State v. Myers

• Decision Date: 05 September 1991
• Docket Number: No. 57751-0,57751-0
• Citation: 815 P.2d 761,117 Wn.2d 332
• Parties: The STATE of Washington, Respondent, v. Wayne P. MYERS, Appellant.
• Court: Washington Supreme Court

Page 332

117 Wn.2d 332

815 P.2d 761

The STATE of Washington, Respondent, v. Wayne P. MYERS, Appellant.

No. 57751-0.

Supreme Court of Washington En Banc.

Sept. 5, 1991.

Larry C. Stephenson, Kennewick, for appellant

Andrew K. Miller, Benton County Pros. Atty., Jeffrey L. Finney, Deputy Benton County Pros. Atty., Kennewick, for respondent.

DORE, Chief Justice.

Myers challenges his conviction of possession of a controlled substance with intent to deliver. We

                hold that evidence seized pursuant to a telephonic warrant must be suppressed when the failure to record sworn statements deprives the appellate court of a record sufficient to review the magistrate's probable cause determination.   We reverse
                

FACTS

The Kennewick police received an anonymous tip that Wayne Myers sold drugs from his home. On May 21, 1990, police Officers Hiles and Laschied went to Myers's home. The uniformed officers walked to the front porch, knocked on the door, and identified themselves. The officers smelled marijuana when Myers opened the door. Before the officers spoke with Myers, they read him his Miranda rights.

Hiles told Myers that they received a tip that he was dealing in narcotics and asked if he and his partner could search the house. From where he stood on the porch, Hiles could see a cigarette-rolling machine in the house.

Myers told the police he wanted to go get some Alka-Seltzer. Hiles expressed concern that there might be weapons in the house and asked if he could accompany him. Myers turned, "kind of motioned," and said "come on in" or a similar response that the officers believed expressed consent. The officers entered the house, walked with Myers to the kitchen, and walked back to the front door. Walking through the house, the officers saw a marijuana cigarette, cigarette papers, and a "roach" clip.

At the front door, Hiles again asked if he could search the house. Myers denied permission and stated that "the book" required that the police get a warrant. Myers denied Hiles permission to search the house which precipitated Hiles to seek a search warrant. Hiles then arrested Myers for possession of marijuana and drug paraphernalia.

Hiles had recording equipment sent to the house, set up the equipment, tested it, and then called Judge Staples The day after the search, Officer Hiles learned that the tape of his conversation with Judge Staples either was erased or was never recorded. Officer Hiles then wrote down what he recalled of the events the preceding day.

                seeking a warrant.   Hiles told the judge 1 why they were at Myers' house and what they observed.   Hiles advised the judge that a neighbor of Myers said he did Myers' yard work and that he knew what cocaine looked like, and that he saw people leave Myers' house with such a drug.   Hiles told the judge they were invited into Myers' home.   Hiles recalled asking permission to search the premises and that the judge authorized him to sign a search warrant that allowed police to search Myers' premises.   The warrant authorized the officers to seize "all controlled substances," "any papers, documents or other matter tending to establish the identity of persons exercising ... control over ... controlled substances found" in Myers' house, and "all other evidence ... of violation of the Uniform Controlled Substance Act."   Brief of Defendant App.  A.  The police searched the house and seized numerous items including drugs, materials for weighing and packaging drugs, and an accounts book
                

The State then charged Myers with possession of a controlled substance with intent to deliver. Myers moved to suppress the evidence seized at his home because the police did not comply with CrR 2.3 and the search violated his Fourth Amendment rights. At the suppression hearing, on September 1, 1990, Officers Hiles and Laschied testified as summarized above.

Judge Staples testified that he did not have independent recollection of the events on May 21, 1990. He repeatedly expressed concern that what he believed was independent recollection of the events, in fact, was his The court found that CrR 2.3(c) required a recording be made when an officer obtained a telephonic warrant "to afford the public the protection of ... a record to review for probable cause." Clerk's Papers, at 12; Verbatim Report of Proceedings, at 64. Based on the testimony of Judge Staples, the trial court refused to suppress the evidence seized at Myers' house. It concluded that the testimony of Officers Hiles and Laschied about the phone call to Judge Staples constituted a record of the probable cause determination. The court convicted Myers of possession of a controlled substance with intent to deliver.

                recollection of witnesses' testimony about the events, offered at other hearings in the case.   The judge remembered receiving the call for a warrant and authorizing the warrant.   He also remembered that the officer he spoke with "had gone into the house to talk with the person and ... said he found something."   Verbatim Report of Proceedings, at 11-13.   Judge Staples did not recall swearing Hiles in, the officer's or defendant's name, the details of the search, or the details based upon which he determined that probable cause existed to search Myers' property
                

Myers appealed his conviction alleging error by the court when it did not suppress the evidence seized in the defendant's home. The Court of Appeals certified the following question to this court:

Whether the court erred in failing to suppress evidence obtained pursuant to a telephonic search warrant when the telephone affidavit for the warrant was either not recorded or [was] erased prior to transcription or may the officer testify as to what was said during the telephone conversation to establish probable cause for issuance of the warrant?

ANALYSIS

Myers alleges that reconstructing the affidavit upon which the search warrant was issued and admitting evidence seized pursuant to the reconstructed telephonic warrant violates the fourth amendment to the federal The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath ... particularly describing the place to be searched and the persons or things to be seized.

                Constitution and Article 1, section 7 of the State Constitution.   The Fourth Amendment provides that
                

article 1, section 7, of our State Constitution, which offers greater protection of individual rights than the Fourth Amendment, provides that:

No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

See State v. Gunwall, 106 Wash.2d 54, 65, 720 P.2d 808, 76 A.L.R.4th 517 (1986). Both the Fourth Amendment and article 1, section 7 of our State Constitution render warrantless searches per se unreasonable unless they fall within "a few specifically established and well-delineated exceptions." State v. Chrisman, 100 Wash.2d 814, 817, 676 P.2d 419 (1984). Both constitutional provisions require that all facts establishing probable cause to search be presented while under oath, to a neutral magistrate, for impartial review and that the magistrate make the crucial probable cause determination. State v. Neslund, 103 Wash.2d 79, 84, 690 P.2d 1153 (1984); United States v. Anderson, 453 F.2d 174, 176 (9th Cir.1971).

Superior Court Criminal Rule 2.3 governs issuance of warrants within constitutional limits in Washington. See State v. Fields, 85 Wash.2d 126, 128-29, 530 P.2d 284 (1975). CrR 2.3(c) states that:

There must be an affidavit ... sworn testimony establishing the grounds for issuing the warrant. The sworn testimony may be an electronically recorded telephonic statement. The recording or a duplication of the recording shall be a part of the court record and shall be transcribed if requested by a party if there is a challenge to the validity of the warrant or if ordered by the court.

Myers alleges that the plain language of CrR 2.3 requires electronic recordings of oral statements be contemporaneous, and that the State cannot reconstruct recordings with later testimony. When the language of a rule is clear and unambiguous, there is no room for judicial construction. Hines v. Data Line Sys. Inc., 114 Wash.2d 127, 143, 787 P.2d 8 (1990). The text of CrR 2.3 does not unambiguously state that telephonic statements must be made contemporaneously. Principles of statutory construction, therefore, govern our construction of the rule. State v. Hutchinson, 111 Wash.2d 872, 877, 766 P.2d 447 (1989).

This court, as the author of CrR 2.3, is in the best position to determine the meaning of the rule. Heinemann v. Whitman Cy., 105 Wash.2d 796, 802, 718 P.2d 789 (1986). We give the words in the court rules their plain and ordinary meaning. Heinemann. The word "may," in the phrase "[t]he sworn testimony may be ... electronically recorded", refers to the antecedent term "sworn testimony". See Boeing Co. v. Department of Licensing, 103 Wash.2d 581, 587, 693 P.2d 104 (1985). The permissive term "may" ² suggests that other means of originally memorializing sworn testimony, such as written notes of the magistrate, are available to the State. See State v. Liberti, 161 N.J.Super. 575, 392 A.2d 169 (1978). The term "may" does not, however, allow the State to substitute a reconstruction of an entire telephonic affidavit where no original recording of the statements exists.

The State's contention that the testimony at the suppression hearing constituted a "duplicate of the recording" under CrR 2.3 is unpersuasive. Webster's Third New International Dictionary 702 (1986) defines a "duplicate" as "two corresponding or identical parts ... being exactly the same as one or more others of its kind ... either of two things that exactly ... correspond to each other ...". The testimony offered at the suppression hearing was not a "duplicate" because no original...