State v. Porter

• Decision Date: 05 May 1977
• Docket Number: No. 44575,44575
• Citation: 563 P.2d 829,88 Wn.2d 512
• Parties: STATE of Washington, Respondent, v. James Bruce PORTER, Appellant.
• Court: Washington Supreme Court

Page 512

88 Wn.2d 512

563 P.2d 829

STATE of Washington, Respondent, v. James Bruce PORTER, Appellant.

No. 44575.

Supreme Court of Washington, En Banc.

May 5, 1977.

James S. Hogan, Yakima, for appellant.

Joseph G. Panattoni, Pros. Atty., David H. Gorrie, Deputy Pros. Atty., Ellensburg, for respondent.

BRACHTENBACH, Associate Justice.

Defendant appeals from a conviction of two counts of violating the Uniform Controlled Substances Act. He was convicted of possessing marijuana in violation of RCW 69.50.401(c) and of manufacturing or having in his possession with intent to manufacture or deliver marijuana in violation of RCW 69.50.401(a).

Defendant's sole ground on appeal is alleged error in the denial of a pretrial motion to quash a search warrant and suppress evidence seized in execution of that warrant. After denial of the motion, a nonjury trial resulted in defendant's conviction. We affirm.

Defendant's troubles began when he and his roommates placed their marijuana plants on a window sill facing a public street. A passing police officer noticed the plants which predictably led to an affidavit for a search warrant on the premises. No appellate challenge is made to the sufficiency of the affidavit.

The affidavit was submitted to a nonlawyer district court commissioner who issued the warrant. The search turned up marijuana plants, numerous bags of marijuana, stems, seeds and containers of refined marijuana. In an unchallenged confession, the defendant admitted to common possession of the premises, to the possession and use of marijuana and with selling and delivering marijuana, albeit in small quantities.

Defendant's attack upon the issuance of the search warrant is threefold. First, he contends that a district court commissioner has no authority to issue a search warrant. Second, if that authority is found to exist, the appointment of this commissioner was defective. Third, defendant argues that a search warrant issued by a nonlawyer, nonjudge commissioner is constitutionally defective for reasons discussed later.

Thus we first inquire whether there is authority for a district court commissioner to issue a search warrant. Our rules, JCrR 2.10, authorize issuance of a search warrant by a magistrate. The next question then is who is a magistrate? The statutory definition of a magistrate includes a justice of the peace. RCW 2.20.020. The rule and statute combined provide the authority for the justice of the peace to issue a search warrant. Must that authority be exercised only by the judge personally? No. The legislature has created justice court commissioners who shall 'have such power, authority and jurisdiction in criminal matters as the justices of the peace who appointed him possess and shall prescribe.' RCW 3.42.020.

Hence within the confines of the statute a justice of the peace can function through a commissioner. It follows that a commissioner can issue a search warrant.

Second, was this particular commissioner properly appointed and qualified? Defendant contends the appointment was oral, without an oath and without a written prescription of duties.

The appointment, oath and definition of duties occurred some 8 years before the event here. Memories had dimmed; the State failed to produce any documentary proof of appointment. However, the judge and the commissioner recalled the appointment to have been made orally and that duties were prescribed and that an oath was taken. The trial court so found.

The statute does not require a written appointment although that would be preferable; the only formal requirement is the taking of an oath. RCW 3.42.020; RCW 3.34.080....