State v. Lair

Citation95 Wn.2d 706,630 P.2d 427
Decision Date18 June 1981
Docket NumberNo. 47191-6,47191-6
PartiesSTATE of Washington, Respondent, v. Rick LAIR, Defendant, Diane Webb, Petitioner.
CourtUnited States State Supreme Court of Washington

Sisson, Erickson, Balas & Johnston William Johnston, Bellingham, for petitioner.

David S. McEachran, Whatcom County Prosecutor, Charles J. Tull, Deputy County Prosecutor, Bellingham, for respondent.

WILLIAMS, Justice.

Petitioner Diane Webb was convicted by a jury of one count of possession of phencyclidine, a controlled substance. The Court of Appeals upheld the conviction in an unpublished opinion, and we affirm.

On January 11, 1978, Bellingham police officers, acting on information supplied by an informant, obtained a search warrant authorizing a search for a "(c)ontrolled substance marijuana" at 1248 Humboldt Street in Bellingham. Armed with the search warrant, the officers searched the premises and discovered marijuana and marijuana paraphernalia. In addition, the police seized a container of white pills, an envelope containing two baggies of mushrooms, items which appeared to be hashish, and additional items which appeared to be other unmarked controlled substances.

In the course of the search, a detective observed a folded piece of paper on a shelf on which marijuana and other paraphernalia were located. The officer testified that on previous searches he had seen similarly folded packets which contained controlled substances. He opened the paper and observed a fine white powder inside. Suspecting it to be cocaine, the officer seized the paper and powder. Subsequent laboratory analysis established the powder to be phencyclidine.

Rick Lair and Diane Webb were each charged with two counts of unlawful possession of a controlled substance count 1 for possession of marijuana and count 2 for possession of phencyclidine. Webb pleaded guilty to the first count, but went to trial on count 2. Lair was acquitted.

On appeal, petitioner raises three issues. First, she maintains that the information presented to the district court judge was insufficient to establish probable cause.

The affidavit offered in support of the search warrant contained the following information provided by the affiant, Robert Boule:

1. An informant, John Farrow, told affiant that he, Farrow, had delivered quantities of marijuana to a "Rick" at 1248 Humboldt Street in Bellingham in the early evening on January 9, 1978.

2. On the following day, January 10, Farrow told one John Henifin that he, Farrow, could get marijuana from "Rick" if Henifin wanted to buy it.

3. The affiant has known both John Farrow and John Henifin for 3 years.

4. John Henifin has given information previously which has been used to obtain search warrants, and this information has proved to be correct and reliable.

5. John Henifin told affiant that when "kids want drugs" "Rick" would get it to them through Farrow or a Bob Luder.

6. Bob Luder was arrested as a juvenile probation violator at the 1248 Humboldt Street residence on January 10, 1978.

Robert Boule also appeared personally before the district court judge and was examined under oath. See JCrR 2.10(c).

Based on the affidavit, it appears that of the two secondary informants, Farrow and Henifin, only Henifin had a proven "track record" of supplying accurate, helpful information to law enforcement officers. Thus, petitioner contends, the trial court erred in finding probable cause based on allegations made by Farrow, an informant whose reliability was not established.

When an affidavit in support of a search warrant contains hearsay information, the constitutional criteria for determining probable cause is measured by the two-pronged Aguilar-Spinelli test. The first prong of the test seeks to evaluate the trustworthiness of the informant's conclusions based on the underlying circumstances and sources of his knowledge. The second prong tests veracity. It seeks to evaluate the truthfulness of the informant. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. Partin, 88 Wash.2d 899, 903, 567 P.2d 1136 (1977). It is the second prong which is here at issue.

The veracity prong of the Aguilar-Spinelli test may be satisfied in either of two ways: (1) the credibility of the informant may be established; State v. Thompson, 13 Wash.App. 526, 530, 536 P.2d 683 (1975); State v. Walcott, 72 Wash.2d 959, 966, 435 P.2d 994 (1967); or (2) even if nothing is known about the informant, the facts and circumstances under which the information was furnished may reasonably support an inference that the informant is telling the truth. State v. Johnson, 17 Wash.App. 153, 155, 561 P.2d 701 (1977); Spinelli v. United States, supra, 393 U.S. at 416, 89 S.Ct. at 589. See generally State v. Chatmon, 9 Wash.App. 741, 515 P.2d 530 (1973) ("citizen" informant). See also Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741 (1974).

The most frequent way in which a hearsay informant's credibility is established is by a showing that the informant has previously supplied accurate, helpful information to law enforcement authorities. State v. Thompson, supra; State v. Pate, 12 Wash.App. 237, 529 P.2d 875 (1974). The existence of a proven "track record" of reliability reasonably supports an inference that the informant is presently telling the truth. See State v. Thompson, supra.

In the event an informant cannot demonstrate a record of truthfulness, the second prong of the Aguilar-Spinelli test may be satisfied if the magistrate is provided sufficient facts to determine that the informant's information on the specific occasion is reliable. As one court has explained:

Even knowing nothing about the inherent credibility of a source of information, we may still ask, "Was the information furnished under circumstances giving reasonable assurances of trustworthiness?" If so, the information is "reliable," notwithstanding the ignorance as to its source's credibility.

Thompson v. State, 16 Md.App. 560, 566, 298 A.2d 458 (1973).

In the present case, several circumstances are relevant to Farrow's veracity, even though he had no "track record". First, Farrow's statement was made against his penal interest and was made to a private individual, not a law enforcement official. Statements against penal interest are not often made lightly and may support an inference of reliability. State v. Johnson, supra; United States v. Harris, 403 U.S. 573, 581, 91 S.Ct. 2075, 2080, 29 L.Ed.2d 723 (1971).

Petitioner argues that Farrow's statement was not entitled to particular weight as an admission against penal interest, precisely because it was not made to a police officer. Since a private citizen would be less likely to make use of the information to the informant's detriment, it is urged, the statement would not be one against interest. It must be remembered, however, that the admission against penal interest is used to help determine the trustworthiness of the informant's information. One way of answering this question is to inquire whether an informant would have a motive to lie to his listener. United States v. Harris, supra, at 583-84, 91 S.Ct. at 2081-2082. Since one who admits criminal activity to a police officer faces possible prosecution, it is generally held to be a reasonable inference that a statement raising such a possibility is a credible one. See 1 W. LaFave, Search and Seizure § 3.3, at 522-35 (1978).

There is, however, respectable authority for the view that an admission to a private individual is also trustworthy:

Indeed, as a general proposition there is more reason to rely upon such admissions than admissions made directly to police, for in the latter situation there is always the chance that the informer is a stoolie who perceives he can admit to criminality without significant risk.

1 W. LaFave, supra § 3.3 at 530. See also Comi v. State, 26 Md.App. 511, 516-17, 338 A.2d 918 (1975); Commonwealth v. Kaschik, 235 Pa.Super. 388, 344 A.2d 519 (1975).

Particularly where the admission is not the only indication of reliability, we think it is one factor to consider when analyzing whether hearsay information provided by an informer without a "track record" is trustworthy enough to establish probable cause. United States v. Harris, supra, 403 U.S. at 580-84, 91 S.Ct. at 2080-2082.

Second, Farrow's information was corroborated by conclusory statements of another informant, Henifin, whose veracity was established. United States v. Harris, supra at 581, 91 S.Ct. at 2080; Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960); United States v. Allsenberrie, 424 F.2d 1209 (7th Cir. 1970). Petitioner argues that Henifin's corroborating statement has no significance, since Henifin's statements do not satisfy the basis-of-knowledge prong of the Aguilar-Spinelli test. See Moylan, supra at 773. A reliable informant's hearsay or conclusory statements, however, may be used to establish probable cause when they corroborate information given by an informant whose reliability has not been established, even though the conclusory statements themselves would not satisfy both of the Aguilar-Spinelli standards. United States v. Harris, supra; Jones v. United States, supra; see generally 1 W. LaFave, supra § 3.3 at 551-55. In the present case, Henifin, the reliable informant, corroborated Farrow's statement that marijuana was available from Rick at the Humboldt Street address.

Third, the Court of Appeals attached significance to the fact that the unreliable informant, Farrow, was named in the affidavit. Petitioner contends this fact is likewise of no significance. To the extent that the informant's name is the only information claimed to support his or her veracity, we have recently held that a mere name is insufficient. State v. Sieler, 95 Wash.2d 43, 48, 621 P.2d 1272 (1980). As we explained in...

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