State v. Barnes
| Decision Date | 12 June 1969 |
| Docket Number | No. 40145,40145 |
| Citation | 456 P.2d 337,76 Wn.2d 234 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Elbert Neal BARNES, Jr., Appellant. |
Barokas, Beitz, Berner & Schaeffer, Larry L. Barokas, Seattle, for appellant.
Charles O. Carroll, Pros. Atty., Edmund P. Allen, Deputy Pros. Atty., Seattle, for respondent.
Defendant appeals from a judgment of the court finding him guilty of violating the Uniform Narcotic Drug Act (RCW 69.33) and from the sentence which ordered him committed to the State Department of Institutions for a maximum term of not more than 20 years.
June 28, 1967, John R. Parish, an agent of the Federal Bureau of Narcotics, executed an affidavit for purposes of obtaining a warrant to search certain premises in Seattle, described as being the residence of defendant. That affidavit was as follows:
JOHN R. PARISH, being frist (sic) duly sworn on oath, deposes and says: That he is a Federal Narcotics Agent and is currently investigating narcotics traffic in the King County area; that in the course of his investigations he has had 2437 - S. Irving under surveillance and has seen several persons known to your affiant to be involved in the use and sale of narcotics in the Seattle area entering and leaving apartment #1 at this address; these persons mentioned include Dave Slack, Donna Webb, and Bob Thompson; that this surveillance was conducted last at 2:00 a.m. this morning; that last week your affiant saw a car with several people (three men and a women) (sic) park in front of the house; one man went into apartment one while others waited outside; this same person came out about five minutes later with what appeared to be a green balloon in his hand (not inflated); that your affiant has, in his experience in the field of narcotics, learned that this is a common way to carry and sell heroin; this observation was made through binoculars;
That your affiant has received information from an informant who advised your affiant that (sic) he had been buying heroin from Barnes for months and that he was currently living at the above address; this same informant advised that he has never known Barnes to be without heroin;
That your affiant has known of Barnes for about 6 months; at that time he was living at 535--19th Ave., Seattle, Wash.; at that time your affiant received information from informants that he was dealing with heroin from that apartment;
Today your affiant received information from a very reliable informant who stated that he was present last Sunday when Barnes sold 40 caps of heroin to a now Crawford Clark who is also a known narcotics addict and seller; this sale did not, however, take place in Barnes' apartment;
That Barnes is known to your affiant to have been convicted in the past for a narcotics offense in California:
That based upon the above information received from various sources and based upon your affiant's observation of Barnes' apartment during the past week it is your affiant's belief that narcotics are being secreted, dispensed and sold at the above address.
The warrant issued, and at about 1:30 a.m. the next morning several officers of the law used it as authority to search apartment No. 1 at the South Irving address. Entry into the apartment unit was by forcible means when no one answered the officer's knock on the door. A search was made and contraband consisting of several prophylactics containing heroin with opium derivatives was found. The defendant was then arrested in apartment No. 5 on a different floor of the building but narcotics were not found in that unit or on his person.
Defendant's first assignment of error attacks the legality of the search warrant. He argues that the issuing magistrate did not have sufficient probable cause to legally justify the issuance of the warrant since the affidavit of John R. Parish was constitutionally inadequate. As authority for his proposition he cites Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
In Aguilar, a search warrant had issued upon the affidavit of law officers who swore only that they had 'received reliable information from a credible person and (did) believe' that narcotics were being illegally kept on the premises. Our highest court held that the affidavit was inadequate for two reasons: (1) No 'underlying circumstances' were set forth in the affidavit that would allow the magistrate to make an independent judgment of the validity of the informant's conclusion that narcotics were on the premises; and (2) the affiant did not factually attempt to support the claim that the informant was 'credible' or his information 'reliable.' The evidence obtained by way of the Aguilar search...
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State v. Clay
...great deference by reviewing courts. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. Barnes, 76 Wash.2d 234, 456 P.2d 337 (1969). Probable cause exists where 'the facts and circumstances within their (the arresting officers) knowledge and of which they......
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State v. Patterson
... ... 367, 369, 92 L.Ed. 436 (1948) ... Thus, no magistrate may accept without question the complainant's mere conclusion, but rather must abide by the two requirements announced in Aguilar, which together provide the minimum standards for finding probable cause. State v. Barnes, 76 Wash.2d 234, 236, 456 P.2d 337 (1969). First, where the affidavit relies on an informant, the magistrate 'must be informed of some of the underlying circumstances from which the informant concluded' as he or she did, and second, 'some of the underlying circumstances from which the officer ... ...
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State v. Fisher
...could have relied upon independent police sources rather than upon "reliable and credable" (sic ) informants); State v. Barnes, 76 Wash.2d 234, 235-37, 456 P.2d 337 (1969) (warrant did not issue primarily on basis of information provided by "very reliable informant"); State v. Malbeck, 69 W......
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State v. Trasvina
...those premises. We hold that this constitutes substantial evidence of constructive possession of the substances. See State v. Barnes, 76 Wash.2d 234, 456 P.2d 337 (1969); State v. Walcott, 72 Wash.2d 959, 435 P.2d 994 The judgment is affirmed. WILLIAMS, C.J., and CALLOW, J., concur. ...