State v. Patterson

• Decision Date: 01 November 1973
• Docket Number: No. 42276,42276
• Citation: 83 Wn.2d 49,515 P.2d 496
• Parties: STATE of Washington, Petitioner, v. Jesse PATTERSON and Don Richard Morgan, Respondents.
• Court: Washington Supreme Court

Page 49

83 Wn.2d 49

515 P.2d 496

STATE of Washington, Petitioner, v. Jesse PATTERSON and Don Richard Morgan, Respondents.

No. 42276.

Supreme Court of Washington, En Banc.

Nov. 1, 1973.

Rehearing Denied Feb. 13, 1974.

Donald C. Brockett, Pros. Atty., Fred J. Caruso, Spokane, for appellant.

R. Max Etter, Spokane, for respondents.

HALE, Chief Justice.

While executing a search warrant, Spokane police officers found two capsules of heroin on the searched premises, and one capsule of heroin on the person of defendant Jesse Patterson. They also found what the parties describe as 'miscellaneous narcotics paraphernalia, and miscellaneous papers and pieces of identification' apparently connecting the defendants with the premises.

Seizing the narcotics and other articles, the officers arrested defendants Jesse Patterson and Donald Richard Morgan at the scene of the search, and the prosecuting attorney filed a complaint against them in Spokane County District Court. August 5, 1971, the prosecuting attorney superseded the District Court complaint by filing an information in Superior Court charging Patterson and Morgan with unlawful possession of the narcotic drug, hereoin.

Defendants moved ot quash the search warrant and suppress the evidence seized in the search. The motion came on for hearing at the call of the regular weekly motion docket of the Superior Court for Spokane County before Judge George T. Shields who denied the motion October 15, 1971. Thereupon, the case was assigned for trial before Judge William H. Williams, to whom defendants renewed their motion to quash and suppress. Following extensive argument, the learned trial judge, concluding that the affidavit supporting the search warrant was legally insufficient because it failed adequately to set forth a probable cause for its issuance, granted the motion to quash and ordered the evidence obtained in the search suppressed. The state, by alternative writ of certiorari, now seeks an order vacating the Superior Court's order quashing the search warrant and suppressing the evidence.

The search warrant, issued October 22, 1970, from 'The Justice Court of the State of Washington In and For the County and District of Spokane' bore the signature of Gordon S. Lower, District Court Judge. There is no contention that Judge Lower was not a legally constituted and duly qualified and acting judicial officer, possessing all constitutional and statutory powers requisite to the issuance of warrants for search, seizure and arrest. The search warrant recited that one James R. Albright had made complaint on oath to Judge Lower; that the complainant believed that narcotics and dangerous drugs were being unlawfully used, manufactured, sold, given away, furnished and kept on the premises of 613 South Sheridan Street, Spokane; and that the judge found reasonable and probable cause to believe the recited facts to be true. The warrant ordered peace officers to enter the premises of 613 South Sheridan Street in Spokane, and diligently search for and seize all narcotic and dangerous drugs and 'furniture and fixtures used or kept for the illegal manufacture, sale, barter, exchange, giving away, furnishing or otherwise disposing' of narcotics and dangerous drugs, and to make a return to the issuing court within 3 days showing all acts done and things seized pursuant to it.

We have accepted review largely because two judges of the Superior Court on diverging views, in considering the sufficiency of the complaint or affidavit for the search warrant, reached differing conclusions.

The question, therefore, is whether the warrant was issued in violation of either the Fourth Amendment:

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 or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

or article 1, section 7 of the state constitution which states:

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

More precisely, our function, therefore, after considering all of the information and the manner and form in which it was presented to the judge of the District Court, is whether that court had probable cause under the constitutions to issue the warrant. A secondary but inherent question is to what extent may hearsay evidence be included in the complaint affidavit or testimony upon which the warrant is sought.

Reasonableness is the key ingredient in the test for issuance of a search warrant. That is precisely what the federal constitution says and our state constitution necessarily implies. Do the documents or testimony supporting the warrant give a fair-minded, independent judicial officer, on considering all of the facts and circumstances set before him on oath or affirmation, good reason to issue the warrant?

Good reason for the issuance of a search warrant does not necessarily mean proof of criminal activity but merely probable cause to believe it may have occurred. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Suspicion, belief and guess alone are not enough. If the affidavit contains none of the underlying facts or circumstances from which the magistrate can find probable cause and is no more than a declaration of suspicion and belief, it is legally insufficient. Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933). And, if the statements of an informant are included in the affidavit or complaint for the search warrant, probable cause means that the issuing magistrate should have before him a substantial and intelligent basis for crediting the report of the informant.

Where the informant's identity is unrevealed, the supporting documents or testimony must provide the issuing court with a stronger basis for finding the hearsay statements credible than if the informant is identified. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). In either case, whether of revealed or unrevealed informants, the affidavits or complaint must go beyond mere conclusions that illegal activities are or have been going on in the premises to be searched (Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)); and mere assertions that the applicant for the warrant harbors a suspicion or belief that articles relevant to prove such activity will be found there are insufficient. Giordenello v. United States, 357 U.S. 480 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Nathanson v. United States, Supra. But the issuance of a search warrant is and always has been a matter of judicial discretion, the exercise of which may be tested on review. The ultimate question on review is whether, in discharging his duties, the judicial officer who issued the search warrant abused his discretionary powers.

Does this record show that the judge of the District Court authorized an unreasonable search as that term is meant under the constitution? We think not. When an application for a search warrant is made to a judicial officer, he is obliged neither to treat the matter as an adversary proceeding, nor sua sponte to challenge the contents of the supporting documents. His is the duty to ascertain whether the warrant sought is being reasonably requested and on reasonable grounds. At that juncture, the judge is not dealing with such concepts as reasonable doubt, preponderance of the evidence, the competence of the witnesses or defendant's rights to confrontation and cross-examination of witnesses, nor should the judge invoke other concepts of due process inherent in the Bill of Rights or the common law other than those necessarily included in the idea of reasonableness of the search. Such inquiries, if undertaken at the proceeding for the issuance of a warrant, would be premature and not only premature, but in the ordinary course of administering the criminal law would stifle legitimate investigative procedures legitimately to be carried out.

To render the people secure in their persons, houses, papers and effects and keep the police from disturbing them within the admonition of the Fourth Amendment and the search provisions of the state constitution, does not mean, therefore, that the application for a search warrant be converted into an adversary proceeding, or one held upon notice, or that a contest must first be arranged and then resolved. It is now, as it always has been, an exparte proceeding. The record of the application hearing, however, must show that the search and seizure ultimately to be authorized not only appeared to be reasonable to the issuing judge, but that it turned out to be so upon execution of the warrant. Accordingly, when the constitutions specify that no warrant may issue except upon probable cause and that the probable cause must be shown in some way or other upon oath or affirmation, they fix the ultimate standard--a reasonable basis founded on affidavit, complaint or testimony, for the search to be conducted under judicial sanction and protection.

Neither the constitutions nor the common law make an adversary proceeding out of an application for a search warrant; nor require that it be issued upon notice or be subject to hearing upon notice; nor make it subject to attack or injunction before issuance. What is intended is explicitly stated in the Fourth Amendment--to prohibit unreasonable searches and seizures, and to require that warrants for searches and seizures be issued only for probable cause and upon oath.

In other words:

(T)he Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and...