State v. Higby

• Decision Date: 17 June 1980
• Docket Number: No. 3856-II,3856-II
• Parties: The STATE of Washington, Respondent, v. Anita HIGBY, Appellant.
• Court: Washington Court of Appeals

Page 457

26 Wn.App. 457

613 P.2d 1192

The STATE of Washington, Respondent, v. Anita HIGBY, Appellant.

No. 3856-II.

Court of Appeals of Washington, Division 2.

June 17, 1980.

James R. Short, Short & DeBay, Federal Way, for appellant.

Grant S. Meiner, Pros. Atty., Port Angeles, for respondent.

PETRICH, Judge.

The defendant was convicted on stipulated facts of maintaining a dwelling for the use and sale of controlled substances in violation of RCW 69.50.402(a)(5) ¹ and was placed on probation. The only issue on appeal is the validity of the search warrant by which the contraband was acquired. By timely objections, and in accordance with the stipulation, defendant has preserved her right to challenge the admissibility of the critical evidence seized under the warrant. Defendant contends that the information disclosed in the affidavit was too remote in time to establish probable cause to believe that marijuana was on the premises at the time of the search. We agree and reverse the conviction.

Defendant also asserts that information from unidentified informants in the affidavit did not meet the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). In light of our conclusion that all the information supplied in the affidavit was insufficient to establish probable cause to believe marijuana was on the premises at the time of the search, it is not necessary to reach this issue. The probative value of the information and the reliability of the informants is relevant, however, to the staleness question and is discussed in that context.

The affidavit in support of the search warrant was subscribed and sworn to jointly by Officers Alan L. Griswold and Daniel B. Gates on March 18, 1978. The affidavit's caption described in some detail the suspect premises as rented and occupied by the defendant. It stated the officers' belief that there was marijuana on the premises kept in violation of RCW 69.50.401(d). ² RCW 69.50.401(d) made it a misdemeanor to be in possession of 40 grams or less of marijuana. The facts disclosed in the affidavit to support the warrant were as follows:

(1) Officer Gates and his partner stopped a vehicle on March 17, 1978 and ultimately arrested the driver and passenger for possession of marijuana and hashish. The passenger stated that he had purchased hashish from the driver at his residence, and a search of the driver's home indicated that this information was reliable. The passenger also told the officers that he had purchased marijuana from Anita Higby at her residence approximately 2 weeks earlier. (2) Forks police on "several occasions" had observed a "considerable amount" of vehicular traffic and pedestrians visiting the Higby home for 2 or 3 minutes. These observations were made "at all hours of the day." The officers averred that this was "inconsistent with what would be generally considered ordinary visits." (3) Officer Griswold averred that 6 months previously he had been told by an informant that he or she had observed the packaging and sale of "ground leafy green vegetable matter" by Anita Higby in her home. The officer stated that he had known the informant for 3 years and that this person had "an excellent reputation for truth and honesty" in the community.

The provisions of the fourth amendment to the United States Constitution requiring probable cause of criminal activity to justify an intrusion into a home are enforced against the state through the Fourteenth Amendment and the standards are the same under either amendment. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). A search warrant affidavit need not establish a prima facie case that criminal acts are occurring, only the probability of such activity. State v. Patterson, 83 Wash.2d 49, 515 P.2d 496 (1973). It is not enough, however, to set forth that criminal activity occurred at some prior time. The facts or circumstances must support the reasonable probability that the criminal activity was occurring at or about the time the warrant was issued. Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932). Tabulation of the intervening number of days is not the final determinant of probable cause, but is only one factor considered along with all the other circumstances including the nature and scope of the suspected criminal activity. United States v. Rahn, 511 F.2d 290 (10th Cir. 1975); Andresen v. State, 24 Md.App. 128, 331 A.2d 78 (1975); Ringel, Searches & Seizures, Arrests and Confessions § 4.2(a) at 10 (1979).

The first paragraph of the affidavit in this case adequately establishes the passenger-informant's reliability, and sufficiently details a single purchase of marijuana from defendant at her home approximately 2 weeks prior to the application for the warrant. As the affidavit contemplated finding only a small quantity of marijuana in defendant's home, ³ it is reasonable to assume that the passenger-informant had purchased only a small quantity of marijuana. This portion of the affidavit likely establishes "past probable cause" of criminal activity. However, we do not believe that one sale of a small quantity of marijuana provides probable cause to search 2 weeks later. In State v. Spencer, 9 Wash.App. 95, 510 P.2d 833 (1973), the court held that two separate controlled substance purchases, the last made 61 days prior to the affidavit, was insufficient to establish probable cause at the time the magistrate issued the warrant. Three separate marijuana purchases of 2 ounces, each spanning an 8-day period, the last purchase made 31 days prior to the issuance of the warrant, was held insufficient to establish probable cause in State v. Willey, 363 A.2d 739 (Me.1976).

The State contends that the second informant's information and the officers' observation of the home supplied sufficient...