State v. Maddox

• Decision Date: 14 October 2004
• Docket Number: No. 74076-3.,74076-3.
• Citation: 152 Wash.2d 499,98 P.3d 1199,152 Wn.2d 499
• Parties: STATE of Washington, Respondent, v. Christopher Dorian MADDOX, Petitioner.
• Court: Washington Supreme Court

98 P.3d 1199

152 Wn.2d 499

152 Wash.2d 499

STATE of Washington, Respondent, v. Christopher Dorian MADDOX, Petitioner.

No. 74076-3.

Supreme Court of Washington, En Banc.

Argued March 9, 2004.

Decided October 14, 2004.

Steven Whitman Thayer, Vancouver, for Petitioner.

Leann Shill Larson, Richard Alan Melnick, Pros. Attys. Office, Vancouver, for Respondent.

IRELAND, J.

In this case we consider whether probable cause must be redetermined by a magistrate when information acquired after issuance of a search warrant, but before its execution, negatively impacts probable cause. We hold that when law enforcement receives information that, if believed, negates probable cause, the officers must return to the magistrate for reevaluation of probable cause. Because probable cause was not negated in this case, we affirm the Court of Appeals.

FACTS

On September 15, 2000, an informant for the Clark-Skamania Drug Task Force made a controlled buy of approximately one ounce of methamphetamine from the defendant, Christopher Dorian Maddox, at Maddox's home. The informant asked if Maddox had any more methamphetamine to sell. Maddox told the informant "maybe," if the informant would bring back cash. Clerk's Papers (CP) at 10.

On September 18, 2000, Detective Mary Parsons obtained a search warrant in Clark County District Court to search Maddox's residence. The affidavit for the search warrant described the September 15 controlled buy. The affidavit also stated that the informant had purchased methamphetamine from Maddox approximately 35 times over the prior four years.

The warrant authorized a search of Maddox's house for methamphetamine; paraphernalia used in the distribution of methamphetamine, including scales, baggies, and other items; currency; and books, photographs, and other records related to the manufacture, sale, and distribution of methamphetamine. Ex. 1, at 2-3. The warrant required the search occur within 10 days in accordance with CrR 2.3(c).

The State did not execute the warrant immediately. Detective Parsons testified that the task force was concerned that immediate execution of the warrant would jeopardize other investigations in which the informant was participating.

On September 21, 2000, the informant made another controlled buy from Maddox at Maddox's home. This time the informant did not have enough money to purchase the prepackaged one-ounce methamphetamine, and Maddox refused to split a package into smaller quantities. Therefore, Maddox accepted the informant's money as partial payment for one ounce of methamphetamine and "fronted" the informant the balance.

On September 27, 2000, Maddox demanded by phone that the informant pay the balance of money owed to him "now." Report of Proceedings (RP) at 42. The informant went to Maddox's home with $1,000 cash from the task force to pay the drug debt and also to complete a third controlled buy of methamphetamine. Maddox collected $720 as payment of the informant's debts. Maddox told the informant that he did not have any methamphetamine to sell to the informant; he said that "he was out and that he would have some in a couple of days." RP at 39.

On September 28, 2000, the task force executed the search warrant. Officers seized an electronic scale, 881.6 grams of marijuana, 45 pills of ecstasy, and $2,100 in cash. No methamphetamine was found.

The State charged Maddox with two counts of unlawful delivery of methamphetamine, one count of unlawful possession of marijuana with intent to deliver, and one count of unlawful possession of ecstasy with intent to deliver. Later, the State amended the complaint, adding a school-zone enhancement to each count. The two methamphetamine counts were severed and following a jury trial, Maddox was acquitted.

Prior to the bench trial for the two remaining counts, unlawful possession with intent to deliver ecstasy and marijuana, Maddox filed a motion to suppress the ecstasy and marijuana seized under the warrant. The court denied the motion to suppress and found Maddox guilty on both counts. Maddox appealed and the Court of Appeals affirmed. This court granted discretionary review.

ANALYSIS

Issue 1. Were the police required to return to the magistrate for a redetermination of probable cause when they learned that Maddox said he did not have any methamphetamine to sell?

The fourth amendment to the United States Constitution provides that warrants may be issued only upon a showing of "probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. The Constitution requires that a detached and neutral magistrate or judge make the determination of probable cause. State v. Smith, 16 Wash.App. 425, 427, 558 P.2d 265 (1976).¹

Probable cause exists where there are facts and circumstances sufficient to establish a reasonable inference that the defendant is involved in criminal activity and that evidence of the criminal activity can be found at the place to be searched. State v. Thein, 138 Wash.2d 133, 140, 977 P.2d 582 (1999). It is only the probability of criminal activity, not a prima facie showing of it, that governs probable cause. The magistrate is entitled to make reasonable inferences from the facts and circumstances set out in the affidavit. In re Pers. Restraint of Yim, 139 Wash.2d 581, 596, 989 P.2d 512 (1999) (quoting State v. Helmka, 86 Wash.2d 91, 93, 542 P.2d 115 (1975)).

A delay in executing the warrant may render the magistrate's probable cause determination stale. State v. Thomas, 121 Wash.2d 504, 513, 851 P.2d 673 (1993). Common sense is the test for staleness of information in a search warrant affidavit. State v. Petty, 48 Wash.App. 615, 621, 740 P.2d 879 (1987) (citing State v. Riley, 34 Wash.App. 529, 534, 663 P.2d 145 (1983)). The information is not stale for purposes of probable cause if the facts and circumstances in the affidavit support a commonsense determination that there is continuing and contemporaneous possession of the property intended to be seized. State v. Bohannon, 62 Wash.App. 462, 470, 814 P.2d 694 (1991).

In evaluating whether the facts underlying a search warrant are stale, the court looks at the totality of circumstances. See Bohannon, 62 Wash.App. at 470,

814 P.2d 694. The length of time between issuance and execution of the warrant is only one factor to consider along with other relevant circumstances, including the nature and scope of the suspected criminal activity. See, e.g., Andresen v. Maryland, 427 U.S. 463, 478 n. 9, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976) (probable cause not stale despite three month delay in warrant's execution because of the nature of documentary evidence and defendant's ongoing criminal activity).

For example, in State v. Hall, 53 Wash.App. 296, 300, 766 P.2d 512 (1989), the court rejected the defendant's argument that the facts supporting the search warrant were stale. Following surveillance of a marijuana grow operation, police arrested Mason, who identified defendant Hall as the supplier of the marijuana plants. It had been two months since Mason had been in Hall's home to purchase marijuana plants. Nevertheless, the court held that probable cause to search existed because it was reasonable to believe that a grow operation was still in existence considering the number of plants found in Mason's possession and Mason's comment about the size of the plants remaining at the house. Hall, 53 Wash.App. at 300, 766 P.2d 512.

This accords with the majority rule followed in other jurisdictions that the determination of whether probable cause is stale depends on the nature of the criminal activity, the length of the activity, and the nature of the property to be seized. See, e.g., Cordova v. Wyoming, 33 P.3d 142 (Wy.2001)

.

In this case, Maddox does not complain that probable cause dissipated simply because of the delay in the execution of the warrant. Rather, Maddox asserts that law enforcement's acquisition of information in the interim, which negatively impacted probable cause, rendered the initial probable cause determination stale and thus required a redetermination of probable cause by the magistrate. This court has not previously considered this specific issue.

The Court of Appeals held that the police are required to return to the magistrate for a redetermination of probable cause when information acquired after issuance but before execution would, if believed, negate probable cause. State v. Maddox, 116 Wash.App. 796, 816, 67 P.3d 1135 (2003). The court further held that absent exigent circumstances, the redetermination of probable cause must be made by a neutral and detached magistrate. Maddox, 116 Wash.App. at 817,67 P.3d 1135. Maddox contends this rule places too much responsibility on the police for deciding when to return to the magistrate for a redetermination of probable cause, thus subverting the constitutional requirement of oversight by a detached and neutral magistrate. We disagree and affirm the well-reasoned opinion of the Court of Appeals.

Maddox proposes that a neutral magistrate must reconsider probable cause when any material evidence is discovered. This goes too far and would require too many unnecessary reviews by a magistrate. There is no reason for police to return to the magistrate unless probable cause is negated. In addition, Maddox's proposed approach fails to provide enforcement officers with guidance in determining what facts are significant enough to demand review by the issuing magistrate. Rather, the test we adopt strikes the proper balance. It ensures that a neutral magistrate redetermines the existence of probable cause when relevant, and as additional information becomes available during the course of the criminal investigation. It requires that the newly discovered information be considered as true for purposes of deciding whether probable cause must be redetermined, thus limiting the police officer's...