State v. Jackson, 50343-5

Citation102 Wn.2d 432,688 P.2d 136
Decision Date06 September 1984
Docket NumberNo. 50343-5,50343-5
PartiesThe STATE of Washington, Respondent, v. Walter F. JACKSON and Linda M. Jackson, Petitioners.
CourtUnited States State Supreme Court of Washington

Timothy K. Ford, Seattle, for petitioners.

Carmon Danny Clem, Kitsap County Prosecutor, Kenneth Bell, Deputy Pros. Atty., Port Orchard, for respondent.

ROSELLINI, Justice.

Petitioners Walter and Linda Jackson appeal a Court of Appeals decision affirming convictions for possession of marijuana. The primary issue is whether a search warrant was valid under Const. art. 1, § 7.

We hold that Const. art. 1, § 7 requires that, in evaluating the existence of probable cause in relation to informants' tips, the affidavit in support of the warrant must establish the basis of information and credibility of the informant. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). We find that the affidavits and independent investigatory corroboration satisfy these requirements and the warrant was thus valid. The convictions are affirmed.

The challenged Jackson residence search warrant stemmed from federal surveillance of Judith Stern, who, like the Jacksons, lived on Bainbridge Island. The affidavit supporting the search warrant for the Jacksons' home incorporated by reference several affidavits and other documents which had been filed in conjunction with the investigation of Stern. None of these documents mentioned the Jacksons, but they did describe Stern's activities in some detail. According to informant James Howell, Stern represented herself to be the largest marijuana dealer in this part of the country. Howell stated that he had, at Stern's direction, purchased two mini-motorhomes and modified them so they could be used for smuggling marijuana from Florida to Washington.

The affidavit in support of the warrant to search the Jackson residence recited that on March 9, 1981, pursuant to a federal warrant, federal agents searched Stern's residence on Bainbridge Island and seized about 5,000 pounds of marijuana, $140,000 in cash, and two handguns.

The Jackson affidavit next stated that on the same day Stern's residence was searched, federal agents saw a BMW arrive at the Stern residence. The BMW was registered to Larry Corby. According to the affiant, "the reliable informant" had previously identified a "Larry" as one of Stern's principal distributors. On the afternoon of March 9, the agents saw Stern and a man matching Larry Corby's description removing objects from the BMW and, later, placing a large, heavy, green plastic bag in the trunk. Later that day, when Stern's house was searched, many similar garbage bags containing marijuana were seized. Fifty-five minutes after Corby's departure from Stern's house, authorities spotted the BMW parked in the driveway of a residence at 12509 Sunrise Drive N.E. The BMW remained there for over an hour, but the agents apparently did not see anyone unload anything from the trunk. The affiant did say, however, that "[t]he reliable informant" had previously pointed out the Sunrise Drive address as the home of " 'Walter,' who is also another of Judy Stern's main distributors." The affidavit does not mention how the informant knew that Walter was a "distributor." Finally, the affiant said that the federal agents saw several vehicles at the Sunrise Address which were registered to "Sharon [sic ] and Walter Jackson."

Based upon the above information, Federal Magistrate John Weinberg issued a warrant to search the Sunrise Drive residence. Federal agents executed the warrant on March 10, 1981 and seized a large quantity of marijuana and cash. Thereafter, the Kitsap County prosecutor charged the Jacksons with possession of over 40 grams of marijuana.

The Jacksons moved to suppress the marijuana, arguing that the search warrant was invalid. The trial court denied the motion, and both defendants were subsequently found guilty. The Court of Appeals, Division Two, held that the search warrant was valid under the "totality of the circumstances" test established in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) and affirmed both convictions by unpublished opinion. State v. Jackson, 36 Wn.App. 1040 (January 5, 1984).

Prior to the Court's decision in Gates, Fourth Amendment analysis utilized the Aguilar-Spinelli 2-pronged test for evaluating the existence of probable cause in relation to informants' tips. For an informant's tip (as detailed in an affidavit) to create probable cause for a search warrant to issue: (1) the officer's affidavit must set forth some of the underlying circumstances from which the informant drew his conclusion so that a magistrate can independently evaluate the reliability of the manner in which the informant acquired his information; and (2) the affidavit must set forth some of the underlying circumstances from which the officer concluded that the informant was credible or his information reliable. Aguilar, 378 U.S. at 114, 84 S.Ct. at 1514; Spinelli, 393 U.S. at 413, 89 S.Ct. at 587.

After nearly 15 years, the United States Supreme Court abandoned the Aguilar-Spinelli test in Gates. The Court opined that "it is wiser to abandon the 'two-pronged test' established ... in Aguilar and Spinelli " in favor of a "totality of the circumstances" approach. Gates, 103 S.Ct. at 2332. Under this nebulous standard, the issuing magistrate is to make a "practical, common-sense decision whether ... there is a fair probability" that the evidence sought will be found in the place to be searched. Gates, 103 S.Ct. at 2332.

The principal difference between the Gates approach and the Aguilar-Spinelli rule is that "veracity" and "basis of knowledge", while still relevant, are no longer both essential. Under Gates, a "deficiency" on either of these "prongs" may "be compensated for" by a "strong showing" on the other prong. Gates, 103 S.Ct. at 2329. The "totality of the circumstances" analysis downgrades the veracity and basis of knowledge elements and makes them only "relevant considerations." Gates, 103 S.Ct. at 2329. Thus,

[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Gates, 103 S.Ct. at 2332. The task of a reviewing court, the Gates majority makes plain, is "simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Gates, 103 S.Ct. at 2332. In other words, the warrant is to be upheld as long as there is a substantial basis for a fair probability that evidence will be found in a particular case. As concurring Justice White read the majority opinion, the Court holds that

if an affidavit contains anything more [than "bare conclusions"], it should be left to the issuing magistrate to decide, based solely on "practical[ity]" and "commonsense," whether there is a fair probability that contraband will be found in a particular place.

Gates, 103 S.Ct. at 2350 (White, J., concurring). Accord, Massachusetts v. Upton, --- U.S. ----, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984).

In Washington, the Aguilar-Spinelli test has been an important method of evaluating informants' tips under both the Fourth Amendment and Const. art. 1, § 7. See, e.g., State v. Woodall, 100 Wash.2d 74, 666 P.2d 364 (1983); State v. Fisher, 96 Wash.2d 962, 639 P.2d 743 (1982); State v. Partin, 88 Wash.2d 899, 567 P.2d 1136 (1977); State v. Walcott, 72 Wash.2d 959, 435 P.2d 994 (1967).

Underlying the Aguilar-Spinelli test is the basic belief that the determination of probable cause to issue a warrant must be made by a magistrate, not law enforcement officers who seek warrants. To perform the constitutionally prescribed function, rather than being a rubber stamp, a magistrate requires an affidavit which informs him of the underlying circumstances which lead the officer to conclude that the informant was credible and obtained the information in a reliable way. Only in this way (as the Court emphasized in Aguilar and Spinelli ) can the magistrate make the proper independent judgment about the persuasiveness of the facts relied upon by the officer to show probable cause. Spinelli, 393 U.S. at 412-16, 89 S.Ct. at 586-89; Aguilar, 378 U.S. at 110-15, 84 S.Ct. at 1511-14.

The two prongs of the Aguilar-Spinelli test have an independent status; they are analytically severable and each insures the validity of the information. The officer's oath that the informant has often furnished reliable information in the past establishes general trustworthiness. While this is important, it is still necessary that the "basis of knowledge" prong be satisfied--the officer must explain how the informant claims to have come by the information in this case. The converse is also true. Even if the informant states how he obtained the information which led him to conclude that contraband is located in a certain building, it is still necessary to establish the informant's credibility. See Woodall, 100 Wash.2d at 76-78, 666 P.2d 364; Fisher, 96 Wash.2d at 965-66, 639 P.2d 743; Partin, 88 Wash.2d at 903-04, 567 P.2d 1136.

The most common way to satisfy the "veracity" prong is to evaluate the informant's "track record", i.e., has he provided accurate information to the police a number of times in the past? Woodall, 100 Wash.2d at 76, 666 P.2d 364; Fisher, 96 Wash.2d at 965, 639 P.2d 743; see also 1 W. LaFave, Search & Seizure § 3.3(b) (1978). If the informant's track record is inadequate, it may be possible to satisfy the veracity prong by showing that the accusation was a declaration against the informant's penal interest. See State v. Bean, 89 Wash.2d 467, 572 P.2d...

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