State v. Clay

• Decision Date: 02 October 1972
• Docket Number: No. 1255--I,1255--I
• Citation: 7 Wn.App. 631,501 P.2d 603
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Gary CLAY, Appellant.

Page 631

7 Wn.App. 631

501 P.2d 603

STATE of Washington, Respondent, v. Gary CLAY, Appellant.

No. 1255--I.

Court of Appeals of Washington, Division 1, Panel One.

Oct. 2, 1972.

Petition for Rehearing Denied Jan. 26, 1973.

Petition for Review Denied March 6, 1973.

James R. Short, Federal Way, for appellant.

Earl F. Angevine, Skagit County Pros. Atty., Gilbert E. Mullen, Deputy Pros. Atty., Mount Vernon, for respondent.

CALLOW, Judge.

The defendant was tried and convicted of possession of a narcotic drug, count I, under RCW 69.33.410, and possession of a dangerous drug, count II, under RCW 69.40.061.

On December 30, 1970, officers of the Skagit County Sheriff's Department arrived at a residence at 7:30 a.m. to execute an arrest warrant for a person by the name of Latimer and a search warrant for the premises. When the officers arrived, the house was dark, and the shades were drawn. They were unaware that any one was home. An officer knocked, announced his identity and purpose and entered the residence when he did not hear a response. Inside the house, they found the defendant and others asleep. A deputy sheriff testified that he awakened defendant and allowed him to put some clothes on. The defendant picked up a pair of pants, and the deputy searched them finding a packet of white powder and a wallet. The deputy testified he knew there was a wallet in the pants when he checked them, and he was watching the defendant closely and did not think the defendant could have put the wallet in the pants before he put them on. The bedroom was searched and other items found. A witness testified the defendant had said that he rented the house. A real estate salesman stated he had been contacted by the defendant and Latimer on November 27, 1970, regarding the residence, that he showed the place to them, that most of the conversation was with Clay, that they agreed to rent it, that no rental agreement was signed, and that the receipt was made out in Latimer's name. The salesman further testified he understood he was renting the house to Clay who planned on working nearby and going to school part time.

The defendant Clay assigns as error the denial of the motion to suppress, the denial of the challenge to the sufficiency of the evidence, the denial of the motion for mistrial, the denial of challenges for cause to two jurors, and the jury instruction relating to and defining actual and constructive possession. The defendant claims also that the equal protection clause of the fourteenth amendment to the United States Constitution was violated by his being sentenced to the Department of Institutions.

Defendant claims that the fourth amendment of the Constitution of the United States regarding unreasonable searches and seizures has been violated. His position is that the affidavits in support of the warrant do not reflect that a violation of law was occurring at the time of the issuance of the warrant. The converse of this argument is that probable cause may not be based on stale information.

The dual requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), are reaffirmed with approval in Spinelli v. United States, 393 U.S. 410, 412, 89 S.Ct. 584, 587, 21 L.Ed.2d 637 (1969), wherein it was said:

In Aguilar, a search warrant had issued upon an affidavit of police officers who swore only that they had 'received reliable information from a credible person and do believe' that narcotics were being illegally stored on the described premises. While recognizing that the constitutional requirement of probable cause can be satisfied by hearsay information, this Court held the affidavit inadequate for two reasons. First, the application failed to set forth any of the 'underlying circumstances' necessary to enable the magistrate independently to judge of the validity of the informant's conclusion that the narcotics were where he said they were. Second, the affiant-officers did not attempt to support their claim that their informant was "credible' or his information 'reliable."

Spinelli further recapped the standards for the testing of affidavits in support of a search warrant as follows at 419, 89 S.Ct. at 590:

The affidavit, then, falls short of the standards set forth in Aguilar, Draper (Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959)), and our other decisions that give content to the notion of probable cause. In holding as we have done, we do not retreat from the established propositions that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964); that affidavits of probable cause are tested by must less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois, 386 U.S. 300, 311, 87 S.Ct. 1056, 1062, 18 L.Ed.2d 62 (1967); that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965); and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, 362 U.S. 257, 270--271, 80 S.Ct. 725, 735--736, 4 L.Ed.2d 697 (1960). But we cannot sustain this warrant without diluting important safeguards that assure that the judgment of a distinterested judicial officer will interpose itself between the police and the citizenry.

(Footnotes omitted.)

United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), quoted with approval United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), as follows:

'(T)he Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.

Again in Coolidge v. New Hampshire, 403 U.S. 443, 449, 91 S.Ct. 2022, 2029, 29 L.Ed.2d 564 (1971), we find the United States Supreme Court reaching back with approval to a prior case setting standards in this area as follows:

The classic statement of the policy underlying the warrant requirement of the Fourth Amendment is that of Mr. Justice Jackson, writing for the Court in Johnson v. United States, 333 U.S. 10, 13--14, 68 S.Ct. 367, 369, 92 L.Ed. 436:

'The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.'

Thus, it is apparent that the exercise of the magistrate of his detached independent judgment must be pursuant to the guidelines of probable cause and that the magistrate must have the courage to refuse the issuance of a warrant if the guidelines are not met.

The Washington court has held that a signed affidavit for a search warrant is not required but may be given on affirmation. State v. Malbeck, 69 Wash.2d 695, at 697, 419 P.2d 805, at 807 (1966), said:

A signed affidavit for a search warrant is not required. The fourth amendment to the United States Constitution requires only that warrants issue upon probable cause supported by oath or affirmation. RCW 10.79.010 requires only that the application for a search warrant be under oath and that the justice find reasonable cause for the officer's belief.

The requirements of Aguilar v. Texas, Supra, are the requirements reiterated in State v. Walcott, 72 Wash.2d 959, 435 P.2d 994 (1967), requiring (1) full disclosure to the magistrate of the underlying circumstances justifying issuance of the warrant and (2) justification of the credibility of the informant or the reliability of his information. Such also has been the recognition of State v. Harrison, 5 Wash.App. 454, 488 P.2d 532 (1971), wherein it was said at 458, 488 P.2d at 535:

To rise to the level of probable cause, the courts consider only probabilities, and a prima facie showing of criminal activity is not required. Affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial and in judging probable cause, issuing magistrates are not to be confined by restrictions on the use of good common sense. Their determination of probable cause should be paid 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 had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 288, 69 L.Ed. 543 (192...