State v. Salazar

Decision Date17 September 1990
Docket NumberNo. 23431-5-I,23431-5-I
PartiesSTATE of Washington, Respondent, v. Francisco SALAZAR, Appellant, Manuel Martinez Gonzalez, Cecelia Ruth LaRue, and each of them, Defendants.
CourtWashington Court of Appeals
Terrence Kellogg, Seattle, for appellant

Norm Maleng, Pros. Atty., and Peter R. Goldman, Jeffrey Ramsdell, Deputy Pros. Attys., Seattle, for respondent.

WEBSTER, Judge.

A jury convicted Francisco Salazar of one count of possessing cocaine with intent to manufacture or deliver. He appeals, challenging the particularity of an automobile description in a search warrant, the determination of probable cause to search the vehicle, the admission of testimony that the search was pursuant to a warrant, and the court's refusal to order disclosure of a confidential informant, including the limitation of cross examination as to whether a particular individual was the informant. We affirm.

PARTICULARITY OF DESCRIPTION IN SEARCH WARRANT

Detective Mario Navarrete of the Seattle Police Department obtained the search warrant at 9:40 p.m. on June 28 2607 NW 57th Str. in Seattle, King County, Washington, the west end of a pink duplex located on the southwest corner of 26th NW and NW 57th and a newer white General Motors car with a temporary license sticker in the rear window and the person[ ] of a Mex. Male 23, 5'6", 145# named Francisco aka Frank ....

                1988.   The warrant described the premises to be searched as
                

The affidavit recited that within the past 24 hours a reliable informant

was in contact with the Mexican Male known to the informant as Francisco aka Frank described above, in the vehicle described above at the residence described above. This informant observed cocaine ... in the possession of Francisco in the vehicle.

(Emphasis added).

At 11 p.m., Detective Navarrete and other officers of the Seattle Police Department executed the warrant. They planned to search the person, house, and vehicle at the same time. They observed a white 1984 Buick Regal matching the description in the warrant in front of the duplex just prior to the search and stopped it as it began to drive away. Salazar was driving, his girlfriend was in the front passenger seat, and a third individual was behind her. Navarrete found 10 individually wrapped 1-ounce baggies of cocaine under the driver's seat.

In a motion to suppress, Salazar argued that the vehicle description in the warrant was overbroad because it authorized a search of any "newer white General Motors car with a temporary license sticker in the rear window". The State responded as follows:

We are not talking about just any newer American-made car that happens to be white in Seattle.... It was evident by the use of the conjunctions and the fact that the affidavit specifies all those places together that Officer Navarrete was referring to a particular car associated with a particular place and a particular individual.

The defense just wants us to ignore the context of the affidavit and just look at the newer white American car, with nothing more.

The trial court agreed with the State. Applying a "common sense practical reading [of] the warrant", the court concluded:

Officer Navarrete, in executing the warrant, could ascertain and identify the particular vehicle to be searched. I find that based essentially on the wording of the warrant itself and the fact that the house and the vehicle and the persons are all set forth in the conjunctive. I think that any reasonable officer, in executing that warrant, for example, an officer leaving from downtown Seattle and heading toward Ballard, would not stop and search any newer General Motors white car with a temporary license sticker in the rear window.

I think a reasonable reading of that warrant would indicate to any officer executing it that it meant and intended that that vehicle was in some way connected with the residence to be searched. In fact, that's what the officers did in this case.

It's also, I think, corroborated by the affidavit and the knowledge of Officer Navarrete that the confidential informant had observed the described Mexican male in the vehicle at the residence within the past 24 hours, and that the confidential informant had observed cocaine in the possession of Francisco in the vehicle at that time.

We uphold the trial court, including its reliance on the affidavit and the personal knowledge of the officer executing the warrant. As this court stated in State v. Smith, 39 Wash.App. 642, 648-49, 694 P.2d 660 (1984):

The Fourth Amendment provides that no warrants shall issue except those "particularly describing the place to be searched". A perfect description is not required. It "is enough if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended." Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925).

(Footnote omitted). This general statement is further refined in 2 W. LaFave, Search and Seizure § 4.5(a), at 209-10 (2d ed. 1987):

In determining whether the description given the executing officer was sufficiently detailed, it is of course important initially to examine the description which appears in the warrant itself. However, if that description is inadequate, it is appropriate to look to the description appearing in the warrant application or affidavit if it is clear that the executing officers were in a position to be aided by these documents, as where (Footnotes omitted).

                they were attached to the warrant at the time of execution and incorporated therein by reference.  [The affidavit or application need not be attached to or incorporated into the warrant when the affiant is among the executing officers, however, because the affiant has personal knowledge of its contents and is therefore in a position to be aided by it.   See United States v. Gahagan, 865 F.2d 1490, 1497 (6th Cir.1989).]   Under some circumstances, an insufficiency in the warrant description may be cured by facts known by the executing officer other than by examination of the affidavit.   For example, it has been held that while ordinarily omission of the name of the city where the property is located is a fatal defect, this is not the case where the executing officer was also the affiant and the affidavit indicates that he had previously investigated personally the premises to which reference in the warrant was intended.  [See, e.g., State v. Smith, supra.]  But, this is not "to say generally that the personal knowledge of the officer executing the warrant, of the place intended to be searched, could cure a vitally deficient description, but merely, where as here, the error is at the worst innocent and technical, * * * such knowledge is an element to be considered."  [State v. Daniels, 46 N.J. 428, 217 A.2d 610, 615 (1966).]
                

In United States v. Vaughn, 830 F.2d 1185, 1186 (D.C.Cir.1987), a warrant described the vehicle to be searched as " 'a Blazer 4X4 2 door Black in color with tinted windows bearing Maryland tags.' " The court referred to the affidavit, which stated "that appellant ran a drug distribution network from the 13th Street Variety Store ..., that the Blazer was owned by appellant, and that the Blazer was used by appellant to deliver drugs." Vaughn, at 1186. The court concluded: "The affidavit fairly implies that the search was limited to a Blazer owned by appellant and located in the vicinity of the Variety Store. In fact, the Blazer was found within two hundred feet of the store very shortly after the issuance of the warrant." (Footnote omitted). Vaughn, at 1186.

Here, too, it was implicit from the affidavit, and from a common-sense reading of the warrant, that the search was limited to a vehicle matching the description in the warrant, located near the duplex described, and driven, owned, or controlled by "Francisco". Detective Navarrete was able We hold that the vehicle description was sufficient because there was an implied connection between the vehicle, the duplex, and the person identified as "Francisco". Although it would have been preferable to make this connection explicit, by describing the vehicle as "a newer white General Motors car with a temporary license sticker in the rear window located at or near the duplex, and driven owned, or controlled by Francisco," the omission of the emphasized language was not fatal to the warrant.

                to ascertain and identify the place intended.   As the affiant, he knew probable cause was based on a nexus between the duplex, vehicle, and "Francisco" described in the warrant.   There was no apparent threat he would stop any "newer white General Motors car with a temporary license sticker in the rear window".   In fact, he proceeded to the duplex shortly after the warrant was issued, and only then looked for the vehicle and person described
                

We further hold that even if the vehicle description could be considered in isolation and deemed facially defective, Detective Navarrete relied in good faith on the issuing judge's approval of the warrant description, making the "good faith" exception to the exclusionary rule applicable. See Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984), applying exception just announced in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In Sheppard, a detective conducting a murder investigation used a search warrant form for controlled substances because no other form was available. The detective crossed out "controlled substance" in the title of the form, but neglected to do the same in the warrant description, which on its face authorized a general search for controlled substances. The detective's affidavit of probable cause did not request a general search for controlled substances, and none were discovered in the search. The judge who signed the warrant told the detective he would make the necessary changes so as to...

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