State v. Hall
| Citation | 53 Wn.App. 296,766 P.2d 512 |
| Decision Date | 19 January 1989 |
| Docket Number | No. 8882-1-III,8882-1-III |
| Court | Court of Appeals of Washington |
| Parties | STATE of Washington, Respondent, v. Stephen Duane HALL, Starley Lloyd Mason, David Robert Finch, Defendants, Douglas Rolland Hall, Appellant. |
Richard L. Cease, Public Defender, and Gregory Sypolt, Asst. Public Defender, Spokane, for appellant.
Donald C. Brockett, Pros. Atty., and Virginia Rockwood, Deputy Pros. Atty. Spokane, for respondent.
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Douglas R. Hall was convicted by the court of possession of a controlled substance with intent to manufacture and possession of LSD. RCW 69.50.401(a). He was given concurrent sentences of 8 months on the first charge and 90 days on the second. He appeals, contending the court erred in denying his motion to suppress evidence. We affirm.
On April 23, 1986, during surveillance of a marijuana grow operation in a vacated room of the Kaiser Trentwood Aluminum plant in Spokane County, three Kaiser employees, Starley L. Mason, David R. Finch and Stephen D. Hall, were arrested. At approximately 8:30 p.m. Mr. Mason implicated Douglas Hall (brother of Stephen D. Hall) as the supplier of the plants. At 9:45 p.m., sheriff's deputies, accompanied by Mr. Mason, drove to the Hall residence at Vinegar Flats in Spokane. While waiting for Mr. Hall to respond to their knock at the door, a deputy observed, through a dining room window, a bong style marijuana pipe in plain view on a table within the home. When Mr. Hall opened the door, he was advised the deputies had probable cause to obtain a search warrant and they requested consent to search the premises. He was also advised if consent was refused, the deputies would have to secure the premises to avoid the destruction of evidence. Mr. Hall refused consent; the officers did not arrest Mr. Hall but sat with him until 11:15 p.m. when Mr. Hall left. At that time, the deputies secured the house from the outside until the arrival of the search warrant at 12:12 a.m. At no time did they conduct a search.
The affidavit in support of the warrant contained a reference to the bong pipe. Upon execution of the warrant, the deputies found 612 marijuana plants in various stages of growth along with grow equipment, 10 baggies of dried marijuana, an O'Haus triple beam scale and LSD tablets.
Mr. Hall first contends the court erred in failing to suppress the evidence because the affidavit did not meet the requirements of Aguilar 1-Spinelli. 2 State v. Jackson, 102 Wash.2d 432, 688 P.2d 136 (1984). He contends Mr. Mason did not have a sufficient track record of providing information to establish credibility.
In State v. Bean, 89 Wash.2d 467, 572 P.2d 1102 (1978) the police arrested suspect Bean on the strength of statements made by Mr. Hawn who had previously been arrested for a drug offense. The court stated, at page 471, 572 P.2d 1102:
Because of the strong motive that Hawn had to be accurate in the information he provided the officers, we believe Hawn qualifies as a reliable informant upon whom the police were justified in placing reliance. In addition, since verification of previously furnished details concerning Bean had established their accuracy, the police were justified in stopping the van and arresting Bean when he appeared on schedule.
See also State v. Smith, 39 Wash.App. 642, 647, 694 P.2d 660 (1984), review denied, 103 Wash.2d 1034 (1985) (); State v. O'Connor, 39 Wash.App. 113, 119, 692 P.2d 208 (1984), review denied, 103 Wash.2d 1022 (1985) ().
Here, Mr. Mason was under arrest at the time he named a specific person at a specific address. He accompanied the officers to identify the residence. His information was corroborated during a separate interview by another codefendant, Mr. Stephen Hall. Mr. Mason also admitted purchasing marijuana plants from Doug Hall, an admission against his penal interest. Finally, the allegations of the informants were corroborated by the presence of the bong pipe. State v. Jackson, supra 102 Wash.2d at 445, 688 P.2d 136.
Mr. Hall next contends the information provided by Mr. Mason was stale--it had been 2 months since Mr. Mason had been present in the house to make a purchase citing State v. Hett, supra. The test for staleness of the information in an affidavit is common sense. State v. Petty, 48 Wash.App. 615, 621, 740 P.2d 879, review denied, 109 Wash.2d 1012 (1987); State v. Hashman, 46 Wash.App. 211, 217, 729 P.2d 651 (1986), review denied, 108 Wash.2d 1021 (1987); Hett, 31 Wash.App. at 852, 644 P.2d 1187 (citing State v. Worland, 20 Wash.App. 559, 582 P.2d 539 (1978)). The tabulation of the number of days is not the deciding factor; rather, it is only one circumstance to be considered with all the others, including the nature and scope of the suspected activity. Hett, 31 Wash.App. at 852, 644 P.2d 1187 (citing State v. Higby, 26 Wash.App. 457, 460, 613 P.2d 1192 (1980)). Here, it was reasonable to believe the established grow operation was still in existence because of the number of plants found at Kaiser and Mr. Mason's comment regarding the size of the plants remaining at the house.
Mr. Hall also argues the observation of the pipe was not within the plain view exception to the warrant requirement because the house was located in an isolated area some distance from a public roadway and its furnishings obscured the vision of an officer peering through the window.
The plain view doctrine, announced in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), requires the police officer to have a prior justification for an intrusion in the course of which he inadvertently discovers incriminating evidence. While there is no indication in the record as to the location of the dining room window, it was reasonable for the police to provide backup protection for those officers at the front door. Additionally, the trial court specifically found the police were able to observe the pipe through the window; no error has been assigned to this finding, thus, it is a verity on appeal.
The most troubling issue before this court is the question of the warrantless entry to secure the home because of exigent circumstances involving the destruction of evidence. The State argues and the trial court found the possibility of a phone call being made by Mr. Hall's brother from the jail after his arrest was sufficient to justify the warrantless entry.
In Bean, a house was entered and secured prior to obtaining a search warrant. After entry, the officers observed marijuana and pipes for smoking it in plain view in the living room. After the warrant was obtained, the officers seized other drugs found throughout the house. In suppressing the evidence, the court noted, at 89 Wash.2d page 472, 572 P.2d 1102:
Subject only to a few exceptions, a search without a warrant is per se unreasonable under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 357, 19 L.Ed.2d 576, 88 S.Ct. 507 (1967). (Footnotes omitted.) Coolidge v. New Hampshire, 403 U.S. 443, 455, 29 L.Ed.2d 564, 91 S.Ct. 2022 [2032] (1971). Here the State contends exigent circumstances existed.
The totality of circumstances said to justify a warrantless securing or search of a house under the doctrine of exigent circumstances will be closely scrutinized. This, we feel, is the correct rule in view of the practicable alternative available in the form of the telephonic warrant. CrR 2.3(c).
(Footnote omitted.) See also Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290, 300 (1978). " 'An objective standard governs the reasonableness of law enforcement officials' belief that exigent circumstances have arisen.' " United States v. Patino, 830 F.2d 1413, 1415 (7th Cir.1987) (). When exigent circumstances are advanced, it is appropriate to review the officers' conduct during the entire period from the moment they had a right to obtain a warrant and not merely from when they knocked on the door. United States v. Rosselli, 506 F.2d 627, 630 (7th Cir.1974). While recognizing this is federal authority construing the fourth amendment of the United States Constitution, our court has noted article 1, section 7 of the Washington State Constitution provides heightened protection. State v. Chrisman, 100 Wash.2d 814, 818, 676 P.2d 419 (1984).
Federal courts have enumerated general factors which should be considered to determine whether exigent circumstances are present:
(1) the degree of urgency involved and the amount of time necessary to obtain a warrant, compare United States v. Pino, 431 F.2d 1043, 1045 (2d Cir.1970), with Niro v. United States, 388 F.2d 535 (1st Cir.1968); (2) reasonable belief that the contraband is about to be removed, United States v. Davis, 461 F.2d 1026, 1029-1030 (3d Cir.1972); Hailes v. United States, 267 A.2d 363 (D.C.C.A.1970); (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought, United States v. Pino, 431 F.2d at 1045; (4) information indicating the possessors of the contraband are aware that the police are on...
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