State v. Garrison, No. 58481-8

• Court: United States State Supreme Court of Washington
• Writing for the Court: PER CURIAM
• Citation: 827 P.2d 1388,118 Wn.2d 870
• Parties: STATE of Washington, Petitioner, v. Arletta GARRISON, Respondent.
• Decision Date: 23 April 1992
• Docket Number: No. 58481-8

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118 Wn.2d 870 827 P.2d 1388 STATE of Washington, Petitioner,
v.
Arletta GARRISON, Respondent. No. 58481-8. Supreme Court of Washington,
En Banc. April 23, 1992.

[827 P.2d 1389] C. Danny Clem, Pros. Atty., Pamela B. Loginsky, Deputy, Port Orchard, for petitioner.

J. Scott Bougher, Silverdale, for respondent.

PER CURIAM.

Defendant was charged with and convicted of 14 counts of theft arising from her accomplice

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liability in the purchase of merchandise with checks written by her live-in boyfriend on an account which had no funds and which had been closed for about 7 months. The Court of Appeals reversed by an unpublished opinion. State v. Garrison, noted at 61 Wash.App. 1050 (1991). We reverse the Court of Appeals and reinstate the judgment and sentence.

The sole issue is the validity of the search warrant. The specific challenge is to an omission from the affidavit in support of the warrant of one small part of information possessed by the affiant. The trial court denied defendant's motion to suppress the evidence seized, which was much of the merchandise purchased with the worthless checks.

The facts may be briefly stated. Over a period of a month, defendant, her mother, and the check-writing boyfriend, Nichols, obtained about $10,000 worth of merchandise by passing more than 100 checks. They obtained various personal items such as women's and children's clothing, children's toys, children's bicycles, household furnishings, rings, and liquor. Many of the items were Christmas gifts for defendant's children.

A Port Orchard police detective began investigation when the bad checks surfaced. He confirmed the status of the closed, no-funds account, obtained the various returned checks, and acquired descriptions of the merchandise, defendant, her mother, and the check-writing boyfriend, Nichols.

Nichols contacted the police and admitted to the criminal activity, implicating defendant and her mother. The detective's subsequent investigation confirmed Nichols' statements. A few days later Nichols voluntarily returned and gave a 45-minute taped interview with Detective Jensen, who prepared the warrant affidavit. Nichols no longer lived with defendant, her children, and her mother. Nichols had helped them move to a mobile home, the site of the search as authorized by the warrant. The subject merchandise had been moved to that location. After this interview Detective Jensen drove by the identified mobile home, and observed children and new children's bicycles there.

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Detective Jensen submitted a 37-page affidavit detailing each transaction with a specific description of the merchandise obtained. He listed 89 specific items of merchandise and their source. He expressed the belief that, because of the personal nature of much of the merchandise, e.g., women's and children's clothes, and the fact that much of it was Christmas gifts to the children, it would be located at the mobile home residence of defendant, her children, and her mother.

Defendant contends that Detective Jensen "recklessly omitted [from his affidavit] the informant's [Nichols] statement that the contraband had been moved from the residence to be searched to another, unknown location." Brief of Appellant, at 26. The only support for a claim of "reckless" omission is a transcript, prepared by defendant, of five questions and answers from the taped interview with Nichols. The transcription is set forth in appendix A.

Defendant's challenge falls far short of what is required. The seminal case is Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978). The Court held that where

defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable[827 P.2d 1390] cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

Franks, at 155-56, 98 S.Ct. at 2676.

The Franks test for material misrepresentations applies to allegations of material omissions. State v. Cord, 103 Wash.2d 361, 367, 693 P.2d 81 (1985).

The Franks opinion is clear that there must be allegations of deliberate falsehood [or deliberate omission] or of a reckless disregard of the truth. Allegations must...