Summary
stating that, in the context of a search warrant for a suspected drug house, any deficiency concerning a middleman's reliability was overcome by law enforcement's “observation of two separate [drug] transactions involving the same residence and the same pattern of activity”
Summary of this case from State v. HernandezOpinion
No. 13461-2-I.
July 23, 1984.
[1] Searches and Seizures — Warrant — Affidavit — Test. The sufficiency of an affidavit in support of a search warrant is judged by the standard of reasonableness under the totality of the circumstances. Doubts are resolved in favor of issuing the warrant.
[2] Searches and Seizures — Warrant — Affidavit — Informant's Use of Third Person. When an affidavit supporting a search warrant is based in part on information gathered by an informant with the cooperation of a third person, deficiencies in knowledge of the third person's reliability can be overcome by the affiant's own observations and a showing of the informant's veracity and the basis for his knowledge.
Nature of Action: Prosecution for possession of marijuana with intent to deliver. The affidavit supporting the search warrant for the defendant's house was based on information provided by an informant regarding the defendant's sale of marijuana to a third party.
Superior Court: The Superior Court for Snohomish County, No. 83-1-00139-5, John E. Rutter, Jr., J., on June 28, 1983, suppressed the marijuana seized at the defendant's house.
Court of Appeals: Holding that the affidavit was sufficient under the totality of the circumstances, the court reverses the suppression.
Seth Dawson, Prosecuting Attorney, and S. Aaron Fine, Deputy, for appellant. Maxine Stansell of Snohomish County Public Defender Association, for respondent.
The State appeals an order suppressing evidence. We reverse and remand.
Morehouse was charged by information with possession of marijuana with intent to deliver. He moved to suppress the evidence seized from his home during execution of a search warrant. The trial court granted the motion on the ground that the affidavit in support of the warrant did not establish the middleman's basis of knowledge or credibility.
The affidavit in support of the search warrant recited the following facts:
1. Over a 6-month period, informant had given affiant accurate information regarding controlled substances.
2. During this period, informant had made six controlled buys of drugs under affiant's supervision and provided information for search warrants leading to six arrests and seizure of large quantities of marijuana and other controlled substances.
3. Informant had been involved in the drug scene for 3 1/2 years and was knowledgeable about the different types of drugs available in the community.
4. During the past 72 hours, informant told affiant that a white male adult (middleman) could purchase marijuana for informant, that he and middleman would drive to the area of Frontier Estates in Everett, and that middleman would park his vehicle a short distance from a residence where he would purchase marijuana.
5. During the past 72 hours, affiant took informant to a residence where the informant stated middleman lived. Informant entered the residence and shortly thereafter left the residence with a white male.
6. Affiant saw informant and middleman enter middleman's car, drive to Frontier Estates, and park the car near 12th St. N.E.
7. Affiant saw middleman enter a residence, and about 20 minutes later leave the residence, walk back to his car, and drive away with informant.
8. Affiant saw informant and middleman arrive at middleman's house in middleman's car.
9. Informant gave affiant marijuana which informant said middleman acquired from a residence located on 12th St. N.E. Informant said that middleman gave him the marijuana immediately upon returning to the vehicle.
10. During the past 72 hours, informant and middleman arranged a second buy. Affiant observed the informant and middleman follow the same procedure used in the first buy.
11. Informant told affiant that middleman stated "`his man' had a large quantity of Marijuana that he needed to unload."
The warrant was issued on the basis of this information. The search of the defendant's house resulted in seizure of 374.5 grams of marijuana. During the search, the defendant admitted owning the marijuana.
[1] The magistrate is entitled to draw all reasonable inferences from the facts and circumstances set forth in the affidavit to determine the probability that a search will reveal evidence of a crime. State v. Adame, 37 Wn. App. 94, 99, 678 P.2d 1299 (1984). Reasonableness is the ultimate test, whether the evaluation is made under our state constitution, State v. Patterson, 83 Wn.2d 49, 52, 515 P.2d 496 (1973), or the federal constitution. Illinois v. Gates, 462 U.S. 213, 76 L.Ed.2d 527, 103 S.Ct. 2317 (1983) (rejecting the 2-pronged Aguilar - Spinelli test as hypertechnical and adopting a "totality of the circumstances" analysis); accord, Massachusetts v. Upton, ___ U.S. ___, 80 L.Ed.2d 721, 104 S.Ct. 2085 (1984). Doubts should be resolved in favor of the warrant. State v. Partin, 88 Wn.2d 899, 904, 567 P.2d 1136 (1977).
Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509 (1946).
Spinelli v. United States, 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584 (1969).
[2] The State contends that the trial court erred by applying the Aguilar-Spinelli test instead of considering the "totality of the circumstances" in determining validity of the warrant. An informant's "veracity" and "basis of knowledge" continue to be relevant to the determination of probable cause, but we do not require a "slavish adherence" to the 2-pronged Aguilar-Spinelli test. State v. Bowers, 36 Wn. App. 119, 122, 672 P.2d 753 (1983). When the information furnished by an informant is based upon hearsay statements of a middleman, any deficiency concerning the reliability of the middleman may be overcome. The police officers' own observations and the informant's experience were adequate for that purpose in this case. The credibility and reliability of an informant assumes greater importance when he serves as a conduit for information. See State v. Yaw, 58 Haw. 485, 572 P.2d 856, 859 (1977).
Defendant relies upon State v. Smith, 28 Wn. App. 387, 391, 624 P.2d 191 (1981) to support his assertion that the affidavit must contain information establishing the credibility and reliability of the middleman as well as that of the primary informant. There is a key distinction between this case and Smith. Unlike the affidavit at issue here, the affidavit in Smith recited no facts concerning the reliability of the informant. Moreover, the officers' observation of two separate transactions involving the same residence and the same pattern of activity made it improbable that the middleman was attempting to set up the defendant. The qualifications of the informant and the corroborative observation of the officers are unchallenged. On balance the affidavit could be relied upon to issue the warrant. The trial court erred by suppressing the evidence.
Reversed and remanded for denial of the motion to suppress.
ANDERSEN and RINGOLD, JJ., concur.
Remanded by Supreme Court to the Court of Appeals November 2, 1984.