State v. Garrison

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

Page 870

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.

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 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.

                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   The Court of Appeals reversed by an unpublished opinion.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 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.

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 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 be accompanied by an offer of proof. Also, "[a]llegations of negligence or innocent mistake are insufficient." Franks, 438 U.S. at 171, 98 S.Ct. at 2684; State v. Seagull, 95 Wash.2d 898, 908, 632 P.2d 44 (1981).

If these requirements are not met the inquiry ends. If these requirements are met, and the false representation or omitted material is relevant to establishment of probable cause, the affidavit must be examined. If relevant false representations are the basis of attack, they are set aside. If it is a matter of deliberate or reckless omission, those omitted matters are considered as part of the affidavit. If the affidavit with the matter deleted or inserted, as appropriate, remains sufficient to support a finding of probable cause, the suppression motion fails and no hearing is required. However, if the altered content is insufficient, defendant is entitled to an evidentiary hearing. Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684-85; State v. Cord, supra.

Defendant's motion to suppress is not part of the record. We have only the transcript of the five questions and answers and defendant's assertion that omission of this information was a reckless omission. The rest of the 45-minute interview is not in the record.

To prove reckless disregard of the truth, as is defendant's burden, defendant relies solely on State v. Jones, 55 Wash.App. 343, 777 P.2d 1053 (1989) which seems to hold that an inference of reckless disregard must be made from the omission of facts "clearly critical to a finding of probable cause". The Court of Appeals relied on State v. Jones, supra and dicta in United States v. Martin, 615 F.2d 318, 329 (5th Cir.1980).

Relying on such an inference to establish reckless disregard is not proper. The court in United States v. Colkley, 899 F.2d 297, 301 (4th Cir.1990) cogently recognized the error in such reliance: "[S]uch an inference collapses into a single inquiry the two elements--'intentionality' and 'materiality'--which Franks states are independently necessary."

Defendant failed to prove...