State v. Lyons

• Decision Date: 26 April 2012
• Docket Number: No. 85746–6.,85746–6.
• Citation: 275 P.3d 314
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Patrick Jimi LYONS, aka Jimi Luke Andring, Petitioner.

275 P.3d 314

STATE of Washington, Respondent,

v.Patrick Jimi LYONS, aka Jimi Luke Andring, Petitioner.

No. 85746–6.

Supreme Court of Washington, En Banc.

April 26, 2012.

John Adams Moore Jr., Attorney at Law, Yakima, WA, for Petitioner.

Kevin Gregory Eilmes, Prosecuting Attorney's Office, Yakima, WA, for Respondent.

Tom P. Conom, The Conom Law Firm, Lynnwood, WA, amicus counsel for Washington Association of Criminal Defense Lawyers.WIGGINS, J.

¶ 1 Police executed a search warrant and arrested Patrick Jimi Lyons when they found a marijuana growing operation on his property. Probable cause for the search warrant was based solely on information from a confidential source. The affidavit for search warrant did not establish timely probable cause because it stated when the officer received the tip, not when the informant observed the criminal activity. Accordingly, the search warrant did not satisfy the requirements of the Washington State Constitution article I, section 7, and the trial court properly suppressed evidence obtained in the search.

FACTS

¶ 2 A Yakima District Court judge issued a search warrant for Lyons' property, based on an affidavit by Yakima Police Department Officer Gary Garza. Officer Garza made the following statement of probable cause in the affidavit:

Within the last 48 hours a reliable and confidential source of information (CS) contacted [narcotics] Detectives and stated he/she observed narcotics, specifically marijuana, being grown indoors at the listed address. The CS knows the suspect and homeowner as “Jimmy”. The CS observed the growing marijuana while inside an outbuilding on the property of the listed residence. The CS observed the marijuana growing in potted soil under active lighting designed to promote plant growth....

Clerk's Papers (CP) at 60. When they executed the search warrant, police discovered more than 200 mature marijuana plants maintained in a pole barn on Lyons' property. On the property police also found small, juvenile marijuana plants, supplies for packaging marijuana, and a large quantity of mushrooms. Lyons was arrested and charged with manufacturing marijuana, possession of mushrooms with intent to deliver, and possession of marijuana with intent to deliver.

¶ 3 Lyons moved to suppress the evidence seized from his property, arguing that the affidavit for search warrant failed to state timely probable cause. The superior court judge found that although the affidavit identified when the officer received the CS's information, it “said nothing about the timing of the informant's observation.” CP at 5 (Findings of Fact, Conclusions of Law and Order Granting Def.'s Mot. to Suppress (FFCL), Finding of Fact (FF) ¶ 4). The judge held that the affidavit was legally insufficient and the search unlawful and granted Lyons' motion to suppress. FFCL, Conclusion of Law (CL) ¶¶ 1–2). The State appealed.

¶ 4 In a two-judge majority opinion, the Court of Appeals reversed the trial court. State v. Lyons, 160 Wash.App. 100, 102, 247 P.3d 797, review granted, 172 Wash.2d 1013, 259 P.3d 1110 (2011). The majority held that the language in Officer Garza's affidavit, “[w]ithin the last 48 hours,” could be read either to apply solely to when the CS contacted police or to apply both to the time of contact and of the CS's observations. Id. at 107, 247 P.3d 797. The majority went on to hold the standard of review required the language be read to support the warrant. Id. The dissenting judge called this analysis a strained and unnatural reading. Id. at 108–09, 247 P.3d 797 (Siddoway, J., dissenting). We agree with Judge Siddoway's dissent.

ANALYSIS

I. The Fourth Amendment and Article I, Section 7

¶ 5 Fundamental principles set the stage for our analysis. A search warrant shall issue only on probable cause. U.S. Const. amend. IV; Wash. Const. art. I, § 7. The warrant must be supported by an affidavit that particularly identifies the place to be searched and items to be seized. Id. To establish probable cause, the affidavit must set forth sufficient facts to convince a reasonable person of the probability the defendant is engaged in criminal activity and that evidence of criminal activity can be found at the place to be searched. State v. Maddox, 152 Wash.2d 499, 509, 98 P.3d 1199 (2004). Even though the affidavit may be based on an unidentified informant's tip, the affidavit must contain some of the underlying circumstances that led the informant to believe that evidence could be found at the specified location. Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).¹ In particular, the affidavit must set forth the underlying circumstances specifically enough that the magistrate can independently judge the validity of both the affiant's and informant's conclusions.² Spinelli v. United States, 393 U.S. 410, 413, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

¶ 6 The requirement that a magistrate issue a search warrant is based on another fundamental principle: the determination of probable cause must be made by a magistrate based on the facts presented to the magistrate, instead of being made by police officers in the field. As the United States Supreme Court has explained:

The reasons for this rule go to the foundations of the Fourth Amendment....

“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”

Aguilar, 378 U.S. at 111, 84 S.Ct. 1509 (quoting Johnson v. United States, 333 U.S. 10, 13–14, 68 S.Ct. 367, 92 L.Ed. 436 (1948)). The facts set forth in the affidavit must support the conclusion that the evidence is probably at the premises to be searched at the time the warrant is issued. State v. Partin, 88 Wash.2d 899, 903, 567 P.2d 1136 (1977). We evaluate an affidavit “in a commonsense manner, rather than hypertechnically, and any doubts are resolved in favor of the warrant.” State v. Jackson, 150 Wash.2d 251, 265, 76 P.3d 217 (2003) ( Jackson II). However, “the [reviewing] court must still insist that the magistrate perform his ‘neutral and detached’ function and not serve merely as a rubber stamp for the police.” Aguilar, 378 U.S. at 111, 84 S.Ct. 1509 (quoting Johnson, 333 U.S. at 13–14, 68 S.Ct. 367).

II. Determining When a Warrant Is Based on Stale Information

¶ 7 Of course, some time passes between the officer's or informant's observations of criminal activity and the presentation of the affidavit to the magistrate. The magistrate must decide whether the passage of time is so prolonged that it is no longer probable that a search will reveal criminal activity or evidence, i.e., that the information is stale. The magistrate makes this determination based on the circumstances of each case. Sgro v. United States, 287 U.S. 206, 210–11, 53 S.Ct. 138, 77 L.Ed. 260 (1932). Among the factors for assessing staleness are the time between the known criminal activity and the nature and scope of the suspected activity. See, e.g., Andresen v. Maryland, 427 U.S. 463, 478 n. 9, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976); State v. Petty, 48 Wash.App. 615, 621, 740 P.2d 879 (1987). In the context of a marijuana growing operation, probable cause might still exist despite the passage of a substantial amount of time. See, e.g., State v. Payne, 54 Wash.App. 240, 246, 773 P.2d 122 (1989) (“[a] marijuana grow operation is hardly a ‘now you see it, now you don't’ event”); State v. Hall, 53 Wash.App. 296, 299–300, 766 P.2d 512 (1989) (two months between the date of the informant's observations and issuance of the warrant not too long).

¶ 8 It should go without saying that the magistrate cannot determine whether observations recited in the affidavit are stale unless the magistrate knows the date of those observations. Federal courts have found two separate statements of time to be important in determining staleness: (1) when the affiant received the tip and (2) when the informant observed the criminal activity. See Rosencranz v. United States, 356 F.2d 310, 315 (1st Cir.1966) (absence of any averment on either time frame a “serious defect” in the affidavit). Commentators have identified the second time frame as the critical one: the time of the facts relied on to establish probable cause. See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.7(b) at 391 n. 67 (4th ed.2004); see also Partin, 88 Wash.2d at 904, 567 P.2d 1136 (“the underlying facts alleged must be current” (emphasis added)); Payne, 54 Wash.App. at 246, 773 P.2d 122 (evaluating the time between the informant's observations and issuance of the warrant); Hall, 53 Wash.App. at 299–300, 766 P.2d 512 (same).

¶ 9 An affidavit lacking the timing of the necessary observations might still be sufficient if the magistrate can infer recency from other facts and circumstances in the affidavit. 2 LaFave, supra, at 393–94 (undated facts may be factually interrelated with other dated information in the affidavit); see also Maddox, 152 Wash.2d at 509, 98 P.3d 1199 (“In determining probable cause, the magistrate makes a practical commonsense decision, taking into account all the circumstances set forth in the affidavit and drawing commonsense inferences.”). However, without such additional facts from which to draw an inference of recency, the affidavit does not provide a magistrate a basis to find probable cause that a crime is now occurring. 2 LaFave, supra, at 392 (“ ‘It is one thing to expect the magistrate to give a commonsense reading to facts set forth and to draw inferences from them. It is quite another thing to expect the magistrate to reach for external facts and to build inference upon inference in order to create a reasonable basis for his belief that a...