State v. O'Connor

• Decision Date: 10 December 1984
• Docket Number: No. 13814-6-I,13814-6-I
• Citation: 39 Wn.App. 113,692 P.2d 208
• Parties: STATE of Washington, Appellant, v. Kenneth James O'CONNOR and Eric John Shostad, Respondents.
• Court: Washington Court of Appeals

Page 113

39 Wn.App. 113

692 P.2d 208

STATE of Washington, Appellant, v. Kenneth James O'CONNOR and Eric John Shostad, Respondents.

No. 13814-6-I.

Court of Appeals of Washington Division 1.

Dec. 10, 1984.

Review Denied March 1, 1985.

Seth R. Dawson, Snohomish County Pros. Atty., S. Aaron Fine, Deputy Pros. Atty., Everett, for appellant.

Washington Appellate Defender, Zsa Zsa Depaolo, Seattle (Court-appointed), for Keith O'Connor.

Tom Conom, Lynnwood, for Eric Shostad.

COLEMAN, Judge.

The State appeals from an order of the trial court suppressing evidence seized pursuant to a search warrant, and from the court's subsequent order dismissing possession of stolen property charges filed against respondents O'Connor and Shostad.

On January 31, 1983, Wade Walthew, acting at the direction of the Mountlake Terrace Police Department, made a controlled purchase of an allegedly stolen cassette player from William Lance. Immediately thereafter, Mountlake Terrace Police Detective Maurice Noll arrested Lance. Prior to that date, Detective Noll had had no contact with William Lance, and William Lance had provided no information to Detective Noll. When asked where he had acquired the cassette player, Lance initially said that he had stolen it out of a car. Detective Noll told Lance that he did not believe him. After being confronted with his false statement, Lance stated that he had been receiving stolen property from respondent O'Connor at O'Connor's residence. He also said that he had been selling stolen property for O'Connor for over a year, and that O'Connor always had stolen property at his apartment. In addition, Lance said that O'Connor had told him that several items in his apartment were stolen in residential burglaries.

Prior to executing an affidavit for search warrant, Detective Noll attempted to verify that the cassette player purchased from Lance was stolen. A computer check proved negative. He then contacted Detective Knight of the Lynnwood Police Department, who advised him that the cassette player matched the description of one that had been stolen in a burglary, but Knight was not able to definitely say whether it was the same one. In Detective Noll's affidavit for issuance of the search warrant, he asserted that the cassette player was stolen. There was no reference in the affidavit to Lance's initial statement that he had obtained the cassette recorder from an automobile.

On the basis of Detective Noll's affidavit, a district court judge issued a search warrant and Kenneth O'Connor's residence was searched. Eric Shostad was in O'Connor's house at the time of the search. The search uncovered several items of stolen property, and O'Connor and Shostad were subsequently charged with possession of stolen property.

Prior to trial, respondents moved to suppress the evidence seized pursuant to the search warrant. The trial court concluded that Detective Noll's affidavit did not contain sufficient evidence of Lance's veracity, and based upon that conclusion, an order was entered suppressing the evidence for lack of probable cause to issue the search warrant. The State asserted that it could not proceed with the case in view of the court's suppression ruling, and a dismissal with prejudice was thereafter entered.

The State assigns error to the trial court's consideration of matters not contained within the affidavit for search warrant, and to the trial court's conclusion that the affidavit did not contain sufficient information to justify a finding of probable cause. Error is assigned to the subsequent suppression order and the dismissal of the charges resulting therefrom. Respondent Shostad cross appeals assigning error to the trial court's conclusion that any misrepresentation concerning the allegedly stolen cassette player was not a material misrepresentation, and to the trial court's conclusion that any misrepresentations in the affidavit for search warrant were not made deliberately or recklessly. The following issues are presented for our resolution:

1. Was Detective Noll's statement that the stereo cassette player was "stolen" an intentional or reckless misstatement of a material fact?

2. Was Detective Noll's failure to include Lance's initial untruthful statement in the search warrant affidavit an intentional or reckless omission of a material fact?

3. May the trial court, following a finding that the search warrant affidavit did not contain reckless or intentional misstatements of any material fact, consider matters not contained in the affidavit in determining whether the affidavit supported a finding of probable cause?

4. Was Lance's statement against penal interest sufficient under the facts of this case to establish his veracity?

Washington courts have consistently held that misstatements or omissions in affidavits supporting search warrants may only affect a warrant's validity if they are (1) material, and (2) made deliberately or recklessly. State v. Seagull, 95 Wash.2d 898, 907-08, 632 P.2d 44 (1981); State v. Moore, 29 Wash.App. 354, 361-62, 628 P.2d 522 (1981), rev. denied, 96 Wash.2d 1003 (1981). In State v. Sweet, 23 Wash.App. 97, 100-01, 596 P.2d 1080 (1979), rev. denied, 92 Wash.2d 1026 (1979), we adopted the federal rule announced in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), governing the right to challenge the truthfulness of factual statements contained within search warrant affidavits. The Franks court stated:

There is ... a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient.

Franks, at 171, 98 S.Ct. at 2684. Franks and the relevant Washington decisions do not illuminate what constitutes "reckless" disregard for the truth. The parties to this appeal cite United States v. Davis, 617 F.2d 677 (D.C.Cir.1979), cert. denied, 445 U.S. 967, 100 S.Ct. 1658, 64 L.Ed.2d 243 (1980) for the proposition that recklessness is shown where the affiant "in fact entertained serious doubts as to the truth" of facts or statements in the affidavit. Davis, at 694 (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)). Under Davis, such serious doubts can be shown by (1) actual deliberation on the part of the affiant, or (2) the existence of obvious reasons to doubt the veracity of the informant or the accuracy of his reports.

Applying this test to the case at bar, it is clear that no actual deliberation was shown and that the affiant, Detective Noll, did not have obvious reasons to doubt whether the cassette player was stolen. The circumstances under which Lance acquired the cassette player and his immediate acknowledgement that he had in fact stolen it provided a reasonable basis to believe and to subsequently allege that the cassette player was in fact stolen property. Furthermore, the admissions were not undermined by the fact that the police investigation did not definitely identify the cassette player as stolen. An inconclusive investigation does not give an affiant obvious reasons to doubt the truth of his statement and the hearsay upon which the statement is based.

Essentially the same analysis applies to information intentionally or recklessly omitted from affidavits. United States v. Martin, 615 F.2d 318 (5th Cir.1980). Negligent omissions will not undermine the affidavit. United States v. Martin, supra at 329; see State v. Moore, supra, 29 Wash.App. at 361-62, 628 P.2d 522. In this regard, the State offers three compelling reasons for finding the omission of Lance's initial untruthful statement immaterial and/or merely negligent. First, even if his statement had been included in the affidavit, it could have been deemed immaterial because it is not uncommon for an arrestee to initially minimize his or her own involvement in a crime or series of crimes. People v. Barger, 40 Cal.App.3d 662, 115 Cal.Rptr. 298 (1974). Moreover, it would not be unusual for an individual to initially attempt to avoid implicating others in criminal activity. Second, the statement could have been discounted or ignored in light of the other indicia of reliability. Third, under United States v. Melvin, 596 F.2d 492, 499-500 (1st Cir.1979), if Detective Noll genuinely believed that the omitted statement was irrelevant, even if that belief was mistaken, the omission was not reckless or deliberate.

The first two points above support a conclusion that Lance's initial statement was not "clearly critical" or material to the probable cause determination. The third point supports a finding that Detective Noll's omission, though arguably negligent, was not reckless.

Moreover, following consideration of the offer of proof, which included sworn testimony of Detective Noll, the trial court specifically found that Noll was at all times acting in good faith and that there were no material misstatements in the affidavit. It is also clear from the trial court's comments that it did not find any reckless omissions. It was error, however, for the trial court to consider matters not contained within the affidavit for search warrant in arriving at its determination on probable cause. Accordingly, in testing the search warrant affidavit on review, we confine our considerations to the information contained in the affidavit.

We begin our analysis by noting that...