State v. Fisher

• Decision Date: 28 January 1982
• Docket Number: No. 47839-2,47839-2
• Parties: The STATE of Washington, Petitioner, v. Paula FISHER and Thomas Lancaster, Respondents.
• Court: Washington Supreme Court

Page 962

96 Wn.2d 962

639 P.2d 743

The STATE of Washington, Petitioner, v. Paula FISHER and Thomas Lancaster, Respondents.

No. 47839-2.

Supreme Court of Washington, En Banc.

Jan. 28, 1982.

Donald F. Herron, Pierce County Prosecutor, Joseph D. Mladinov, Deputy Pros. Atty., Tacoma, for petitioner.

Douglas W. Tufts, Tacoma, for respondents.

DOLLIVER, Justice.

Paula Lynn Fisher and Thomas Joseph Lancaster were convicted of possession of a controlled substance after their residence was searched by Pierce County Sheriff's officers pursuant to a search warrant. Defendants appealed contending the affidavit given by the policeman in requesting the search warrant was defective and insufficient to establish probable cause. They also argue that the search warrant itself was defective as it contained an erroneous address and description of the building. The Court of Appeals reversed the conviction, holding the credibility of the informant was not established by the affidavit; it did not consider the other two issues raised. State v. Fisher, 28 Wash.App. 890, 626 P.2d 1020 (1981). We reverse the Court of Appeals, hold the affidavit and search warrant were adequate, and affirm the convictions.

On January 30, 1979, a Pierce County police officer presented an affidavit to the court in support of a complaint for a warrant to search for controlled substances at "3514 Madison" in Tacoma. The allegation of probable cause was based on the following:

That within the past 72 hours a reliable informant, known to the affiant, has visited the above residence and while there observed LSD and marijuana.

The informant is reliable in that he/she has given information regarding drug trafficing (sic.) and use in the past which has proven to be true and correct.

The informant has made two controlled buys to-wit: the informant was searched, given money, observed to enter and return from a residence with controlled substances purchased from within.

The informant stated that persons who live at and visit the residence are known to conceal drugs on their persons and in their vehicles. The informant further stated that the residents (sic.), Tom Lancaster, major sources of income were the sale of drugs and stolen property.

A search warrant was issued the same day and executed 2 days later.

Upon finding no one home at 3514 South Madison, the police entered and searched the residence. They seized two marijuana plants, suspected cocaine and other drugs, a .357 revolver, and other assorted items suspected of being stolen. The defendants returned home during the search. They were arrested and later charged with possession of a controlled substance (phenobarbital).

Twice the defendants moved unsuccessfully to suppress the seized evidence. Defense counsel then stipulated the facts and the trial court entered a finding of guilty.

The paucity of the record greatly hinders our review of the totality of the circumstances surrounding the request and issuance of the warrant. As a result we must accept the affidavit on its face and any doubts should be resolved in favor of the warrant. State v. Partin, 88 Wash.2d 899, 904, 567 P.2d 1136 (1977), citing United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

The law as set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), requires the State to satisfy a 2-prong test in order to obtain a search warrant. Under the second or "veracity" prong, sufficient facts must be presented so the magistrate may determine either the inherent credibility or reliability of the informant on the particular occasion. Affidavits for search warrants must be tested in a commonsense manner rather than hypertechnically as long as the basic Aguilar/Spinelli requirements are met. State v. Partin, supra. "The support for issuance of a search warrant is sufficient if, on reading the affidavits, an ordinary person would understand that a violation existed and was continuing at the time of the application." State v. Clay, 7 Wash.App. 631, 637, 501 P.2d 603 (1972), followed in State v. Partin, supra.

To meet the Aguilar/Spinelli test the credibility of the informant must be demonstrated. The mere statement that an informant is credible is not sufficient (Aguilar v. Texas, supra ), whereas it is almost universally held to be sufficient if information has been given which has led to arrests and convictions. 1 W. LaFave, Search and Seizure § 3.3, at 509 (1978); see also McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); State v. Partin, supra.

This case lies somewhere between these two positions. Affiant stated that the informant had given him information proven to be true and correct in the past. While this is more than drawing the conclusion that the informant is credible and admittedly less than stating the facts as to why the past information has proven to be "true and correct", it still is a factual statement not a conclusion of the affiant. We hold in this case that it is enough to enable a neutral magistrate to determine if the informant is credible.

There is substantial authority which holds general allegations such as those before us are sufficient. Gonzales v. State, 577 S.W.2d 226 (Tex.Crim.App.), cert. denied, 444 U.S. 853, 100 S.Ct. 109, 62 L.Ed.2d 71 (1979); State v. Caldwell, 25 N.C.App. 269, 212 S.E.2d 669 (1975); see also 1 W. LaFave, supra at 515 nn. 59-68. In Aguilar v. Texas, supra, the Supreme Court distinguished and approved of an affidavit which it upheld in Jones v. United States, 362 U.S. 257, 268, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). The Jones affidavit alleged that the informant " 'has given information to the undersigned on previous occasion and which was correct". This type of allegation informs the magistrate why the affiant believed the informant to be reliable. It states a fact and is more than a bare assertion or conclusion. Accord, United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

The Court of Appeals, however, felt that the statements in the affidavit were conclusory and thus insufficient to support the contentions of the informant's reliability. State v. Fisher, supra. We disagree. When the affidavit is viewed as a whole in a nontechnical manner it is nonconclusory and bears enough information to support the issuance of a valid warrant. When faced with reviewing the totality of the affidavit and, as in the present case, we lack an adequate record, we must ask what a reasonable person could conclude.

What did the affidavit disclose? The magistrate was told that within the past 72 hours (fact) a reliable informant (conclusion) known to the affiant (fact) visited the residence (fact) and observed LSD and marijuana (fact). The informant is reliable (establishing conclusion) because the informant had given information regarding drug trafficking (fact) and the informant had proven in the past to be true and correct (fact). The informant had made two controlled buys (fact) and information on how they were conducted was given (fact). The informant also stated persons who live at or visit the residence conceal drugs (informant's conclusion, not affiant's) and that resident Tom Lancaster's (fact) major sources of income were drug sales and stolen property (informant's conclusion again, not affiant's).

There are sufficient facts, not just numerically but substantially, for the magistrate reasonably to conclude that a violation existed and was continuing at the time of the affidavit. State v. Clay, supra. As we stated earlier, any doubt should be in favor of the warrant. State v. Partin, supra. Defendants do not provide us with a record sufficient to conclude otherwise.

The second issue on the validity and execution of the search warrant was not reached by the Court of Appeals: defendants' claim that the warrant was invalid because it failed to state the address of the house to be searched with sufficient certainty. The warrant stated the address as "3514 Madison Tacoma" when in fact it was South Madison. This is not fatal since " '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.' " State v. Rood, 18 Wash.App. 740, 743-44, 573 P.2d 1325 (1977), citing Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757, 760 (1925). There are three general sources of information that may be considered when a correct address is missing: (1) other physical descriptions of the premises contained in the warrant or affidavit (State v. Trasvina, 16 Wash.App. 519, 522, 557 P.2d 368 (1976)); (2) information concerning the location of the premises based upon the officer's personal knowledge of the location or its occupants (State v. Davis, 165 Wash. 652, 5 P.2d 1035 (1931)); and (3) the personal observations of the officer or officers at the time the warrant is executed. See State v. Rood, supra.

The key to this problem is there must be assurances that a mistaken search would not occur; the burden of proof lies with the moving party. State v. Trasvina, supra 16 Wash.App. at 523, 557 P.2d 368. This burden has not been met by the defendants. There is nothing in the record which would show adequate precautions were not taken except the allegation that there are four other Madisons in Pierce County. There is no showing there was a similar residence that could have been mistaken at the alternative addresses nor any attempt by defendants to show that the officers did not know the house in question or if the affiant was among the searching officers. In other words, the defendants made no showing that a mistaken search could have occurred. Defendants did send out an investigator to take a picture of the residence, but not the alternative addresses. The result is that we are given no record from which we can discern that the warrant...