State v. Cord

• Citation: 693 P.2d 81,103 Wn.2d 361
• Decision Date: 10 January 1985
• Docket Number: No. 50381-8,50381-8
• Parties: The STATE of Washington, Respondent, v. Ronald R. CORD, Appellant.
• Court: Washington Supreme Court

Page 361

103 Wn.2d 361

693 P.2d 81

The STATE of Washington, Respondent, v. Ronald R. CORD, Appellant.

No. 50381-8.

Supreme Court of Washington,

En Banc.

Jan. 10, 1985.

Robert G. Eisele, Spokane, for appellant.

John G. Wetle, Stevens County Prosecutor, Dan B. Johnson, Deputy Pros. Atty., Colville, John E. Lamp, Sp. Deputy Prosecutor, Spokane, for respondent.

UTTER, Justice.

Can a search warrant be valid when it is based upon an affidavit which contained a relevant omission of fact? If the warrant is facially valid and the omission neither intentional nor made with reckless disregard for the truth, such a warrant may be upheld and we do so in this case.

On August 20, 1982, Captain Ken Meyer of the Stevens County Sheriff's Department received an anonymous tip that appellant, Ronald Cord, was growing marijuana at his ranch. The tip specified where marijuana was being grown on the property. Three days later, Captain Meyer conducted an aerial surveillance of appellant's property from an altitude of 3,400 feet above ground level. He took pictures of appellant's property from this height, using a 50mm lens to reflect accurately what he saw. On that same day, Captain Meyer obtained a search warrant from Stevens County District Court Judge David E. McGrane.

Captain Meyer's affidavit for the warrant recited the fact that he had received an anonymous tip that appellant was growing marijuana on his property and that he thereafter conducted an aerial surveillance of the Cord property. The affidavit provided no further information about the informant, nor did it indicate that the informant had provided specific information regarding the marijuana's location on the property. The affidavit did not set forth the altitude at which Meyer had identified the marijuana, nor were the aerial photographs available for the judge to view before issuing the warrant. A subsequent search of the Cord residence resulted in the seizure of several bags of marijuana as well as a substantial amount of marijuana paraphernalia. Additionally, 131 live marijuana plants were seized in an unenclosed area 300 to 500 feet from the Cord residence.

The appellant was placed under arrest and charged with a violation of RCW 69.50.401(a)(1)(ii) for manufacture and possession of marijuana. He moved the court for an order suppressing all evidence seized from his property on grounds that the search had violated his right to be free from all unreasonable searches and seizures under the fourth amendment to the United States Constitution.

At the suppression hearing, the testimony offered by Captain Meyer revealed that the judge who issued the warrant had been advised on previous occasions that the standard height used by the sheriff's department when identifying marijuana was 1,000 feet. Captain Meyer was fairly certain he did not tell the judge that he had been flying 3 1/2 times the standard height when he identified the marijuana on appellant's property. There was no evidence to support appellant's argument that this misrepresentation was made intentionally or with reckless disregard for the truth.

A defense expert testified that marijuana cannot be identified at a height of 3,400 feet. Captain Meyer also testified that it was difficult to identify marijuana from 3,400 feet and that he would not expect anyone to identify it from the photographs he had taken from the plane. He based his ability to distinguish the plants from other shrubbery on the Cord property on their peculiar shade of green and on the information provided him by the informant.

The trial court entered the following findings of fact:

2.3 On August 20, 1982, Captain Meyer flew over the Cord property at 3400 feet. The normal overflight altitude was 1,000 feet, thus this was a substantial exception to the normal procedure.

2.4 Capt. Meyer had successfully flown on approximately 10 marijuana flights which resulted in the discovery of marijuana....

2.5 No record was made of the application for the search warrant, no summary of additional evidence was made.

* * *

2.6A Judge David McGrane had been previously advised that generally overflights are conducted at 1,000 feet elevation.

* * *

2.8 No additional information was provided as to the height of the flight.

2.9 Without information as to the location of marijuana it is impossible to identify marijuana from 3400 feet.

Clerk's Papers, at 48-49. The court entered the following conclusions of law:

3.1 The search warrant for controlled substances was properly issued as Judge David McGrane could find probable cause based upon the information provided.

* * *

3.3 Captain Meyer's omission of relevant information did not constitute a reckless disregard for the truth, nor was it false; therefore, the defendant failed to make a substantial showing of misrepresentation.

* * *

3.5 The Court does not decide whether the open fields doctrine applies in this case.

Clerk's Papers, at 49. The court denied appellant's motion to suppress.

On April 1, 1983, upon stipulation by appellant that there was sufficient evidence to convict, the court found him guilty, entered Findings of Fact and Conclusions of Law and entered Judgment and Sentence against appellant. Appellant appealed to the Court of Appeals which certified the case to this court.

I

Appellant first contends that the aerial surveillance of his property at 3,400 feet was a search necessitating a warrant under Const. art. 1, § 7. In State v. Myrick, 102 Wash.2d 506, 688 P.2d 151 (1984), the aerial surveillance at issue had been conducted without visual enhancement devices at an altitude of 1,500 feet. We there held that this surveillance was not unreasonably intrusive and did not constitute a search under Const. art. 1, § 7. Appellant, here, has offered nothing to persuade us that the overflight at 3,400 feet was unreasonably intrusive. As in Myrick, the police here viewed the contraband without visual enhancement devices and from a lawful vantage point. We therefore find this aerial surveillance of appellant's property was not a search under Const. art. 1, § 7.

Appellant challenges the sufficiency of the affidavit on the following grounds: (1) that the affidavit was facially deficient due to the omission of the altitude at which the affiant had identified the marijuana, and (2) that the affiant made a material omission of fact which, if included in the affidavit, would have precluded a finding of probable cause.

II

Appellant asserts that the affidavit was insufficient to establish probable cause because it neither contained sufficient information to establish the reliability of the anonymous informant nor a reference to the height at which the marijuana was identified. We do not address appellant's contention regarding the anonymous informant, because we find the affidavit sufficient to establish probable cause absent information provided by the informant.

To establish probable cause the affidavit must set forth sufficient facts to lead a reasonable person to conclude there is a probability that the defendant is involved in criminal activity. State v. Seagull, 95 Wash.2d 898, 906-907, 632 P.2d 44 (1981); State v. Henker, 50 Wash.2d 809, 811, 314 P.2d 645 (1957). Great deference is accorded the issuing magistrate's determination of probable cause. State v. Smith, 93 Wash.2d 329, 610 P.2d 869, cert. denied, 449 U.S. 873, 66 L.Ed.2d 93, 101 S.Ct. 213 (1980).

Here, the affidavit set forth that the affiant was a police officer with 13 years experience in the Stevens County Sheriff's Department. He had completed marijuana identification school and had attended numerous drug identification seminars. He had experience identifying marijuana in all stages of its growth; and he had identified patches of marijuana from an airplane on 10 prior occasions each of which resulted in the seizure of marijuana. The affidavit then set forth that the affiant had conducted a flyover of appellant's property and had "observed and identified the marijuana growing in a field on the above described property." It then described the precise area to be searched and the location of the marijuana. There is nothing speculative about the affiant's statements here. They provided a sufficient basis for the issuing judge to conclude that a crime was probably being committed.

Information regarding the altitude at which the identification was made would have been helpful to the judge's determination. The inclusion of this information is preferable. We cannot say, however, that the first-hand identification of contraband by an officer with considerable training and experience was an insufficient basis for the magistrate's finding of probable cause.

III

Does omission of this information invalidate the warrant?

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that where a

defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

Franks, at 155-56, 98 S.Ct. at 2676-77. If, at the hearing, the defendant establishes his allegations by a preponderance of the evidence, the material misrepresentation will be stricken from the affidavit. If the affidavit then fails to support a finding of probable cause, the warrant will be held void and the evidence excluded. The Franks test for material misrepresentations has also been extended to material omissions of fact. United States v. Martin, 615 F.2d 318 (5th Cir.1980); United States v. Park, 531 F.2d 754, 758-59 (5th Cir.1976).

Appellant disputes the trial court's finding that the affiant's omissions were neither intentional nor made with reckless disregard for the truth. Initially, we note the great deference that is to be given the...