State v. Henker

• Decision Date: 29 August 1957
• Docket Number: No. 33815,33815
• Citation: 50 Wn.2d 809,314 P.2d 645
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Edward Clifford HENKER, Appellant.

Page 809

50 Wn.2d 809

314 P.2d 645

The STATE of Washington, Respondent, v. Edward Clifford HENKER, Appellant.

No. 33815.

Supreme Court of Washington, Department 1.

Aug. 29, 1957.

Del Cary Smith and Ellsworth I. Connelly, Spokane, for appellant.

Hugh H. Evans, Joseph J. Rekofke, Spokane, and John J. Lally, Pros. Atty., for Spokane County, Spokane, for respondent.

FINLEY, Justice.

Defendant Henker was charged under RCW 69.33.020 with unlawfully possessing and having under his control a narcotic drug, to wit: canabis, commonly known as marijuana. After conviction by a jury, imposition of sentence, and entry of judgment, Henker perfected an appeal to this court.

In the trial court defendant Henker moved, at the appropriate time, to suppress certain significantly incriminating evidence, on the ground that it had been obtained through illegal search and seizure in that the search warrant had been issued without probable cause. The trial court denied the motion to suppress the evidence, and Henker assigns error to that action.

The record shows that Mrs. Campbell, a woman acquaintance of the appellant, obtained three marijuana leaves from a plant growing in a gladioli bed in the back yard of appellant's home. She turned the marijuana leaves over to the police, who had them analyzed by a chemist.

Upon receiving the above information, which indicated a possible criminal violation by the appellant, Spokane Police Officer Harry Cockburn (assigned to the narcotics detail) undertook an investigation. He went on the property of appellant's adjoining neighbor and observed some plants having the characteristics of marijuana growing in appellant's gladioli bed.

Officer Cockburn obtained a search warrant on the basis of the indicated information. In the subsequent search the several marijuana plants which he had seen growing on appellant's property were confiscated. These plants were introduced into evidence at the trial.

Appellant contends that the facts necessary to show probable cause must be supported by evidence admissible in the case in chief, and cites Ladd v. Miles, 1932, 171 Wash. 44, 17 P.2d 875, which in turn cites Grau v. United States, 1932, 287 U.S. 124, 53 S.Ct. 38, 77 L.Ed. 212. This contention of appellant is entirely rebutted by the language of the court in Brinegar v. United States, 1949, 338 U.S. 160, at page 174, 69 S.Ct. 1302, at page 1310, 93 L.Ed. 1879; see, particularly, footnote 12 reading 'The inappropriateness of applying the rules of evidence as a criterion to determine probable cause is apparent in the case of an application for a warrant before a magistrate, the context in which the issue of probable cause most frequently arises. The ordinary rules of evidence are generally not applied in ex parte proceedings, 'partly because there is no opponent to invoke them, partly because the judge's determination is usually discretionary, partly because it is seldom final, but mainly because the system of Evidence rules was devised for the special control of trials by jury,' 1 Wigmore, Evidence (3d ed., 1940) 19. * * *'

In any event, the Ladd case, factually, is clearly distinguishable from the instant case. In the latter case, as previously indicated, Officer Cockburn made an independent, personal investigation.

Actually, probable cause is a simple yet meaningful legal concept. For the protection of the public, it imposes reasonable restraint upon the issuance of search warrants to law enforcement officers. The concept is a practicable, workable one. It requires that there be reasonable grounds for suspicion supported by circumstances sufficiently strong in themselves to warrant a man of ordinary caution in believing the accused to be guilty of the indicated crime. Cf. State v. Hughlett, 124 Wash. 366, 214 P. 841. We believe that the facts available to Officer Cockburn were sufficient to cause a man of reasonable caution to believe that an offense was being committed by the appellant; consequently, we are convinced that the search warrant was issued upon probable cause.

In another assignment of error appellant contends that the state was required to prove beyond a reasonable doubt, not only that Henker had knowledge of the existence of marijuana on...