State v. Kennedy ( 1993 )

Alexander, C.J.

(dissenting) — I respectfully dissent from the majority opinion. I do so because I believe that the magistrate abused his discretion in issuing the search warrant. While I am not unmindful of the axiom that we must accord great deference to the magistrate's determination of probable cause, it is readily apparent to me that there was an insufficient showing made to the magistrate that criminal activity was probably taking place within the cottage at the Alderbrook Inn.

The defendants are correct when they argue that the facts presented to the magistrate, while perhaps suspicious, are almost entirely innocuous, and consistent with legal activity. The information provided to the magistrate that likely caused the most suspicion was that a "chemical odor" emanated from the cottage and the bedding taken from it. Significantly, though, the magistrate was not told what this odor resembled or what odor is generally associated with "trafficking in controlled substances". Without some factual information to tie the chemical odor to the allegedly illicit activity, the provision of that information to the magistrate did nothing to support the issuance of the warrant. Although the odor was later described at the suppression hearing as the odor of "ether", that fact was not made known to the magistrate. Even if it had been, it is of little value because again, there is no suggestion that the odor of ether is associated with the manufacture of controlled substances. Much the same can be said about the information that the occupants of the cottage were "stoned", because there is nothing to tie the observed condition to activities going on within the cottage.

In short, the information turned up by the independent investigation did not, by itself, furnish probable cause for the issuance of the warrant. Neither did it corroborate the tip of the informant to the extent that the Aguilar-Spinelli test can be said to have been satisfied. Consequently, the magistrate abused his discretion in issuing the warrant. Therefore, I would reverse.

Review denied at 123 Wn.2d 1031 (1994).