn from the facts. It is as clear as two plus two equals four. While the officer's statement could have been more precise, we should not suppress the search because the affidavit stated the obvious and clearly showed probable cause for a search warrant.

Moreover, the affidavit contained additional facts. The officers found a bag of marijuana on defendant's motorcycle. After his arrest Mr. Stephens asked his wife to bring him a shirt from the house. "His wife returned with the shirt and in the pocket was a small amount of marijuana. The marijuana was very green and looked to be fresh." The affidavit further showed Deputy Sheriff Kissinger was experienced in drug identification.

In State v. Walcott, supra at 962-63, the court (quoting Aguilar v. Texas, 378 U.S. at 111) stated:

Thus, when a search is based upon a magistrate's, rather than a police officer's, determination of probable cause, the reviewing courts will accept evidence of a less "judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant," [Jones v. United States, 362 U.S. 257, 270 (1960)], and will sustain the judicial determination so long as "there was substantial basis for [the magistrate] to conclude that narcotics were probably present..."

In my opinion, the affidavit here set forth an adequate factual basis for the magistrate to conclude defendant had marijuana in his home. Hence, the search warrant should have been upheld.

As noted in Gates, the reasonable person standard of interpreting search warrants is designed to keep the law in tune with the realities of criminal investigation and "common-sense conclusions about human behavior ..." The position taken by the majority is hypertechnical and deviates from the approach espoused in Gates.

For the foregoing reasons, I would affirm.

Reconsideration denied April 5, 1984.

Review denied by Supreme Court June 22, 1984.