State v. Mannhalt

• Decision Date: 17 January 1983
• Docket Number: No. 10794-1-I,10794-1-I
• Citation: 33 Wn.App. 696,658 P.2d 15
• Parties: STATE of Washington, Respondent, v. Guenter MANNHALT, Appellant.
• Court: Washington Court of Appeals

Page 696

33 Wn.App. 696

658 P.2d 15

STATE of Washington, Respondent, v. Guenter MANNHALT, Appellant.

No. 10794-1-I.

Court of Appeals of Washington,

Division 1.

Jan. 17, 1983.

Rehearing Denied March 31, 1983.

Kempton, Savage & Gossard, Deborah J. Youngblood, James S. Kempton, Seattle, for appellant.

Norman K. Maleng, King County Pros. Atty., H. Duane Evans, Deputy Pros. Atty., Seattle, for respondent.

CORBETT, Judge.

Defendant, Guenter Mannhalt, appeals his judgment and sentence for one count of conspiracy to commit robbery in the first degree, six counts of robbery in the first degree, one count of attempted robbery in the first degree, one count of possessing stolen property in the first degree, and two counts of possessing stolen property in the second degree. A separate judgment and sentence for an additional charge of possessing stolen property in the second degree, which was consolidated at trial and for the purpose of review, has also been appealed. We affirm.

On October 17, 1980, a search, pursuant to a warrant, was conducted at defendant's place of business in Seattle. Hundreds of items were seized, some of which were later identified as stolen. Following execution of the search warrant, five men admitted their involvement in 10 restaurant robberies in the Seattle area. They implicated the defendant as an accomplice in the robberies when they testified for the State at defendant's trial.

An extensive pretrial hearing was conducted on defendant's motion to suppress the evidence seized pursuant to the search warrant. The warrant had been issued in Bellingham by a superior court judge for Whatcom County. Before issuing the warrant, the judge heard testimony, under oath, from an informant and a Whatcom County deputy sheriff. The application for the warrant occurred in the early morning hours and apparently was presented to the judge at his home. The testimony was electronically recorded and later transcribed. The transcribed proceeding required 22 typewritten pages. No written affidavit supporting the warrant application was submitted.

Defendant assigns error to denial of his motion to suppress on several grounds. First, he contends that suppression is called for because the warrant was not issued on affidavit, as required by CrR 2.3(c), which states: "A warrant shall issue only on an affidavit or affidavits establishing the grounds for issuing the warrant...."

A signed affidavit is not a constitutional requirement for issuance of a warrant. State v. Malbeck, 69 Wash.2d 695, 697, 419 P.2d 805 (1966); State v. Walcott, 72 Wash.2d 959, 967, 435 P.2d 994 (1967), cert. denied, 393 U.S. 890, 89 S.Ct. 211, 21 L.Ed.2d 169 (1968). The use of a signed affidavit is an alternative procedural requirement, as evidenced by the next sentence of the cited rule: "Such affidavit or affidavits may consist of an officer's sworn telephonic statement to the judge; ..." Use of sworn testimony, contemporaneously recorded, is substantial compliance with the intent and purpose of the rule. Unless the defendant can demonstrate a disadvantage resulting from the failure to strictly comply with the rule, the validity of the warrant must be upheld. State v. Parker, 28 Wash.App. 425, 427, 626 P.2d 508 (1981); United States v. Vasser, 648 F.2d 507, 511 (9th Cir.1980), cert. denied, 450 U.S. 928, 101 S.Ct. 1385, 67 L.Ed.2d 360 (1981).

Defendant also contends that the warrant was defective for lack of probable cause. The test for determining the constitutional reasonableness for issuance of a search warrant was set out in State v. Patterson, 83 Wash.2d 49, 515 P.2d 496 (1973), as follows:

Do the documents or testimony supporting the warrant give a fair-minded, independent judicial officer, on considering all of the facts and circumstances set before him on oath or affirmation, good reason to issue the warrant?

Id. at 52, 515 P.2d 496.

Thus, when all of the circumstances as related under oath to the issuing magistrate are considered, the question of probable cause is reduced to whether there is a "substantial basis" for the warrant.

Id. at 55, 515 P.2d 496. Under the two-pronged test of Aguilar ¹-Spinelli, ² probable cause is established when, from the facts presented, a magistrate can make an affirmative independent determination that both (1) the information, and (2) the sources of the information are reliable. State v. Smith, 28 Wash.App. 387, 389-90, 624 P.2d 191 (1981). The officer testified under oath, and his statements of personal knowledge are presumptively reliable. State v. Matlock, 27 Wash.App. 152, 155, 616 P.2d 684 (1980); State v. Smith, 93 Wash.2d 329, 352, 610 P.2d 869 (1980), cert. denied, 449 U.S. 873, 101 S.Ct. 213, 66 L.Ed.2d 93 (1980). The informant also appeared before the court to testify under oath, and made statements against his penal interest. These are substantial positive factors in evaluating his credibility. State v. Sainz, 23 Wash.App. 532, 535-36, 596 P.2d 1090 (1979); State v. Lair, 95 Wash.2d 706, 711, 630 P.2d 427 (1981). The deputy sheriff verified a portion of what the informant told the court, and the judge who issued the warrant specifically found the informant to be believable. The credibility prong of the Aguilar-Spinelli test was, therefore, met.

The information presented also demonstrated a sound basis of personal knowledge. The deputy sheriff had made observations which were confirmed by the informant. The informant, who had worked for the defendant for several years, testified to personal observations and involvement in criminal activity which implicated the defendant and the premises to be searched. The informant's testimony indicated that the items sought were presently located at defendant's place of business and specified where they would be found on these premises. Thus, the "basis of knowledge" prong of Aguilar-Spinelli was also satisfied. State v. Maffeo, 31 Wash.App. 198, 200-201, 642 P.2d 404 (1982). There was probable cause for issuance of the search warrant.

Defendant next contends that the trial court erred by denying his motion for an evidentiary hearing concerning the veracity of the search warrant application. The motion was based upon specific instances of allegedly false, misleading, negligent, inaccurate or incomplete statements made by the deputy sheriff and informant. The alleged misrepresentations were discovered through subsequent testimony of the witnesses in two Whatcom County superior court trials. The learned, assiduous judge who ruled on the suppression motion found that:

VI. Chief Deputy Gill negligently misrepresented facts regarding conversations between undercover police officers and the defendant. Gill's misrepresentation imputed to the defendant knowledge of Taa's and Kline's illegal drug transactions with undercover police officers.

VII. Excision of Gill's misrepresentation from the application for search warrant does not affect the determination of probable cause.

VIII. Eric Taa's [the informant] statement to Judge Forrest was based upon his personal observations at the defendant's business premises while employed by him. Taa's observations included the defendant's possessing stolen property (including guns) and illegal drugs (specifically "speed") at his business premises over a period of more than a year, as well as within a few hours prior to Taa's giving the sworn statement.

IX. Taa intentionally misrepresented facts regarding events occurring at defendant's business premises during the early evening of 16 October 1980. Taa's misrepresentation imputed acquisition from the defendant at his business premises of the guns and drugs which subsequently were seized from Kline and Taa during their arrest in Whatcom County the same evening.

X. Excision of Taa's misrepresentations would affect the determination of probable cause. If excised, insufficient facts would exist to support probable cause to believe stolen guns and/or drugs would be located at defendant's business premises.

XI. Eric Taa is not and was not a police officer. The police officer affiant, Chief Deputy Gill, did not know that Taa was misrepresenting facts to Judge Forrest nor did he have reason to suspect such misrepresentation.

XII. Judge Forrest's conclusion that Taa's information was reliable is supported (1) by the fact that Taa gave his statement under oath and after being advised of his rights pursuant to Miranda v. Arizona; (2) by the fact that Taa's statement was self-incriminating and therefore against his penal interest; (3) by the fact that the gun seized from Kline had been verified by police as stolen corroborating Taa's description of it as stolen; and (4) by the judge's personal observation of Taa's demeanor and manner while giving the sworn statement.

XIII. Sufficient information was presented in support of the application for search warrant to warrant a neutral and detached magistrate in reasonably concluding there still would be found on the premises of the International House of Donuts illicit drugs and stolen guns.

The test is set out in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978):

[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by...