State v. Hink

• Decision Date: 21 January 1972
• Docket Number: No. 352--III,352--III
• Citation: 6 Wn.App. 374,492 P.2d 1053
• Parties: STATE of Washington, Respondent, v. Thomas David HINK, also known as Shawn Turner, Appellant.
• Court: Washington Court of Appeals

Page 374

6 Wn.App. 374

492 P.2d 1053

STATE of Washington, Respondent, v. Thomas David HINK, also known as Shawn Turner, Appellant.

No. 352--III.

Court of Appeals of Washington, Division 3.

Jan. 21, 1972.

Rehearing Denied March 1, 1972.

Richard L. Cease, Public Defender, Sid Wurzburg, Asst. Public Defender, Spokane, for appellant.

Donald C. Brockett, Pros. Atty., James B. Crum, Deputy Pros. Atty., Spokane, for respondent.

EVANS, Judge.

Defendant Thomas Hink, also known as Shawn Turner, appeals from a conviction of possession of a dangerous drug, LSD.

On November 10, 1970 Detective George Schee, a member of the narcotics squad of the Spokane County Sheriff's office, signed an affidavit for and obtained a search warrant authorizing search of apartment 6 at 2026 West Fourth, Spokane, Washington. Armed with the search warrant, officers searched the apartment, found 1600 units of LSD and arrested the defendant, among others.

Defendant challenges the validity of the search, and the question first presented is whether he has standing to do so. The search warrant affidavit refers to a person named 'Shawn' as being involved in a drug transaction and the information charges the defendant Thomas Hink, also known as Shawn Turner. One of the witnesses testified that she was the renter of apartment 6 at 2026 West Fourth in Spokane, that she had been dating the defendant, whom she knew as Shawn Turner, and that at the time of the search defendant was an invited guest in her apartment. In other words, the search warrant was directed at the defendant. As the person against whom the search was directed, we hold that defendant has standing to challenge the search. As stated in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 734, 4 L.Ed.2d 697 (1960):

No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him.

In attacking the affidavit ¹ defendant relies on 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). He contends the affidavit is insufficient to establish probable cause (1) because it does not set forth the underlying circumstances which enable a magistrate to independently judge the validity of an informant's conclusion that contraband is likely to be found where it is said to be; and (2) the claim the informant was credible and his information reliable is not supported within the affidavit.

We cannot agree. Detective Schee swore that on the day of making the affidavit he had been given information from two sepatate informants who corroborated each other's story, and who were both reliable in that they had on several previous occasions supplied reliable information to law enforcement agencies. Informant No. 1 related to affiant that the 'subject known to him was to deliver a large quantity of LSD to 2026 W. Fourth, Spokane, apartment 6 this afternoon.' Informant No. 2 related that 'a quantity of cocaine and LSD was to be delivered to the apartment at 2026 W. Fourth, Apartment 6.' The underlying basis for the information of both informants is that they 'received this information from Shawn and believe it to be true and correct.' This much of the affidavit is enough to establish probable cause. Aguilar v. Texas, Supra; Spinelli v. United States, Supra; Jones v. United States, Supra; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Ventresca, 380 U.S. 102 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); State v. Peterson, 3 Wash.App. 946, 478 P.2d 745 (1970); United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

Defendant next contends that even if the affidavit on its face showed probable cause for the issuance of the search warrant, the evidence adduced at trial established that the officer did not in fact have sufficient competent evidence to show probable cause for the issuance of the search warrant because, in part, the affidavit was based on misstatements of fact. This contention must likewise be rejected. The third paragraph of the affidavit of Detective Schee recites 'both informants on the evening of November 9, 1970 while at 1023 East Nora saw Shawn with 1600 doses of LSD in various forms.' During the trial informant No. 1 testified that he had not seen any LSD at the Nora Street address on November 9, and further testified that he had never told Detective Schee that he had seen LSD at that address. Informant No. 2 testified he never saw defendant with any LSD prior to the time of the arrest, and further, he did not arrive in Spokane until 11:30 p.m. on the evening of November 9 and did not see the defendant on that date. Detective Schee testified it was his good faith belief that both informants had in fact told him they saw Shawn with 1600 units of LSD on November 9, as stated in the affidavit. The fact that 1600 units of LSD were actually found in the subsequent search indicates that at most Detective Schee was guilty of an honest misunderstanding of what the informants had told him. Neither false affidavits nor material inaccuracies necessary to a determination of probable cause can be sanctioned or condoned. However, this court will not strike down a warrant based upon a good faith affidavit which contains a misstatement that is only of peripheral relevancy. Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964). The factual inaccuracies relating to what informants were said to have seen at 1023 E. Nora were not necessary to determination of probable cause that a sale was to be made at a later time at 2026 W. Fourth, and, not being within the personal knowledge of the affiant did not go to the integrity of Detective Schee's affidavit.

Defendant next contends the trial court erred in allowing the state's expert witness, John Anderson, to express his opinion that the material contained in exhibit 1 was LSD. We cannot agree.

Mr Anderson is a criminologist holding a bachelor of science degree in chemistry, and at the time of trial was a candidate for a master's degree in forensic science. He had been employed for 13 years as the principal chemist and director of a New Jersey police laboratory and had testified as an expert witness concerning chemical tests and chemical analyses in more than 700 trials in New Jersey, Pennsylvania and New York, as well as in military courts.

The chemical tests conducted by Anderson established the presence of an indole hydrocarbon structure in the material contained in exhibit 1. Since several substances other than LSD contain such a structure, Mr. Anderson also noted the reaction time of the color change involved in that test,...