State v. Northness

• Decision Date: 30 June 1978
• Docket Number: 2724-II,Nos. 2723-I,s. 2723-I
• Citation: 582 P.2d 546,20 Wn.App. 551
• Parties: The STATE of Washington, Appellant, v. Michael NORTHNESS and Casey Evanson, Respondents. The STATE of Washington, Appellant, v. Donald F. FIAS, Respondent.
• Court: Washington Court of Appeals

Page 551

20 Wn.App. 551

582 P.2d 546

The STATE of Washington, Appellant, v. Michael NORTHNESS and Casey Evanson, Respondents.

The STATE of Washington, Appellant, v. Donald F. FIAS, Respondent.

Nos. 2723-II, 2724-II.

Court of Appeals of Washington, Division 2.

June 30, 1978.

Kenneth L. Cowsert, Deputy Pros. Atty., Kelso, for appellant.

C. C. Bridgewater, Longview, for respondent Northness.

Clifford R. Kuhn, Longview, for respondent Evanson.

REED, Acting Chief Judge.

The State appeals from orders of the Cowlitz County Superior Court which suppressed evidence in two related criminal proceedings; the cases were consolidated for hearing in this court. We reverse.

In each case the defendants were charged with felony possession of marijuana. The drugs were seized pursuant to search warrants for two apartments issued on the basis of a single affidavit containing information provided by a named citizen informant, one Melissa Tennant. The affidavit reads as follows I, Edward L. Reeves, first being duly sworn on oath, depose and say: That I am a Sheriff's Deputy for the County of Cowlitz, Washington.

That on September 14, 1976 at about 3:30 PM, I was contacted by Melissa Tennant who told me that She rents the apartment, that being # 16, at 1152 17th, Longview, and that she lives there with a roommate, Janie Dirickson, who shares the apartment with Melissa. She also advised me that Don Fias lives there with Janie.

That the reason for Melissa Tennant's contact with me was to inform me that today, while she was putting some clothing in a hope chest, that was in one of the bedrooms in the apartment, after doing the laundry, She observed what she recognized to be marijuana, in processed form, in the hope chest. She related that she estimated the amount to be approximately two pounds. She indicated to me that she is familiar with marijuana and did recognize the substance in the chest to be marijuana.

That during the conversation, Melissa Tennant told me that after finding the marijuana, she had left the apartment, returning in a short time to find that the marijuana had been removed from the hope chest and placed in a black attache case located in the closet in the bedroom where the hope chest was.

That Melissa Tennant told me she then went to Apartment # 8 at 1731 Hudson to contact Don Fias and when she entered Apartment # 8 she Observed several individuals smoking cigarettes and Detected what she recognized as the odor of burning Marijuana.

That Melissa Tennant, the informant in this case, had never given your affiant information concerning violations of law before this date, but She is a local resident who initiated the contact with your affiant out of a spirit of righteousness, citizenship, and who exhibits a desire to remain law abiding and law enforcement supporting.

WHEREFORE, affiant prays that a warrant be issued directed to any peace officer of Cowlitz County, commanding him to search the premises described and seize the items listed along with the containers in which they are kept, and bring such things when found before the magistrate issuing such warrant.

(Emphasis added.)

On the basis of this affidavit, a Cowlitz County district court judge issued search warrants for both apartments mentioned therein. Execution of the warrants resulted in the recovery of marijuana from both residences. ¹

The trial court suppressed the evidence seized in the two searches, ruling that the affidavit in support of the warrants failed to recite sufficient facts to establish the credibility of the informant and thus fell short of fulfilling the second prong of the Aguilar-Spinelli test. ² Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed. 2d 637 (1969). We find, after careful consideration, that the trial court applied an improper standard in determining whether the supporting affidavit furnished probable cause to issue the warrant.

Initially we note that it is well established that probable cause for a search warrant may be based upon information provided by an informant. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); State v. Patterson, 83 Wash.2d 49, 515 P.2d 496 (1973). In such cases, however, the officer's affidavit must furnish sufficient underlying facts from which a neutral and detached magistrate could conclude that both the information and the informant are reliable. Aguilar v. Texas, supra; Spinelli v. United States, supra; State v. Patterson, supra; State v. Laursen, 14 Wash.App. 692, 544 P.2d 127 (1975).

Our research disclosed situations giving rise to questions of informant credibility the second prong of Aguilar-Spinelli usually fall into one of four following categories:

Category 1: The informant remains wholly anonymous, even to the police.

Category 2: The informant's identity is known to the police, but not revealed to the magistrate. Different rules for establishing credibility must be applied, depending upon whether the informant is (1) a "criminal" or professional informant, or (2) a private citizen.

Category 3: The informant's identity (name and address) is disclosed to the magistrate.

Category 4: The situation described in State v. Chatmon, 9 Wash.App. 741, at page 748, n. 4, 515 P.2d 530, at page 535 (1973) as follows: "Where eyewitnesses to crime summon the police, and the exigencies are such (as in the case of violent crime and the imminent possibility of escape) that ascertainment of the identity and background of the informants would be unreasonable, the 'reliability' requirement might be further relaxed. Cf. State v. Morsette, 7 Wash.App. 783, 502 P.2d 1234 (1972)."

Obviously, Melissa Tennant is a category 3 informant. We have found no Washington decisions which deal directly with the fully identified citizen informant; nor have we found a United States Supreme Court case setting forth the criteria for determining the sufficiency of an officer's affidavit to establish the credibility of such an informant. Accordingly, we have looked to other state and federal cases for guidance.

In the present instance the magistrate was provided with no evidence of Melissa Tennant's trustworthiness, such as (1) that she had provided reliable information in the past, Jones v. United States, supra; State v. Thompson, 13 Wash.App. 526, 536 P.2d 683 (1975); or (2) that Officer Reeves was familiar with the informant's background, reputation or other facts vouching for her present credibility, United States v. Harris, 403 U.S. 573, 91 S.Ct 2075, 29 L.Ed.2d 723 (1971); or (3) that her information had been independently corroborated. However, we believe there was another permissible basis on which the trial court should have found that she was a reliable informant.

Increasingly, courts have determined that a strict application of the Aguilar-Spinelli two-prong test is unwarranted where a citizen informant is involved. In United States v. Burke, 517 F.2d 377, at page 380 (2d Cir. 1975), speaking for the majority, Judge Friendly states:

(T)here has been a growing recognition that the language in Aguilar and Spinelli was addressed to the particular problem of professional informers and should not be applied in a wooden fashion to cases where the information comes from an alleged victim of or witness to a crime.

The necessity for relaxing the second prong of Aguilar-Spinelli when information is supplied by a citizen eyewitness or victim stems from the citizen's lack of opportunity to establish a record of previous reliability. United States v. Wilson, 479 F.2d 936 (7th Cir. 1973); State v. Chatmon, supra. In light of this handicap, and because present credibility is the touchstone, evidence of past reliability is no longer required in the case of a citizen informant. United States v. Harris, supra; State v. Chatmon, supra.

In Chatmon the informant was a citizen who refused to identify himself to the police. In that case, we held that the citizen's anonymity required that the police obtain additional information which would corroborate that given by the informant and support the inference that the informant was relating the truth. See also State v. Singleton, 9 Wash.App. 327, 511 P.2d 1396 (1973). Unlike the completely anonymous informants in Chatmon, Harris and Singleton (category 1 informants) Melissa Tennant identified herself to the police officers, who in turn furnished her name and address to the magistrate. This distinction has been recognized as a valid reason for relaxing the rule requiring independent evidence of credibility. "(T)he burden of satisfying the second prong of the Aguilar-Spinelli test, . . . is less stringent than in the case of an unidentified and/or professional informant." United States v. Swihart, 554 F.2d 264, 269 (6th Cir. 1977); ...