State v. Murray, 54277-5

• Decision Date: 09 June 1988
• Docket Number: No. 54277-5,54277-5
• Citation: 757 P.2d 487,110 Wn.2d 706
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. John James MURRAY, Petitioner.

Page 706

110 Wn.2d 706

757 P.2d 487

The STATE of Washington, Respondent, v. John James MURRAY, Petitioner.

No. 54277-5.

Supreme Court of Washington En Banc.

June 9, 1988.

John L. Farra, Aberdeen, for petitioner.

Michael G. Spencer, Grays Harbor County Prosecutor, William P. Gilbert, Harold S. Menefee, Deputy County Prosecutors, Montesano, for respondent.

Seth R. Dawson, Snohomish County Prosecutor, Seth Aaron Fine, Deputy County Prosecutor, Everett, amicus curiae for respondent.

Dennis Benjamin, Seattle, on behalf of Washington Appellate Defender Ass'n, amicus curiae for petitioner.

DURHAM, Justice.

In July 1984, Grays Harbor County police discovered over 100 marijuana plants as well as lights, soil, fertilizer and other marijuana growing paraphernalia in the basement of a house in Montesano, Washington, apparently belonging to defendant John Murray's grandmother. On the strength of this evidence, the Grays Harbor prosecutor filed an information charging Murray with manufacturing marijuana and possessing it with intent to deliver, in violation of the Uniform Controlled Substances Act, RCW 69.50.401. The prosecutor asserted these same charges in a petition to revoke Murray's probation for a 1983 marijuana offense.

At issue here is the validity of the warrant pursuant to which police searched the Montesano residence. On Murray's motion, Judge John H. Kirkwood, presiding in the criminal case, ruled the search warrant invalid and ordered the evidence obtained from the search suppressed. While the State's appeal of that order was pending in the Court of Appeals, Judge Robert L. Charette denied Murray's motion to suppress in the probation revocation proceeding. Murray's appeal of Judge Charette's ruling was consolidated with the State's appeal in the criminal case.

The Court of Appeals affirmed both rulings in an unpublished opinion. State v. Murray, noted at 48 Wash.App. 1070 (1987). The court agreed with Judge Kirkwood that the search warrant was not supported by probable cause and upheld his suppression order in the criminal case. Notwithstanding that it believed the warrant to be invalid, however, the court held that the evidence obtained from the search would be admissible in the probation revocation proceeding. Both parties petitioned for review.

I

The Court of Appeals opinion touches on a matter of substantial import to the law of search and seizure in this state. This is the extent to which the exclusionary rule of Const. art. 1, § 7 exists and functions independently of the remedy of exclusion courts apply when the government violates citizens' rights under the Fourth Amendment to the United States Constitution. In the context presented here, cases from the Courts of Appeals are divided over this question. Following federal precedents, the courts in State v. Kuhn, 7 Wash.App. 190, 499 P.2d 49, aff'd on other grounds 81 Wash.2d 648, 503 P.2d 1061 (1972), State v. Simms, 10 Wash.App. 75, 79-80, 516 P.2d 1088 (1973) (dicta), review denied, 83 Wash.2d 1007 (1974), and State v. Proctor, 16 Wash.App. 865, 867, 559 P.2d 1363, review denied, 89 Wash.2d 1007 (1977), held or stated in dicta that the exclusionary rule should not apply in probation revocation proceedings. In State v. Lampman, 45 Wash.App. 228, 232, 724 P.2d 1092 (1986), however, the court declared that "article 1, section 7 requires application of the exclusionary rule, without exception, to probation revocation proceedings."

This division reflects a broad interpretive uncertainty that exists about the nature of the article 1, section 7 exclusionary rule. Some dicta have issued from this court in favor of an absolute rule of exclusion when evidence is obtained in a manner violative of article 1, section 7 rights. State v. White, 97 Wash.2d 92, 111, 640 P.2d 1061 (1982); State v. Bonds, 98 Wash.2d 1, 11, 653 P.2d 1024 (1982). Yet we have never firmly relied on these dicta as a basis for a suppression order. Moreover, we have not had occasion to test these dicta against recently articulated principles of constitutional analysis, according to which our interpretations of state constitutional provisions are to be guided by well reasoned federal law precedents. See State v. Gunwall, 106 Wash.2d 54, 60-61, 720 P.2d 808 (1986); State v. Berber, 48 Wash.App. 583, 740 P.2d 863, review denied, 109 Wash.2d 1014 (1987).

We granted review in this case to address these issues and to resolve some of the uncertainties which attend them. As it turns out, however, the resolution of this case does not require any consideration of the exclusionary rule, state or federal. We find that the search warrant was valid and, thus, that the search of the Montesano house did not violate Murray's constitutional rights.

II

When adjudging the validity of a search warrant, we consider only the information that was brought to the attention of the issuing judge or magistrate at the time the warrant was requested. See, e.g., Whiteley v. Warden, 401 U.S. 560, 565 n. 8, 91 S.Ct. 1031, 1035 n. 8, 28 L.Ed.2d 306 (1971); Spinelli v. United States, 393 U.S. 410, 413 n. 3, 89 S.Ct. 584, 587 n. 3, 21 L.Ed.2d 637 (1969). From the record, it appears that this includes only those facts stated in the "AFFIDAVIT FOR SEARCH WARRANT" submitted by Detective Bill Stocks, a Grays Harbor County drug enforcement officer.

According to his affidavit, Detective Stocks heard from an informant, who had heard from a friend (hereinafter referred to as "tipster"), about Murray's involvement in marijuana growing. The tipster reported seeing large marijuana plants in the basement of the Montesano house, being cultivated under artificial "grow lights". The tipster said also that Murray told him the grow operation produced a monthly cash crop of marijuana.

The affidavit attests to the informant's credibility, but contains no information about the credibility of the tipster. It does, however, describe evidence corroborating the tipster's information that Detective Stocks obtained through his own investigation. First, electricity consumption data for the Montesano house obtained from the Public Utility Department showed an average monthly use over the previous 4 to 6 months of 5,000 to 6,000 kilowatt hours, which, Detective Stocks learned, was about double the average monthly consumption rate for a house of similar age and square footage occupied by a single elderly person. High electricity consumption is common to marijuana grow operations, the affidavit states, "to power the lighting and ventilation necessary to conduct proper cultivation."

Second, Detective Stocks heard "what sounds like an electric exhaust fan" operating in the basement at 11 p.m. He saw no steam escaping from the basement, however. According to the affidavit, "[t]his is inconsistent with the normal use of a bathroom or exhaust fan while bathing or showering."

Third, by means of an infrared viewing device, Detective Stocks observed that [u]nlike the typical residence, the concentration of heat in this residence is located in the basement area. The concentration of heat is extreme ... I also observed extraordinary amounts of heat escaping from the vicinity of what I believed to be the bathroom exhaust fan.... [T]he high heat generated by these lights in growing marijuana is consistent with the heat I observed within this residence.

Detective Stocks indicated also that because he observed no visible lighting in the basement, he believed that the basement windows had been sealed to hide the goings-on within.

Finally, Detective Stocks confirmed the accuracy of the description of the Montesano house provided by the tipster and learned from other officers that Murray had been observed at the residence.

III

The validity of a search warrant depends on the existence of "probable cause". As we have interpreted Const. art. 1, § 7, that provision forbids police searches of private homes except when probable cause exists and a warrant has issued. See, e.g., State v. Huft, 106 Wash.2d 206, 209, 720 P.2d 838 (1986). When police suspicions of illegal activity originate in an informant's tip, probable cause is tested against the standards described in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The "Aguilar-Spinelli test" holds that probable cause will exist only if the informant's basis of knowledge and veracity has been demonstrated or if the substance of the tip has been verified by independent investigation. Huft, 106 Wash.2d at 209-10, 720 P.2d 838; State v. Jackson, 102 Wash.2d 432, 436-38, 688 P.2d 136 (1984).

Here, the basis of knowledge prong is readily satisfied by the tipster's claim that he personally observed marijuana growing in the basement of the Montesano house. The affidavit for search warrant says nothing about the tipster's veracity, however. Thus, probable cause cannot be said to exist unless the deficiency in the veracity prong of Aguilar-Spinelli is compensated for by the corroborating evidence obtained through independent police investigation.

Corroborating evidence offered to remedy a deficiency in either prong of the Aguilar-Spinelli test "should point to suspicious activities or indications of criminal activity along the lines suggested by the informant." Huft, 106 Wash.2d at 210, 720 P.2d 838. "Merely verifying 'innocuous details', commonly known facts or easily predictable events should not suffice to remedy a deficiency in either the basis of knowledge or veracity prong." Jackson, 102 Wash.2d at 438, 688 P.2d 136. Probable cause exists, moreover, only if the tip, as corroborated, "is as trustworthy as a tip which would pass [the Aguilar-Spinelli test] without independent corroboration". Spinelli, 393 U.S. at 415, 89 S.Ct. at 588; see Jackson, 102 Wash.2d at 446, 688 P.2d 136.

Applying these principles to the facts stated above, we conclude that the independently discovered information described...