State v. Mejia

• Decision Date: 19 January 1989
• Docket Number: No. 55190-1,55190-1
• Citation: 766 P.2d 454,111 Wn.2d 892
• Parties: STATE of Washington, Respondent, v. Genoveva MEJIA and Salomon V. Preciado, Appellants.
• Court: Washington Supreme Court

Page 892

111 Wn.2d 892

766 P.2d 454

STATE of Washington, Respondent, v. Genoveva MEJIA and Salomon V. Preciado, Appellants.

No. 55190-1.

Supreme Court of Washington En Banc.

Jan. 19, 1989.

McArdle, Dohn, Talbott & Simpson, P.S., Jerry D. Talbott, Yakima, for appellant Mejia.

Prediletto, Halpin, Cannon & Scharnikow, P.S., Thomas Bothwell, Yakima, for appellant Preciado.

Jeffrey C. Sullivan, Yakima County Prosecutor, Michael G. McCarthy, Deputy Yakima County Prosecutor, Yakima, for respondent.

CALLOW, Chief Justice.

Defendants Preciado and Mejia challenge the sufficiency of a search warrant which was based on information given by an unidentified "middleman" to a police informant. Defendant Preciado also challenges the imposition of a thirty month sentence as outside the presumptive range and clearly excessive.

We affirm the trial court. We hold that the affidavit's description of the middleman's actions established probable cause, and that the large amount of the cocaine seized warranted the imposition of an exceptional sentence.

On January 28, 1987, a Yakima County District Court Judge issued a search warrant based on the following:

On January 8, 1987, your affiant used a confidential reliable informant to establish contact with a middleman to arrange a purchase of cocaine. These two parties will henceforth be described as "informant" and "middleman". Your affiant believes that the confidential informant is reliable for the following reasons: Informant has been known to your affiant for SIX months. He has completed FOUR controlled buys under your affiant's direction and supervision, in each instance purchasing controlled substances. Further, informant has been given information regarding drug trafficking which has been verified through other investigations conducted by the City-County Narcotics Unit. Informant has never provided your affiant with information which has been found to be false.

On January 8, 1987, informant and middleman met at a pre-arranged location to initiate a drug transaction, i.e., informant to purchase cocaine by and through middleman. The informant's person and vehicle had been searched prior to this meeting and no controlled substances were found. Additionally, the informant was provided with $200.00 (serial numbers recorded) with which to purchase an eight-ball ( 1/8 ounce) of cocaine.

Your affiant, along with other members of the City/County Narcotics Unit, surveilled the middleman as he traveled by automobile from the meeting at the prearranged location. Additionally, the informant was kept under surveillance and no one contacted the informant during the middleman's absence.

Middleman, after leaving the pre-arranged location, drove directly to the residence above described and entered the residence without stopping. After leaving the residence, he returned directly to the pre-arranged location where middleman recontacted informant. After middleman left the area, your affiant recontacted informant who related the following: Middleman had told informant that he could obtain large quantities of cocaine, from a particular source, at the price of $200.00/one-eighth ounce, which is in your affiant's knowledge well below the normal street price. Additionally, middleman took the $200.00 from informant and told informant that he was going to his source and to wait at the pre-arranged location, because middleman would be back shortly with the cocaine. That middleman left with the money and upon return, middleman delivered an eighth of an ounce of cocaine to informant. This substance was turned over to your affiant and field tested positive for cocaine.

Your affiant thereafter arranged another controlled buy of cocaine, by informant from middleman. The scenario above described was again followed, said purchase occurring on January 27, 1987. Again, informant and vehicle were searched prior to meeting with middleman and informant was provided with $200.00 to purchase cocaine. The informant and middleman met at the pre-arranged location, middleman left and proceeded directly, without stopping, to the above-described residence. Both parties were surveilled by members of the Narcotics Unit. During middleman's absence, informant had no contact with anyone. Middleman left the residence, entered his vehicle, drove directly back to the pre-arranged location, met again with informant and they then parted company.

Your affiant immediately thereafter contacted informant and informant turned over to affiant an eighth of an ounce of white powder which tested positive for cocaine. Informant also advised your affiant of the following: Middleman took the $200.00 from the informant and told informant to wait, that he would be back directly with the cocaine from his supplier. Further, middleman said that he brought so much business to the supplier (in the manner he was bringing the informant's business to the supplier) that the supplier had given him (middleman) a quantity of cocaine as a bonus. Middleman thereafter snorted the cocaine in front of the informant. (Affiant, surveilling the meeting had observed middleman assume a position consistent with snorting cocaine.) Further, middleman told informant that the supplier had so much cocaine that the supplier utilized a fruit-picking bucket in breaking large pieces into powder.

The police discovered a pound and a half of cocaine, which was the largest quantity seized in Yakima County to that date. The police subsequently arrested the couple occupying the house--defendants Preciado (husband) and Mejia (wife).

The defendants' motions to suppress were denied and both were convicted of possession of cocaine with intent to deliver. Defendant Mejia was sentenced to 13 months, within the presumptive range. Because of the extraordinary amount of cocaine seized, the defendant Preciado was sentenced to an exceptional term of 30 months. Both defendants appealed.

I

We first consider the validity of the search warrant in relation to the involvement of a "middleman". An affidavit of probable cause which supports the issuance of the search warrant must set forth facts which establish an informant's veracity and basis of knowledge. State v. Gunwall, 106 Wash.2d 54, 70, 720 P.2d 808 (1986); State v. Jackson, 102 Wash.2d 432, 433, 688 P.2d 136 (1984); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The veracity prong requires the magistrate to determine whether the informant has truthfully related the facts. Gunwall, 106 Wash.2d at 70-71, 720 P.2d 808; Jackson, 102 Wash.2d at 437, 688 P.2d 136. The basis-of- knowledge prong requires the magistrate to determine whether the informant has personal knowledge of the facts. Gunwall, 106 Wash.2d at 70-71, 720 P.2d 808; Jackson, 102 Wash.2d at 437, 688 P.2d 136. Only after the magistrate is satisfied as to both the truthfulness of the informant and that the informant knows what he is talking about can the magistrate determine whether the facts support the conclusion that there is probable cause to believe that criminal conduct may have occurred. Gunwall, 106 Wash.2d at 73, 720 P.2d 808.

The affidavit in this case satisfies both prongs of the Aguilar- Spinelli test as to the informant. The recitation of the informant's previous record establishes the informant's veracity. State v. Fisher, 96 Wash.2d 962, 965, 639 P.2d 743, cert. denied 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1355 (1982). The affidavit itself indicates that the informant spoke from personal knowledge as to the things the middleman said and did. However, the informant did not purport to have personal knowledge whether the facts communicated by the middleman were true.

The affidavit indicates that the middleman "communicated" facts in two different ways. First, the middleman made statements to the informant which the informant related to the police. For example, the middleman told the informant that "the supplier had so much cocaine that the supplier utilized a fruit-picking bucket in breaking large pieces of cocaine into powder." The magistrate would have had to have been satisfied as to the middleman's veracity and basis of knowledge had the middleman told this directly to the police and assumed the role of a direct informant himself. See Gunwall, 106 Wash.2d at 71, 720 P.2d 808. Since these words were the words of the unknown middleman and only relayed to the police through the informant, special attention must be paid to the middleman's involvement to ensure his reliability. See 1 W. La Fave, Search and Seizure § 3.3(d) (2d ed. 1987). Therefore, the Aguilar- Spinelli test applies to the middleman's statements. Compare Gunwall, at 71, 720 P.2d 808.

However, the middleman also "communicated" some facts to the police by his conduct. The middleman did not hand over the cocaine when he took the informant's money. Rather, the police watched him leave the meeting site, travel directly to the house in question, travel back to the informant, and only then give the informant cocaine. Thus, the middleman's actions indicated to the police that the house ultimately searched contained cocaine. Reasonableness and common sense are key ingredients in discovering the absence or presence of probable cause. State v. Gunwall, supra.

Previous Washington cases have left an unclear trail on similar factual patterns. In each case, an informant or undercover officer met with a middleman and negotiated the purchase of drugs. The police observed the middleman travel from the purchase site, observed him enter and exit a residence, and then followed him back to the informant or undercover officer, at which time the middleman consummated the drug transaction. All the cases use Aguilar- Spinelli to analyze the middleman's statements. However, the cases differ as to whether the test also applies to the middleman's conduct.

The first case to consider the issue, State v....