State v. Patterson

Utter, J.

(dissenting) — The State of Washington appeals from a superior court order quashing a search warrant and suppressing evidence in a criminal prosecution which charged the two defendants with unlawful possession of narcotics.

Two issues are present in this appeal: (1) whether the affidavit submitted in support of the petition for the search warrant was sufficient to allow a magistrate to independently find probable cause; and (2) if we determine the affidavit insufficient and thereby the search warrant’s issuance unlawful, should the exclusionary rule be rejected, permitting the admission of the seized evidence. I find the affidavit legally insufficient, as did the trial judge, and would, as he did, suppress the evidence.

Our answers to the questions posed by these issues must be governed by the fourth amendment to the United States Constitution and, under the supremacy clause, the United States Supreme Court’s interpretation of this amendment.

The fourth amendment, as interpreted by the United States Supreme Court, requires a magistrate, not the police officer, to determine the existence of probable cause to issue a search warrant. Where information from an informant, not present before the judge for examination, forms the basis of the affidavit, then the affidavit must set forth facts enabling the magistrate to independently judge the credibility of the informant and reliability of his or her information. When the affiant relies upon information from an informant to show probable. cause, the magistrate can only perform his constitutional duty of determining independently the existence or absence of probable cause, when such facts are present. Nathanson v. United States, 290 U.S. 41, 78 L. Ed. 159, 54 S. Ct. 11 (1933); Giordenello v. United States, 357 U.S. 480, 2 L. Ed. 2d 1503, 78 S. Ct. 1245 (1958); Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964); Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969); United States v. Ventresca, 380 U.S. 102, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965); Whiteley v. Warden, 401 U.S. 560, 28 L. Ed. 2d 306, 91 S. Ct. 1031 (1971); United States v. Harris, 403 U.S. 573, 29 L. Ed. 2d 723, 91 S. Ct. 2075 (1971).

The majority’s failure to analyze this question results in its overindulgence with nondispositive general rules regarding the latitude of a magistrate’s discretion and the nontechnical character of search warrant affidavits. I agree we should not be overly technical, but the majority’s approach “paints with too broad a brush.” The magistrate’s obligation is to give a commonsense reading to the affidavit, yet “[wjhere, as here, the informer’s tip is a necessary element in a finding of probable cause, its proper weight must be determined by a more precise analysis.” Spinelli v. United States, supra at 415.

The basis of the decisional law concerns the guarantee of the fourth amendment to the United States Constitution, which provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

(Italics mine.)

Determining the existence or absence of probable cause in a petition for a search warrant involves two essential stages. First, a set of “facts and circumstances” must be presented to a magistrate under oath or affirmation. Nathanson v. United States, supra at 46-47; Aguilar v. Texas, supra at 112; Spinelli v. United States, supra at 413. Second, the inference drawn from the presented facts must be “by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 14, 92 L. Ed. 436, 68 S. Ct. 367 (1948).

Thus, no magistrate may accept without question the complainant’s mere conclusion, but rather must abide by the two requirements announced in Aguilar, which together provide the minimum standards for finding probable cause. State v. Barnes, 76 Wn.2d 234, 236, 456 P.2d 337 (1969). First, where the affidavit relies on an informant, the magistrate “must be informed of some of the underlying circumstances from which the informant concluded” as he or she did, and second, “some of the underlying circumstances from which the officer concluded that the informant . . . was ‘credible’ or his information ‘reliable.’ ” Aguilar v. Texas, supra at 114.

Only if the affidavit provides “underlying circumstances” can the magistrate independently find the necessary probable cause to issue the search warrant. If the affidavit is “purely conclusory” the magistrate may not exercise his duty to find probable cause present. “Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police.” United States v. Ventresca, supra at 108, 109.

In applying these guidelines to the affidavit before us, I can only agree with the superior court judge who found the affidavit completely insufficient. The affidavit, set out in full in the appendix, recites that a Spokane police officer received information from a federal narcotics agent who had received information from an informant of the agent, who the federal agent alleges is reliable and credible. The remainder of the affidavit essentially recites the information supplied through this chain of information, and presents three additional items in a section titled “Continuation of Affiants Statement.”

In considering the information of the federal agent’s informant, there is absolutely no offer of facts, let alone the substantial offering required in cases involving hearsay (Jones v. United States, 362 U.S. 257, 269, 4 L. Ed. 2d 697, 80 S. Ct. 725, 78 A.L.R.2d 233 (1960)) by which the magistrate could judge independently whether the informant was indeed credible or his or her information indeed reliable. The only language in the affidavit going to either of these critical concerns, is the mere conclusion by the federal agent that the informant was reliable and credible. Furthermore, the affiant himself did not make even a conclusory statement of support for the informant’s veracity and the information’s reliability. All the affidavit contains in this regard is the federal agent’s faith in the information and its source, and there are no underlying circumstances bearing on the reasons for such faith enabling the magistrate to pass independent judgment.

Moreover, there is nothing to indicate that the informant’s information was not itself based on information from yet another source. See Spinelli v. United States, supra at 416. The affidavit here not only sets forth no facts or allegation that the Spokane officer (affiant) spoke with personal knowledge on the matters recited, it does not even contain allegations that the federal agent or the unidentified source spoke with personal knowledge. See Aguilar v. Texas, supra at 113. From what appears in the affidavit, the information recited may be the informant’s suspicion, belief, or mere conclusion. Such a chain of hearsay information, possibly not even originating with the anonymous informant, may not validly support a finding of probable cause.

Those portions of the affidavit regarding the reputation of the residence to be searched, fail to satisfy the tests announced in Aguilar, and in certain instances are mere statements of suspicion. The assertion by the affiant that detectives of the Spokane Vice Detail “have knowledge” of known criminals frequenting the house to be searched is made with nothing to indicate from where the information was obtained by the detail or how the affiant came into possession of it. Moreover, such an assertion, as well as the one alleging detectives in the detail “noticed considerable activity” at the residence, is nothing more than an expression of suspicion. Assertions of police suspicion that alone cannot provide a basis for a magistrate’s finding of probable cause, may not “be used to give additional weight to allegations that would otherwise be insufficient.” Spinelli v. United States, supra at 418-19.

Similarly, the assertion by the affiant that narcotics users entered the house in question from June 1970 till the present can create only suspicion, not probable cause, that narcotics are present. In addition, this information was obtained by the affiant from the Spokane Police Narcotics Section who, in turn, received it from a “reliable creditable informant . . . known for approximately sixteen (16) years” to the section’s lieutenant. This information fails to provide a basis for a finding of probable cause for the same reasons the information coming through the federal agent-informer chain is inadequate. There is absolutely no presentation of “underlying circumstances” by which a magistrate may independently consider the information provided in determining probable cause. All that is in the affidavit is the conclusory statement by the lieutenant, which is insufficient.

Finally, the statement in the affidavit that in early 1970 heroin capsules were found in a residence at East 6th Avenue simply cannot be considered as relevant for a search of another house at 613 South Sheridan. Nor is the additional statement that the heroin found at East 6th Avenue “according to our information” belonged to Ben Coleman (the suspected deliverer of narcotics to 613 South Sheridan) , for there is nothing to indicate to the magistrate from where such information was obtained.

The search warrant issued on such an affidavit cannot be sustained “without diluting important safeguards that assure that the judgment of a disinterested judicial officer will interpose itself between the police and the citizenry.” Spinelli v. United States, supra at 419.

The petitioner argues that United States v. Harris, supra, requires a different analysis because of its modifying impact on Aguilar and Spinelli. I cannot agree. In Harris, the Supreme Court found the affidavit sufficient. Upon analysis, the plurality opinions are fundamentally a continuation of past Supreme Court analyses of affidavits relying on informants. This opinion was 5-4 on result only. See Comment, The Undisclosed Informant and the Fourth Amendment: A Search for Meaningful Standards, 81 Yale L.J. 703, 704-708 (1972).

In the reasoning of the plurality opinion by Chief Justice Burger, belief in the informant, when taken with the affiant’s personal knowledge of the accused’s background, provided a permissible basis for a magistrate to find probable cause and issue a warrant. Another plurality concluded the informant’s statements against personal penal interest were the additional sufficient basis for relying upon the tip. In either situation, the facts now before us do not reveal similar circumstances. Neither the affiant Spokane officer, nor the federal agent, had any personal knowledge of defendants Morgan or Patterson; nor did the federal agent’s informant make any statements against his penal interest.

The majority opinion, while reciting the proper tests, completely mistakes the ultimate question. It is not, as they state, whether “the judicial officer who issued the search warrant abused his discretionary powers.” It is instead whether the affidavit supporting the search warrant, relying as it did upon unidentified, unsupported informants and hearsay, gave the magistrate a basis to independently find probable cause. This resolution of the serious question involved totally evades the mandate of Aguilar and its progeny and rubber stamps the police request for a warrant without any meaningful independent search for probable cause by the court. There is no case decided by either this court or the United States Supreme Court which takes this approach. The majority, concludes as it does despite its own recognition that the “affidavits or complaint must go beyond mere conclusions” and require the presentment of underlying circumstances.

The majority recognizes but fails to resolve the serious questions raised by the use of hearsay (Jones v. United States, supra) and informants (McCray v. Illinois, 386 U.S. 300, 18 L. Ed. 2d 62, 87 S. Ct. 1056 (1967)) in an affidavit petitioning a search warrant. The magistrate’s job of determining the existence of probable cause is made the more difficult, for the matter of police veracity is often raised in the anonymous informant situation. See Donnelly, Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 Yale L.J. 1091 (1951) and Grano, A Dilemma for Defense Counsel: Spinelli-Harris Search Warrants and the Possibility of Police Perjury, U. Ill. L.F. 405 (1971). “Though the police are honest and their aims worthy, history shows they are not appropriate guardians of the privacy which the Fourth Amendment protects.” Jones v. United States, supra, Douglas, J., dissenting at 273.

Since I find the issuance of the search warrant improper because it was based on an affidavit that does not permit a magistrate to find probable cause, I turn to petitioner’s contention that we repudiate the exclusionary rule.

The federal courts, since 1886, have had the exclusionary rule (Boyd v. United States, 116 U.S. 616, 29 L. Ed. 746, 6 S. Ct. 524 (1886) ), but the states have not been required to also adhere to the rule until 1964. Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, 84 A.L.R.2d 933 (1964). Washington has also adhered to the exclusionary rule. State v. Gibbons, 118 Wash. 171, 203 P. 390 (1922) ; State v. O’Bremski, 70 Wn.2d 425, 428, 423 P.2d 530 (1967).

I would affirm the decision of the superior court to quash the warrant and suppress the evidence.

Rosellini and Stafford, JJ., concur with Utter, J.

Petition for rehearing denied February 13, 1974.