State v. Lane
| Decision Date | 12 December 1989 |
| Docket Number | Nos. 9340-9-II,9341-7-III,s. 9340-9-II |
| Citation | 786 P.2d 277,56 Wn.App. 286 |
| Parties | STATE of Washington, Respondent, v. Stacy Gay LANE, Appellant. STATE of Washington, Respondent, v. Jesus Servin TORRES, Appellant. |
| Court | Washington Court of Appeals |
Katherine Steele Knox, Pasco, for appellant Lane (appointed counsel for appeal).
C. Harlan Johnson, Pasco, for appellant Torres.
Dennis DeFelice, Pros. Atty., and Susan Dahl and Ann Marie Dilembo, Deputies, for respondent.
Stacy Lane and Jesus Torres appeal their jury convictions for possession of a controlled substance (cocaine) with intent to deliver. 1 The primary issue concerns the sufficiency of the affidavit in support of the search warrant for their residence. We affirm.
On February 15, 1988, Detective Henry Montelongo of the Pasco Police Department signed an affidavit in support of a warrant request to search two apartments at 405 and 407 W. Bonneville, Pasco. He stated that within the last 24 hours, a confidential informant had made a controlled buy of one-eighth ounce of cocaine at 407 W. Bonneville. Prior to the buy, the informant was strip searched and given $120. Detective Randy Barnes observed the informant enter the main entrance at 407 W. Bonneville.
The affidavit recited that Detective Barnes then observed "a short Mexican male, light complexion, straight short hair, wearing a powder blue jacket, ... approximate age early twenties ..." exit the door entered by the informant. This person went into the lower apartment, numbered 405, which the affidavit described as being just to the right of the main entrance. Detective Barnes also saw this same man return to the upper apartment.
When the informant came out of 407 W. Bonneville, he no longer had the $120 buy money and gave Detective Barnes one-eighth ounce of white powder. Detective Barnes field tested the powder and determined it to be cocaine. The informant related after entering the building he proceeded upstairs and went into the first apartment on the right. Two Mexican males were present. One was the person observed by Detective Barnes, previously described herein; the other was described as 5 feet 8 inches, approximately 30 years old, with curly bushy hair, large stomach, and wearing brown slacks and a tan dress shirt. The informant stated that the younger Mexican male went downstairs to get the cocaine. After the purchase, the informant stated he needed more cocaine. The two men told him to come back in 1 hour and more drugs would be available.
Detective Montelongo further attested that the lower level apartment, 405 W. Bonneville, had been under surveillance for some time, that he had seen a large amount of traffic in and out of the apartment, and other officers had seen known drug users and dealers go in on several occasions.
The court issued a search warrant for both described apartments and for the two men described in the affidavit. The search was conducted that same evening. The address of the upper apartment was in fact 405 1/2 instead of 407. At 405 1/2, the officers seized approximately 1 ounce of cocaine located inside the right front pocket of a tan jacket hanging in the bedroom closet. They also found rent receipts and utility bills for 405 1/2 made out to Stacy Lane, and letters addressed to Jesus Torres. Lucio Ayala was present in 405 1/2 at the time of the search. He told the officers that he had been staying there.
The officers executed the warrant for 405 W. Bonneville at the same time. There, they found Mr. Torres, Ms. Lane, and their infant son. $850 was taken from inside the baby's diaper bag. In a packet of baby wipes, they found three needles and syringes. The officers also seized a gram scale from the lower apartment. According to Detective Montelongo, Mr. Torres told him that Ms. Lane had nothing to do with the drugs; they were his and he was responsible.
Mr. Ayala, Mr. Torres, and Ms. Lane were all charged with possession of a controlled substance with intent to deliver. Their cases were joined for trial.
Prior to trial, Mr. Torres and Ms. Lane moved to suppress the evidence seized during the search. The court rejected the argument that the warrant did not specifically describe the premises and that the reliability of the informant was not established. The court found:
Given the specificity of the physical description of the apartment, the inaccuracy of the address is not such a discrepancy that it would void the validity of the search warrant.
The affidavit for the search warrant clearly indicates the informant used was not known to provide information in the past. Nor was the issuing magistrate given any other information concerning the informant's reliability. However, the affidavit does indicate that this informant, within the 24 hours immediately [preceding] the affidavit, had made a controlled buy at the address listed in the affidavit. This controlled buy was made after strip searching the informant and retrieving 1/8th ounce of cocaine. Further, the affidavit is clear that the information given by the informant after recontacting the officers was specifically corroborated by Detective Barnes through his personal observation and surveillance at the address.
The defendants also moved for disclosure of the name of the confidential informant and for the appointment of an investigator at public expense to locate the informant. The court granted the motion and continued the trial 5 days on the basis that the testimony of the informant could be crucial to the defense. The court stated there was some question in its mind as to whether Mr. Torres fit the description in the affidavit; thus, the informant might testify that Mr. Torres was not one of the men he dealt with. However, the investigator was not able to find the informant before trial began. The court refused to postpone the trial to allow additional time to search. It reasoned that the search for the informant had no certainty of success, regardless of the amount of time allowed. During trial, defense counsel advised the court that an investigator had located the informant but he had again disappeared before the police arrived to detain him.
The State's case at trial consisted of the testimony of the police officers who executed the search warrant. The defendants testified in their own behalf. Mr. Ayala said he was staying in Mr. Torres' apartment while Mr. Torres and Ms. Lane stayed in a friend's apartment downstairs. He slept in the living room. He stated the coat in the bedroom closet was not his. According to Mr. Ayala, a man named Miguel also was staying in the apartment.
Mr. Torres testified that he and Stacy Lane had lived together for about a year. The syringes found in the diaper bag belonged to Ms. Lane, who had a drug problem. They had been staying in the downstairs apartment while the tenant went home to Idaho to have a baby. He stated that the coat in which the cocaine was found belonged to a friend of his, Manuel Virgen, who had been staying in the upstairs apartment for several days before the arrest. Mr. Torres denied admitting to Detective Montelongo that the cocaine was his.
Ms. Lane also testified that there was another person staying in the upstairs apartment prior to the arrest. She stated she did not know there was cocaine in the coat; if she had known about it, she would have used it because of her drug habit.
The jury returned a guilty verdict.
First, did the court err in admitting the evidence seized during the search? Mr. Torres and Ms. Lane contend that the informant's tip did not satisfy the veracity prong of the Aguilar-Spinelli 2 test. Ms. Lane further contends the warrant did not describe the upstairs apartment sufficiently since the address was wrong.
Washington law relating to the validity of search warrants is summarized in State v. Murray, 110 Wash.2d 706, 711-12, 757 P.2d 487 (1988):
The validity of a search warrant depends on the existence of "probable cause". As we have interpreted Const. art. 1, § 7, that provision forbids police searches of private homes except when probable cause exists and a warrant has issued. See, e.g., State v. Huft, 106 Wash.2d 206, 209, 720 P.2d 838 (1986). When police suspicions of illegal activity originate in an informant's tip, probable cause is tested against the standards described in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The "Aguilar- Spinelli test" holds that probable cause will exist only if the informant's basis of knowledge and veracity have been demonstrated or if the substance of the tip has been verified by independent [police] investigation. Huft, 106 Wash.2d at 209-10, 720 P.2d 838; State v. Jackson, 102 Wash.2d 432, 436-38, 688 P.2d 136 (1984).
....
Corroborating evidence offered to remedy a deficiency in either prong of the Aguilar- Spinelli test "should point to suspicious activities or indications of criminal activity along the lines suggested by the informant." Huft, 106 Wash.2d at 210, 720 P.2d 838. "Merely verifying 'innocuous details', commonly known facts or easily predictable events should not suffice to remedy a deficiency in either the basis of knowledge or veracity prong." Jackson, 102 Wash.2d at 438, 688 P.2d 136. Probable cause exists, moreover, only if the tip, as corroborated, "is as trustworthy as a tip which would pass [the Aguilar- Spinelli test] without independent corroboration." Spinelli, 393 U.S. at 415, 89 S.Ct. at 588, see Jackson, 102 Wash.2d at 446, 688 P.2d 136.
(Italics ours.) See also State v. Dice, 55 Wash.App. 489, 491, 778 P.2d 531 (1989).
A controlled buy can establish an informant's reliability:
In a "controlled buy," an informant claiming to know that drugs are for sale at a particular place is given marked money, searched for drugs, and observed while sent into the specified location. If the informant "goes in empty...
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