State v. Cole

• Citation: 128 Wn.2d 262,906 P.2d 925
• Decision Date: 07 December 1995
• Docket Number: No. 62316-3,62316-3
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Respondent, v. Michael COLE, Appellant. STATE of Washington, Respondent, v. James SZYMANOWSKI, Petitioner.

Page 262

128 Wn.2d 262

906 P.2d 925

STATE of Washington, Respondent, v. Michael COLE, Appellant.

STATE of Washington, Respondent, v. James SZYMANOWSKI, Petitioner.

No. 62316-3.

Supreme Court of Washington,

En Banc.

Dec. 7, 1995.

Andrew L. Subin, Steinborn & Associates, Jeffrey Steinborn, Nicholas Holt, Seattle, for appellant

Norm Maleng, King County Prosecutor, Peter Stokstad, Deputy, Michele Hauptman, Deputy, Francis Zavatsky, Deputy, Barbara Mack, Deputy, Seattle, for respondent.

TALMADGE, Justice.

Petitioners Michael E. Cole and James Szymanowski were both convicted for drug-related offenses. Prior to their convictions, each was subjected to a civil forfeiture action that resulted in the forfeiture of certain personal property. Cole and Szymanowski now seek vacation of their convictions and sentences claiming their criminal convictions violated the double jeopardy clauses of the United States Constitution and of the Constitution of the State of Washington. U.S. CONST. amend. 5; WASH. CONST. art. I, § 9. Cole also seeks reversal of the trial court's denial of his motion to suppress, and dismissal of his case for lack of evidence.

We hold that the civil forfeiture of "proceeds," as defined by RCW 69.50, is not punishment and does not implicate double jeopardy. With respect to the search warrant in Cole's case, we affirm the trial court's denial of his motion to suppress. Cole's conviction is affirmed. Szymanowski's case is remanded to the trial court for a determination of whether proceeds were civilly forfeited in his case. ¹

ISSUES

1. Does jeopardy attach upon the civil forfeiture of the proceeds of illegal drug transactions within the meaning of RCW 69.50.505(a)(7)?

2. Were proceeds of illegal drug transactions forfeited in the present case?

3. Was evidence provided by a citizen informant who witnessed drug activity and by an officer who smelled

growing marijuana, and evidence of power consumption obtained from a utility pursuant to a search warrant, sufficient to establish probable cause that a crime was committed so that a search warrant should issue?

FACTS

State v. Cole ²

In early June 1992, the King County Police Drug Enforcement Unit received a telephone call from a citizen informant who believed a neighborhood residence in Issaquah, Washington, was being used to grow marijuana or for some other illegal activity. According to Detective Joseph Gaddy, who investigated the tip, the informant reported the house appeared unoccupied, but some young men came two or three times a week, staying for only a few minutes each time. The informant described the young men's appearances and one of their automobiles. The informant also stated he or she and other neighbors had smelled something unusual apparently coming from the house.

Gaddy drove to the house to investigate. The yard was overgrown, the house did not look lived in, and the basement windows were covered. Although it was daylight, the porch light and an interior light were left on. There was no response to Gaddy's knock on the front door. As he The next day, based on these observations, Gaddy filed an affidavit for a search warrant for electrical utility and telephone account information for the suspect residence. The affidavit summarized Gaddy's training and experience, the allegations made by the citizen informant, Gaddy's observations of the residence on June 9, 1992, and the basis for his suspicion that a marijuana grow operation existed in the house. (Clerk's Papers at 86-89.) The affidavit did not reveal the identity of the citizen informant, although the police knew who the informant was. (Clerk's Papers at 87.)

walked past the garage, Gaddy heard a humming sound he recognized as a ballast for fluorescent or metal halogen lights and fan motors operating inside the garage. Gaddy then stepped around the side of the garage to the electric meter for the house, located approximately two feet from the corner of the house nearest the driveway. The electric meter was spinning very rapidly, faster than Gaddy believed would be observed if the house were occupied. He also smelled the odor of growing marijuana. As Gaddy returned to his car, he noticed a new metal chimney erected some distance away from the older masonry chimney.

A search warrant for the power account information issued on June 12, 1992, from the King County District Court. (Clerk's Papers at 92-93.) ³ The power records obtained from Puget Sound Power and Light Company showed high power consumption, averaging 7,000 KWH per two-month billing period or about $400 worth of power, contrasted with an average of about 1,900 KWH per billing period, worth about $95, over the last six months of the prior tenants' occupancy in the residence.

On June 30, 1992, the King County District Court issued a search warrant for the suspect residence and two The Gaddy affidavit also contained additional information from the citizen informant identifying three automobiles used by the persons frequenting the house, and providing the license plate numbers for two of those vehicles. Gaddy stated he believed the informant to be very reliable because the informant had lived in the neighborhood for several years and worked in the community, had extended family in the community, had no criminal record, and came forward voluntarily and without requesting compensation. (Clerk's Papers at 75.)

automobiles seen frequently at the residence. The warrant was based upon an expanded affidavit by Gaddy, which contained a summary of the information obtained from the power consumption records, and added the results of further investigation into the allegations in his previous affidavit. The affidavit described a visit to the residence on June 10, 1992, by Officer J.R. Hall, during which Hall reported smelling growing marijuana while standing in a neighbor's yard approximately ten feet from the suspect house. The affidavit described Hall as a member of a proactive unit addressing street level narcotics trafficking, who, in more than two years as a police officer, had been involved with numerous marijuana grow operations and was familiar with the smell of growing marijuana. (Clerk's Papers at 66, 76.)

The affidavit identified the registered owner of one vehicle as Fred Hatcher, who had been arrested twice and convicted once for violation of the Uniform Controlled Substances Act, ⁴ and whose auto repair business appeared to be a front for cocaine distribution. The affidavit included additional information recorded during surveillance of the residence, including visits of various individuals. Gaddy's On June 30, 1992, officers with the King County Drug Enforcement Unit executed the warrant to search the suspect house. They discovered Cole at the house and arrested him. During the search, the officers discovered evidence of a marijuana grow operation, including marijuana plants and grow equipment.

                investigation revealed a connection between Hatcher and Cole.  (Report of Proceedings I at 38;  Clerk's Papers at 79.)   The affidavit also reported Cole had two prior convictions for violation of the Uniform Controlled Substances Act and described Cole's resistance during a prior arrest
                

On July 1, 1992, as authorized by RCW 69.50.505, police officers seized a 1988 Chevrolet truck, one 1990 Kawasaki jet ski, one Yamaha jet ski, and a cellular telephone, and notified Cole of their intention to seize a 1976 Sanger ski boat and homemade boat trailer, all in Cole's apparent possession, based on probable cause to believe this property had been acquired with proceeds traceable to violations of RCW 69.50. (Clerk's Papers at 48.) On January 27, 1993, the court entered an agreed order forfeiting Cole's interest in the truck, jet skis, and cellular telephone, and directing the return of the ski boat and trailer to him. (Clerk's Papers at 50.)

On December 30, 1992, Cole was charged with one count of violating the Uniform Controlled Substances Act: possession of marijuana with intent to deliver. Cole moved to suppress evidence from the search of the residence, based on lack of probable cause. He argued the power records were obtained in violation of RCW 42.17.314. He also asserted there was no showing the informant was knowledgeable and reliable. Finally, he contended Gaddy's search of the area beyond the corner of the house was a warrantless search of the curtilage of the property. The trial court rejected the first two contentions, but accepted Cole's argument that Gaddy was in a constitutionally protected area of the curtilage of the house when he observed the electrical meter and smelled growing marijuana. After redacting this evidence, the trial court On May 21, 1993, Cole was convicted as charged upon stipulated facts. (Clerk's Papers at 8-23, 52.) He then moved to vacate his conviction and dismiss the charge on double jeopardy grounds. The trial court denied the motion and this appeal followed.

nevertheless found sufficient probable cause to support the search warrant. (Clerk's Papers at 69-72.)

State v. Szymanowski

On November 24, 1992, Szymanowski was arrested on a traffic violation. A subsequent search located a small amount of cocaine on his person. Not content with one problem, Szymanowski was arrested again on January 4, 1993, after attempting to elude a Washington State Patrol trooper. After the arrest and a search of his vehicle, troopers seized his 1978 Firebird and its contents, which included a container of cocaine, two guns, a radar detector, a pager, a scanner, two butane torches, some glass pipes, two glass bongs for smoking marijuana, and $290 in cash. (Clerk's Papers at 10-12, 63-64, 112-14, 124.) The arresting trooper found on Szymanowski's person over $2,000 in cash, a safe deposit box key, and a business card from Mini-Max Storage, located at 2656 15th Avenue West in Seattle (on the business card were written two locker numbers: N-23 and W-22). (Clerk's Papers at 9, 112-13, 122.) The safe deposit...