State v. Thetford

• Citation: 109 Wn.2d 392,745 P.2d 496
• Decision Date: 12 November 1987
• Docket Number: No. 53625-2,53625-2
• Parties: , 56 USLW 2321 STATE of Washington, Petitioner, v. Lynda THETFORD, Respondent.
• Court: United States State Supreme Court of Washington

Page 392

109 Wn.2d 392

745 P.2d 496, 56 USLW 2321

STATE of Washington, Petitioner, v. Lynda THETFORD, Respondent.

No. 53625-2.

Supreme Court of Washington En Banc.

Nov. 12, 1987.

John Raymond, Jefferson County Prosecutor, Steven L. Olsen, Deputy Prosecutor, Port Townsend, for petitioner.

Michael H. Rosen, Seattle, for respondent.

PEARSON, Chief Justice.

The issue presented is whether a known informant's involvement with and control by police can be so great that he or she no longer qualifies as a private individual, but is a de facto police officer for purposes of challenging the veracity of statements in a search warrant affidavit. We hold that under the facts in this case, the informant in question was an agent of the police. Accordingly, we affirm the trial court decision and order to produce the agent for respondent's upcoming suppression hearing.

Sergeant Robert Boice of the Port Townsend police department wrote an affidavit for a warrant to search the home of Lynda Thetford for items associated with the sale of cocaine. Sergeant Boice stated that in February 1986 he contacted the Portland police department for help in locating a "professional agent to assist in drug investigations." On the recommendation of a Portland detective, Sergeant Boice met with "Agent", who "agreed to move to Port Townsend and assist the Port Townsend Police Department in Drug Investigations." The police department agreed to "pay the Agent's living expenses while he stayed in Port Townsend--as he would have to quit his job to move here." The department also agreed to pay the agent "an additional, unspecified amount when the investigations were completed", if he provided reliable information resulting in arrests and seizure of evidence.

Sergeant Boice went on in the affidavit to describe the information "Agent" had provided regarding Ms. Thetford's activities. "Agent" reported Ms. Thetford sold cocaine to him and to several other people from a supply in her house.

The police obtained a warrant to search Ms. Thetford's house on the basis of Sergeant Boice's affidavit. The return on the warrant and the State crime lab report indicate the officers found about 28 grams of cocaine in her house. Respondent Thetford was charged with possession of cocaine with intent to deliver and keeping a dwelling resorted to by persons for the unlawful use of controlled substances.

Respondent moved to suppress the evidence seized from her home as the product of an illegal search and moved to dismiss or suppress for police misconduct. She further moved to compel the prosecutor to produce the individual described as "Agent" in Sergeant Boice's affidavit for her CrR 3.6 suppression hearing. In the alternative, respondent sought an in camera interrogation of "Agent" prior to a hearing on her motions. Respondent alleged that the search warrant had been obtained on the basis of deliberate or reckless misrepresentations. In her supporting affidavits, respondent named one Ron Baker as the person she suspected to be "Agent". Ms. Thetford admitted using cocaine with Ron Baker, but denied giving or selling it to him or to anyone else in his presence.

The trial court examined the affidavits submitted by the parties, heard oral argument from counsel on the matter, and found as a fact that "Agent" held himself out as Ron Baker to respondent and others. The court held that the informer's privilege does not apply to "Agent" because he "was a paid State agent directed and encouraged by the State." (Italics ours.) The court rejected the State's argument that "Agent" was immunized from production as a witness under the informer privilege. In its memorandum opinion, the trial court noted:

[T]he State argues at some length that neither of two exceptions to the informant's privilege apply in this case. That, however, is not the issue ... The issue is whether or not there is an informant's privilege. If there is, the defendant has made no showing that either of the exceptions apply. If there is not a privilege then we need not concern ourselves with the exceptions.

Citing the related cases of State v. Wolken, 103 Wash.2d 823, 700 P.2d 319 (1985), and State v. Mannhalt, 33 Wash.App. 696, 658 P.2d 15, review denied, 100 Wash.2d 1024 (1983), the trial court reasoned that the alleged informant's involvement with or control by the police was so great that he constituted a de facto police officer. See generally United States v. Gagnon, 635 F.2d 766, 769 (10th Cir.1980) (de facto police agents are cloaked with state authority and therefore subject to Fourth Amendment restraints); State v. Boynton, 58 Haw. 530, 574 P.2d 1330 (1978). The court therefore ordered the prosecutor to produce "Agent" at respondent's suppression hearing. The State moved for discretionary review of that order, and of the trial court's finding of fact. The Court of Appeals certified the motion to this court. The issue of whether the evidence should be suppressed is yet to be decided by the trial court.

The "informer's privilege", as it is usually called, is actually the State's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to law enforcement officers. Roviaro v. United States 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957); State v. Casal, 103 Wash.2d 812, 699 P.2d 1234 (1985). The privilege is codified in Washington by statute, RCW 5.60.060(5), and by court rule. CrR 4.7(f)(2) provides that "[d]isclosure of an informant's identity shall not be required where the informant's identity is a prosecution secret and a failure to disclose will not infringe upon the constitutional rights of the defendant."

The privilege is not absolute, however. The court must balance the public interest in the free flow of information for law enforcement purposes against the accused's right to prepare his or her defense. Roviaro, 353 U.S. at 62, 77 S.Ct. at 628. If disclosure of an informer's identity "is relevant and helpful to the defense ... or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure". Roviaro, 353 U.S. at 60-61, 77 S.Ct. at 627-628. Failure to compel disclosure under these circumstances will deprive defendant of a fair trial. State v. Harris, 91 Wash.2d 145, 149, 588 P.2d 720 (1978).

I

The State challenges the trial court's finding of fact that "Agent" held himself out to respondent and to others as "Ron Baker". Normally, a trial court's findings of fact will be upheld on appeal so long as they are supported by substantial evidence. Nichols Hills Bank v. McCool, 104 Wash.2d 78, 82, 701 P.2d 1114 (1985). Substantial evidence is evidence in sufficient quantum to persuade a fair-minded person of the truth of the stated premise. Ridgeview Properties v. Starbuck, 96 Wash.2d 716, 719, 638 P.2d 1231 (1982). This court is freer to review factual findings based solely on documentary evidence, as the trial court was in no better position than the appellate court to make observations of demeanor. Federal Way Family Physicians, Inc. v. Tacoma Stands Up For Life, 106 Wash.2d 261, 266, 721 P.2d 946 (1986); Davis v. Department of Labor & Indus., 94 Wash.2d 119, 124, 615 P.2d 1279 (1980). The trial court's finding that "Agent" held himself out to defendant and to others as Ron Baker was based on a consideration of five affidavits and the arguments and memoranda of law of counsel. Sergeant Boice stated in his affidavit that "Agent" was brought from outside of Port Townsend and hired to conduct drug investigations, that he began his work in March 1986 and continued into April. During that time he stayed at respondent's home at least once. The defense affidavits establish the time of Baker's arrival in Port Townsend in early March. They also show that during the same time period many people in Port Townsend were approached for drugs by a new arrival in town who introduced himself as Ron Baker. This individual left the area as soon as arrests were made at the close of the department's investigation. Another affidavit showed that soon after "Agent" arrived in town, Ron Baker bought a car and made a call to Ellensburg to a telephone listed in Ron Baker's name.

Although the State characterizes the information in one of the defense affidavits as hearsay, there is no indication anywhere in the record of a contemporaneous objection to that effect. Failure to raise such an objection before the trial court precludes the State from urging its objection for the first time on appeal. Bellevue Sch. Dist. 405 v. Lee, 70 Wash.2d 947, 425 P.2d 902 (1967). Considering the evidence and argument presented to the trial judge as a whole, we find that the record amply supports the trial court's logical deduction that "Agent" held himself out to Ms. Thetford and to others as Ron Baker.

The Roviaro Court noted that "[t]he scope of the privilege is limited by its underlying purpose. Thus ... once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable." Roviaro v. United States, supra 353 U.S. at 60, 77 S.Ct. at 627. "Agent's" identity is no longer a prosecution secret under Cr.R. 4.7(f)(2) and RCW 5.60.060(5). Whether "Ron Baker" is "Agent's" real name or an alias is irrelevant for these purposes. The pertinent consideration is whether respondent has correctly identified the individual she dealt with as the agent of the police referred to in their affidavit. The informer's privilege is no longer at issue because "Agent's" identity is no longer a secret. ¹

II

Under Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978),

where the 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...