State v. Harris

• Decision Date: 06 January 1975
• Docket Number: No. 2563--I,2563--I
• Citation: 530 P.2d 646,12 Wn.App. 481
• Parties: STATE of Washington, Respondent, v. Dewitt Alvin HARRIS, Appellant.
• Court: Washington Court of Appeals

Page 481

12 Wn.App. 481

530 P.2d 646

STATE of Washington, Respondent, v. Dewitt Alvin HARRIS, Appellant.

No. 2563--I.

Court of Appeals of Washington, Division 1.

Jan. 6, 1975.

Demco & Erickson, John W. Demco, Seattle, for appellant.

Christopher T. Bayley, King County Pros. Atty., Edward L. Douglas, Jr., Deputy Pros. Atty., Seattle, for respondent.

SWANSON, Chief Judge.

Dewitt Alvin Harris appeal from the judgment and sentence entered following a jury verdict convicting him of possession of heroin in violation of the Uniform Controlled Substances Act, RCW 69.50.

The primary issue presented is whether the known propensity of an accused to destroy evidence silently by swallowing it may constitute an 'exigent and necessitous circumstance' such that a police officer bearing a lawful search warrant may enter the premises to be searched after knocking and announcing his office, but without either announcement of his purpose or refusal of admittance. Appellant mounts a two-pronged attack upon the denial of his motion to suppress the evidence obtained in the search. He claims first, that the affidavit offered to support the issuance of the search warrant is insufficient and, second, that the execution of the warrant itself was illegal.

The search warrant was issued by the Seattle District Court on February 10, 1972, on the basis of a complaint and supporting affidavit by Seattle Police Sergeant Robert Beveridge. In lieu of a detailed summarization of these documents, we have set them forth in an appendix to this opinion. Essentially, the affidavit recites circumstances under which three reliable informants advised Sergeant Beveridge or other police officers of alleged activities of the appellant involving the possession and sale of heroin, and includes affiant Beveridge's statement that on the basis of such information, he believed that heroin was located in In challenging the sufficiency of the affidavit, appellant points out that much of the information contained in it does not come from the affiant's personal knowledge but rather is information supplied by an informant. Appellant basically contends that the affidavit fails to set forth the underlying facts and circumstances which would permit a magistrate to judge independently the reliability of the informant and that therefore the affidavit falls short of the requirements of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Appellant argues that the affidavit compounds hearsay particularly because it contains no showing that the informant had ever been inside room 406 of the Century House Motel so that there was nothing more than mere suspicion that contraband was on the premises. Finally, appellant complains that the issuing magistrate made no inquiry of Sergeant Beveridge about the sources of the information contained in the affidavit and the underlying facts and circumstances relating to the informant's reliability.

rooms 406 and 406A of the Century House Motel in Seattle, and therefore he was seeking a search warrant for such premises on the day in question.

We stated in State v. Peterson, 3 Wash.App. 946, 947, 478 P.2d 745, 746 (1970):

While the issuing magistrate may draw common sense inferences from the facts and circumstances contained in the affidavit, see United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), there must be a substantial factual basis for the ultimate conclusion that the items sought are probably located at the place to be searched.

(Citations omitted.) In short, it is our task to determine whether probable cause existed to issue the warrant here in question. In this connection, we are aided by the recent opinion of our state Supreme Court in State v. Patterson, 83 Wash.2d 49, 515 P.2d 496 (1973), in which it was said at 52, 515 P.2d at 498 Reasonableness is the key ingredient in the test for issuance of a search warrant. That is precisely what the federal constitution says and our state constitution necessarily implies. Do the documents or testimony supporting the warrant give a fair-minded, independent judicial officer, on considering all of the facts and circumstances set before him on oath or affirmation, good reason to issue the warrant?

Good reason for the issuance of a search warrant does not necessarily mean proof of criminal activity but merely probable cause to believe it may have occurred. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Suspicion, belief and guess alone are not enough. If the affidavit contains none of the underlying facts or circumstances from which the magistrate can find probable cause and is no more than a declaration of suspicion and belief, it is legally insufficient.

(Citation omitted.) See also State v. White, 10 Wash.App. 273, 518 P.2d 245 (1973). The Patterson court quoted with approval from United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), as follows 83 Wash.2d at 54, 515 P.2d at 499:

(T)he Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlayers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

. . . Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate The court then concluded in Patterson at page 55, 515 P.2d at page 500:

the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.

Thus, when all of the circumstances as related under oath to the issuing magistrate are considered, the question of probable cause is reduced to whether there is a 'substantial basis' for the warrant.

When the affidavit involved in the case at bar is viewed in light of the foregoing, it is apparent that it provided a substantial basis for the magistrate to issue the search warrant. We disagree with appellant's contention that Sergeant Beveridge's statements in the affidavit, indicating that the appellant had been observed delivering heroin and that a number of persons had been observed going to and from the motel rooms in question, do no more than raise mere suspicion. As our state Supreme Court perceptively observed while upholding an arrest for probable cause in State v. Poe, 74 Wash.2d 425, 429, 445 P.2d 196, 199 (1968):

An officer of a narcotics detail may find probable cause in activities of a suspect and in the appearance of paraphernalia or physical characteristics which to the eye of a layman could be without significance. His action should not, therefore, be measured by what might or might not be probable cause to an untrained civilian passerby, but by a standard appropriate for a reasonable, cautious, and prudent narcotics officer under the circumstances of the moment.

(Citation omitted). Similarly, magistrates issuing a search warrant may draw commensense inferences from the facts and circumstances contained in a supporting affidavit, and their determinations of probable cause will be treated with deference by reviewing courts. State v. Patterson, Supra; State v. Hodge, 5 Wash.App. 639, 490 P.2d 126 (1971). The trial court correctly denied the motion to suppress insofar as it was based upon the claimed inadequacy of the supporting affidavit.

The second prong of appellant's challenge to the It is manifest that the constitutions and statutes ¹ require that entry to make an arrest or search must be lawful. In most cases, lawful entry is conditioned upon announcement of identity and purpose, and a demand for admittance. On the other hand, however, the conditions cannot be rigid and inflexible or they become an empty formality. The conditions are part of a criteria of reasonableness and subject to certain exceptions generally recognized.

search warrant--the legality of its execution--presents a more difficult question. In Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), the requirement that police officers announce their identity and purpose prior to making a forcible entry into a citizen's residence was raised to constitutional status. In State v. Young, 76 Wash.2d 212, 455 P.2d 595 (1969), our state Supreme Court interpreted Ker to mean that, subject to a federal constitutional 'requirement of reasonableness,' each state is free to develop its own rules to meet the practical[530 P.2d 650] demands of local law enforcement, and the Young court stated at page 215, 455 P.2d at page 597:

In Ker, where the police entry was upheld, even the four justices who believed the 'reasonableness' standard had been violated, recognized exceptions to the Fourth Amendment's proscription against unannounced police intrusion:

(1) where the persons within already know of the officers' authority and purpose, or (2) where the officers are justified in the belief that persons within are in imminent Ker v. California, 374 U.S. at 47, 83 S.Ct. at 1636.

peril of bodily harm, or (3) where those within, made aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in...