State v. Mickle
| Decision Date | 20 December 1988 |
| Docket Number | No. 9056-6-III,9056-6-III |
| Citation | 53 Wn.App. 39,765 P.2d 331 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Ronald Helmer MICKLE, Appellant. |
Harry E. Ries, Ries & Kenison, Moses Lake, for appellant.
Peter G. Wales, Deputy Prosecutor, Ephrata, for respondent.
*
Ronald H. Mickle was found guilty upon stipulated facts of possession with intent to manufacture or deliver marijuana. The only issue on appeal is the legality of the search warrant. We reverse.
A citizen informant called the Grant County Sheriff's Department on July 26, 1987, at approximately 10 p.m., and advised he/she had been in a farm house owned by Mr. Mickle within 7 days prior to July 27, 1987. The informant further stated that while in the house, he/she observed grow pots with harvested stalks, a bowl with marijuana leaves, a smell of marijuana, the sound of blowers or fans in the bedrooms, and light coming through the doors of the bedrooms.
On July 29, 1987, a search warrant obtained on the basis of the informant's tip was executed by the sheriff's office on Mr. Mickle's house located on the Mickle farm at East Southwest Royal Slope, Grant County. Mr. Mickle resided in a second house directly adjacent to and within sight of the house which was searched.
According to records obtained by the sheriff's office and maintained by the Grant County Public Utility District, the electric power account was transferred to Mr. Mickle on March 11, 1987, and showed a consumption amount of a normal household even though the house was apparently vacant.
Mr. Mickle was present during the search which disclosed marijuana leaves, roots, scales, and miscellaneous grow operation equipment including fluorescent lights, a charcoal air filter, metallic polyester, plant food, starter trays, timers, soil testers, and Ziploc baggies. A fingerprint, identified as Mr. Mickle's, was found on the polyester. Mr. Mickle contends the search was illegal because there was not sufficient evidence to establish the reliability of the undisclosed citizen informant. 1
Because of concern for reliability, information received from an informant is carefully scrutinized. State v. Huft, 106 Wash.2d 206, 209, 720 P.2d 838 (1986). An affidavit based on information from a citizen informant must (1) set forth the underlying factual circumstances from which the informant makes his conclusions so that a magistrate can independently determine the reliability of the manner in which the informant acquired his information and (2) set forth facts from which the officer can conclude the informant is credible and his information reliable. 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); State v. Wolken, 103 Wash.2d 823, 827, 700 P.2d 319 (1985). Additionally, a claim of firsthand observation will not be used to overcome a credibility deficiency. State v. Jackson, 102 Wash.2d 432, 441, 688 P.2d 136 (1984). Even though the information may fail under either or both prongs, probable cause may still be established by independent police investigation. Jackson, at 438, 688 P.2d 136; Gord v. Department of Rev., 50 Wash.App. 646, 649, 749 P.2d 678 (1987). However, the investigation is not sufficient if it only corroborates innocuous facts. Huft, 106 Wash.2d at 210, 720 P.2d 838; Jackson, 102 Wash.2d at 445, 688 P.2d 136; State v. Sterling, 43 Wash.App. 846, 850, 719 P.2d 1357, review denied, 106 Wash.2d 1017 (1986). Courts have relaxed the necessary showing of reliability for a citizen informant and a citizen may be deemed reliable when his identity is revealed to the issuing magistrate. State v. Northness, 20 Wash.App. 551, 557, 582 P.2d 546 (1978). Great deference will be given to the issuing magistrate's determination of probable cause to issue a search warrant. State v. Coates, 107 Wash.2d 882, 888, 735 P.2d 64 (1987).
The affidavit in this case recites: (1) the citizen informant is a longtime resident of Grant County, (2) the citizen informant is a property owner, (3) the citizen informant has no criminal record, and (4) the citizen informant owns his/her own business. Further the citizen informant stated that he/she is familiar with marijuana because (1) the citizen informant has seen marijuana in plant growing form, (2) the citizen informant has seen marijuana in dried form, and (3) the citizen informant is familiar with the smell of marijuana.
In State v. Franklin, 49 Wash.App. 106, 107, 741 P.2d 83, review denied, 109 Wash.2d 1018 (1987) this court held reliability was not established where the affidavit stated the informant was an " 'upstanding citizen with no criminal record and whose only motive for supplying the police with ... information is to thwart a crime ...' " The State argues this affidavit states additional facts 1, 2, and 4 which were not provided in the Franklin case. Therefore, it concludes reliability has been established.
To establish the reliability of a citizen informant, and thus to fulfill the second prong of the Aguilar test, it is only necessary for the police to interview the informant and ascertain such background facts as would support a reasonable inference that he is "prudent" or credible, and without motive to falsify.
State v. Chatmon, 9 Wash.App. 741, 748, 515 P.2d 530 (1973) (citing United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971)).
The informant here falls into the second category of informants identified in Northness, 20 Wash.App. at 555, 582 P.2d 546: a citizen informant whose identity is known to the police but not revealed to the magistrate. Although the courts have relaxed the necessary showing of reliability when a citizen informant furnishes information, that information must still support an inference he or she is telling the truth. Franklin, 49 Wash.App. at 109, 741 P.2d 83.
Here, there was nothing in the affidavit explaining why the informant was in the farm house or why he/she wished to remain unnamed. Additionally, the facts used to establish the informant's credibility were not related to the issue of credibility. Even...
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State v. Hankins
... ... officer's own generic conclusions about the informant ... See State v. Wilke , 55 Wn.App. 470, 477-78, 778 P.2d ... 1054 (1989) (discussing State v. Payne , 54 Wn.App ... 240, 773 P.2d 122 (1989) (reliability established); State ... v. Mickle , 53 Wn.App. 39, 765 P.2d 331 (1988) ... (reliability not established); State v. Franklin , 49 ... Wn.App. 106, 112, 741 P.2d 83 (1987) (reliability not ... established); State v. Berlin , 46 Wn.App. 587, 731 ... P.2d 548 (1987) (reliability established)). But in ... ...
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State v. Hankins, No. 35604-0-II (Wash. App. 1/8/2008), 35604-0-II
...477-78, 778 P.2d 1054 (1989) (discussing State v. Payne, 54 Wn. App. 240, 773 P.2d 122 (1989) (reliability established); State v. Mickle, 53 Wn. App. 39, 765 P.2d 331 (1988) (reliability not established); State v. Franklin, 49 Wn. App. 106, 112, 741 P.2d 83 (1987) (reliability not establish......
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U.S. v. Bynum
...cause to search the person's home or personal effects solely because that individual has a criminal record."); State v. Mickle, 53 Wash.App. 39, 765 P.2d 331, 334 (1989) (holding that police knowledge that defendant had "grown marijuana in the past" was inadequate corroboration because "it ......
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State v. Bauer
...and the reason for his desire to remain anonymous." State v. Chatmon, 9 Wash.App. 741, 748, 515 P.2d 530 (1973). In State v. Mickle, 53 Wash.App. 39, 765 P.2d 331 (1988), the police used information obtained from an undisclosed citizen informant to get a search warrant. The affidavit recite......