State v. White ( 1986 )

Grosse, J.

Perry Michael White and Timothy Kevin Shadduck appeal their convictions for possession of marijuana. Shadduck also appeals his conviction for possession of cocaine. Both White and Shadduck contend that there was no probable cause to issue the warrant under which the evidence was obtained and appeal the denial of their motion to suppress. We agree and reverse.

The evidence in this case was obtained under the guise of a search warrant. The affidavit in support of the issuance of the search warrant contained observations of a citizen in good standing, who wished to remain anonymous. Those observations included the following indicia located at White's and Shadduck's residence: bright lights emanating from the garage, noises from a fan in the garage, heavy foot and vehicle traffic to the residence, and the fact that the visitors had stays of short duration. The citizen did not say that he knew that marijuana was being grown there but rather that he suspected it because he had read in the newspaper that these facts were indicative of marijuana growing. These facts, together with the observation that the garage windows were covered, were independently verified by a detective. The police had obtained the electrical power consumption on the residence through the use of a special inquiry judge subpoena. Those records demonstrated an almost twofold increase in power for a 2-month period.

This issue on a similar fact pattern was addressed in a recent decision by this court in State v. McPherson, 40 Wn. App. 298, 698 P.2d 563 (1985). In McPherson, a detective verified an anonymous tip regarding marijuana dealing by his observations of condensation on windows, black plastic covering the garage windows, and potting soil near the garage door. A printout from Seattle City Light demonstrated a two- to three-fold increase in power use for the time that McPherson occupied the premises. The McPherson court held that the anonymous tip, the follow-up police investigation, and the increased power usage were insufficient to establish probable cause since the information was not indicative of "criminal activity, suspicious activity or any activity at all." McPherson, at 301. The McPherson court specifically addressed the increase in power wattage and held that although unusual such increase was susceptible to too many other plausible explanations.

In the instant case neither the informant's tip nor the detective's independent investigation was sufficient to establish probable cause. Mere verification of innocent activity by the police is unilluminating as to any criminal activity. As the Supreme Court in State v. Jackson, 102 Wn.2d 432, 688 P.2d 136 (1984), stated:

Corroboration of public or innocuous facts only shows that the informer has some familiarity with the suspect's affairs. Such corroboration only justifies an inference that the informer has some knowledge of the suspect and his activities, not that criminal activity is occurring. Corroboration of the informer's report is significant only to the extent that it tends to give substance and verity to the report that the suspect is engaged in criminal activity.

(Citations omitted.) Jackson, at 438.

The informant did not report that he had seen or heard any evidence of criminal activity. The affidavits only support a suspicion, not a probability, of criminal activity.

Contrary to the dissent's position, we are not here requiring a prima facie showing of criminal activity. We are, however, requiring something more than mere suspicion and while we agree with the dissent that deference must be given to the magistrate issuing the warrant, such deference is not without limits.

Reviewing courts will not defer to a magistrate's decision where such a decision is based on information which is insufficient to determine probable cause. Aguilar v. Texas, 378 U.S. 108, 114-15, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964). See also Beck v. Ohio, 379 U.S. 89, 95, 13 L. Ed. 2d 142, 85 S. Ct. 223 (1964), wherein the Court held that

the record . . . does not contain a single objective fact to support a belief by the officers that the petitioner was engaged in criminal activity at the time they arrested him.

(Italics ours.)

In order to establish probable cause the affidavit must set forth sufficient facts to lead a reasonable person to conclude that there is a probability that the defendant is involved in criminal activity. State v. Cord, 103 Wn.2d 361, 365, 693 P.2d 81 (1985). See also Nathanson v. United States, 290 U.S. 41, 46-47, 78 L. Ed. 159, 54 S. Ct. 11 (1933), holding that an affidavit is legally insufficient if it contains no underlying facts or circumstances from which the magistrate can deduce probable cause and is nothing more than a declaration of suspicion and belief. None of the cases cited by the dissent present a similar factual pattern to the case at bar. In each of those cases there existed extrinsic objective facts indicative of criminal activity. A recent decision of the Court of Appeals, State v. Sterling, 43 Wn. App. 846, 719 P.2d 1357 (1986) is indicative. In Sterling, unlike the present case, the informant clearly stated that criminal activity was occurring. Moreover, the independent investigation by the police in Sterling uncovered sufficient additional facts which corroborated the informant's tips.

Here, the police investigation of the power wattage and the independent surveillance do not suggest criminal conduct. See Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969), wherein the Court held that the Federal Bureau of Investigation's surveillance of the defendant and its investigation of telephone company records were insufficient despite the fact that Spinelli was "known" to be a gambler. As the Supreme Court stated:

But just as a simple assertion of police suspicion is not itself a sufficient basis for a magistrate's finding of probable cause, we do not believe it may be used to give additional weight to allegations that would otherwise be insufficient.

Spinelli, 418-19.

We are forced here, as the Supreme Court was in Spi-nelli, to state "we cannot sustain this warrant without diluting important safeguards that assure that the judgment of a disinterested judicial officer will interpose itself between the police and the citizenry." (Footnote omitted.) Spinelli, at 419. Mere suspicion is insufficient to establish probable cause. It was therefore error to issue the warrant without such probable cause, and the trial court erred in failing to suppress the evidence seized pursuant to the invalid search warrant.

The judgment is reversed.

Webster, J., concurs.