State v. Malbeck

• Decision Date: 03 November 1966
• Docket Number: No. 38653,38653
• Citation: 69 Wn.2d 695,419 P.2d 805
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. William MALBECK, Appellant.

Page 695

69 Wn.2d 695

419 P.2d 805

The STATE of Washington, Respondent, v. William MALBECK, Appellant.

No. 38653.

Supreme Court of Washington, Department 2.

Nov. 3, 1966.

Young, Hoff & Regan, Victor V. Hoff, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Seattle, David W. Soukup, Deputy Pros. Atty., for respondent.

POYHONEN, Judge. ^*

Appellant was charged by information with the crime of grand larceny by possession of property of a value in excess of $75 belonging to James R. Hughes, with knowledge that the property had been stolen. RCW 9.54.010(5). At the trial appellant did not testify or offer any defense. Following a jury verdict of guilty, he was sentenced to not more than 15 years. Appeal followed.

One of appellant's three assignments of error is that the trial court erred in denying a motion to suppress evidence based on the contention that a search warrant was unlawfully and improperly issued.

The trial court found that when Deputy Sheriff Randall, on June 17, 1965, applied to a justice of the peace for a warrant to search appellant's rented apartment unit, he was possessed of the following information:

1. That entry had been made on June 14, 1965, into premises occupied by one James R. Hughes at 119 S.W. 148th, Seattle, in the Burien area, by forcing open a door;

2. That in the burglary certain items of personal property were reported to have been taken: Kenwood KT--10 stereo tuner, German made hunting knife, 21-inch Packard Bell television set, Sunbeam toaster, deep fryer, large white ash tray, Webcor four-speed record player, six record albums, Camfield automatic coffee pot, Crossman air pistol, pump action pellet gun, Sears Roebuck credit cards, personalized bank checks of James R. Hughes;

3. That the serial number of the missing stereo tuner was 50100375;

4. That Hughes was positive that he could identify all of the stolen property;

5. That appellant was a tenant occupant of No. 5 apartment at 25040 Pacific Highway South;

6. That a reliable informant, who had previously given him truthful information regarding criminal activities, claimed to have overheard appellant say that he had the hunting knife in his possession at his apartment, and claimed to have seen the other missing items at the appellant's apartment, No. 5, 25040 Pacific Highway South on the occasion of parties held in this apartment 'that the informant was at.'

Deputy Randall presented to the justice of the peace an unsigned affidavit for a search warrant. He testified that he was sworn and was examined under oath by the justice with respect to the affidavit form's contents; that the justice read the affidavit form and then asked him questions regarding the appellant's name on the document, as to the past reliability of the informant, as to how long the officer had dealt with the informant, how he had obtained the serial number of the stereo tuner, as to the location where the stolen property was believed to be kept, and as to the informant's knowledge of the area of the burglary. He further testified that each allegation and statement contained in the unsigned affidavit form was repeated and stated under oath to the justice.

The justice executed an affidavit in part as follows:

(T)hat said Leonard Randall was then and there sworn on oath by affiant, and then and there examined by affiant with respect to the affidavit's contents and said Leonard Randall's belief that said information was true, accurate, and complete; that based on the written affidavit information and said Leonard Randall's testimony under oath, affiant found probable cause to issue a search warrant as requested;

The trial court, after offering both the prosecution and the appellant an opportunity to call the justice as a witness, which each declined, ruled that the issuance of the search warrant complied with all statutory and constitutional requirements. We agree.

A signed affidavit for a search warrant is not required. The fourth amendment to the United States Constitution requires only that warrants issue upon probable cause supported by oath or affirmation. RCW 10.79.010 requires only that the application for a search warrant be under oath and that the justice find reasonable cause for the officer's belief.

Appellant argues that, while courts have generally permitted the issuance of search warrants on the basis of hearsay statements of undisclosed informants, this violates the fourth amendment of the United States Constitution, and that the requirement of oath or affirmation is not fulfilled by hearsay only, and cites Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Aguilar does not contain such a sweeping indictment of the use of hearsay and is distinguishable from the instant case.

In Aguilar, the affidavit for search warrant stated: 'Affiants have received reliable information from a credible person and do believe that heroin * * * are being kept at the above described premises * * * *.' The facts which the informant had stated to the officer were not set forth in the affidavit. The following language from Anguilar is significant, p. 113, 84 S.Ct. p. 1513:

Here the 'mere conclusion' that petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant. The affidavit here not only 'contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,' it does not even...