State v. Smith, 54083-7

CourtUnited States State Supreme Court of Washington
Citation110 Wn.2d 658,756 P.2d 722
Docket NumberNo. 54083-7,54083-7
PartiesSTATE of Washington, Respondent, v. Wayne Douglas SMITH, Appellant.
Decision Date09 June 1988

Page 658

110 Wn.2d 658
756 P.2d 722
STATE of Washington, Respondent,
v.
Wayne Douglas SMITH, Appellant.
No. 54083-7.
Supreme Court of Washington,
En Banc.
June 9, 1988.
Reconsideration Denied Sept. 14, 1988.

Page 659

[756 P.2d 723] Timothy K. Ford, Seattle, for appellant.

Gary P. Burleson, Mason County Prosecutor, Shelton, for respondent.

CALLOW, Justice.

The defendant, Wayne Douglas Smith, appeals his convictions for possession of a controlled substance and unlawful use of drug paraphernalia. Smith pled guilty to the charges after the trial court denied his motion to suppress evidence uncovered during two searches of his property. He appeals the denial of his motion to suppress. We conclude that the affidavit for the issuance of a warrant for the search of the Wood Lane property contained a sufficient recitation of facts to establish probable cause independently of information in the affidavit which may have been illegally obtained. A search warrant that is issued based upon an affidavit reflecting adequate legally garnered information to sustain a finding of probable cause is valid even though other information set forth in the affidavit has been illegally acquired. State v. Coates, 107 Wash.2d 882, 735 P.2d 64 (1987); State v. Cord, 103 Wash.2d 361, 693 P.2d 81 (1985); [756 P.2d 724] State v. Cockrell, 102 Wash.2d 561, 689 P.2d 32 (1984).

I

Smith's arrest resulted from information provided by a police informant. On January 5, 1984, the informant called Detective Morrison of the Washington State Patrol offering to provide information on narcotics trafficking in Mason County. Detective Morrison had never met the informant and knew nothing about him at the time of this telephone conversation. On January 6, 1984, Detective Morrison met with the informant. At the meeting the informant gave the detective information about marijuana growing at Route 5, Box 575-A (the River Road property) and 40 Wood Lane (the Wood Lane property), in Shelton, Washington. The informant told Detective Morrison that Smith was involved in growing marijuana at these locations. At the end of this meeting the detective paid the informant $20.

Page 660

Detective Morrison checked on the informant's background by calling the Mason County Sheriff's Office which had referred the informant to the Washington State Patrol. Morrison learned that no cases had been opened by the Sheriff's Office with information provided by the informant. Additionally, the detective confirmed that the informant was not currently wanted by any police agency.

On January 7, 1984, Detective Morrison asked Mason County Public Utility Districts 1 and 3 for information on the power usage at the River Road and Wood Lane properties. He did not obtain a search warrant before making these requests. Detective Morrison subsequently received a report from Don Young of PUD 1 stating that the power usage at the River Road property had dropped several months before. Detective Morrison suggested to Mr. Young that an illegal power splice was in place at the River Road property, and Mr. Young went to the property to investigate. Mr. Young was unable to discover the splice, so he called Detective Morrison to ask if the detective would accompany him out to River Road to locate the power splice.

On January 25, 1984, Mr. Young and Detective Morrison went to the River Road property. They entered the curtilage area between the house and the outbuildings and removed the power meter that served the River Road property. Detective Morrison then pressed his ear against one of the outbuildings and detected a hum that continued after the power meter had been removed. Detective Morrison reported this to Mr. Young who stated that the humming indicated an illegal splice. Additionally, while on the River Road property, Detective Morrison noticed a strong odor of marijuana coming from a stove pipe at the rear of a shed.

Later that day, Detective Morrison filed an affidavit for a search warrant for the River Road property. The affidavit included the information from the informant, the evidence of the drop in power usage, and Detective Morrison's observations made during his trip to the River Road property with Mr. Young.

Page 661

Detective Morrison subsequently obtained a search warrant for the River Road property, which he executed on January 25. Smith was not present when the warrant was executed. A search of the property revealed what officers believed to be a "grow" room in one of the outbuildings, but the only evidence obtained was 2 marijuana leaves.

While he was at the River Road property neighbors told Detective Morrison that approximately 15 minutes before the officers arrived Smith had driven away in a heavily loaded pickup truck. Detective Morrison then went to the Wood Lane property, where he observed a pickup truck being unloaded by a person he was unable to identify.

Detective Morrison attempted to obtain a search warrant for the Wood Lane property based on his observations. However, the Mason County Prosecutor refused to apply for a warrant based on that information. The next morning, Detective Morrison called the informant and told him that no contraband had been seized in the [756 P.2d 725] search of the River Road property and that he had been unable to obtain a warrant for the Wood Lane property.

In earlier conversations, the informant had suggested to Detective Morrison that he, the informant, could go onto the Wood Lane property to check some roofing he had done for Smith several months earlier. Detective Morrison did not ask the informant to go onto the property, and told the informant that he could not go there without a legitimate reason and could not trespass.

Later that night, the informant went to the Wood Lane property. While on the roof, he looked through the skylight of the residence and observed marijuana plants growing. On January 27, the informant called Detective Morrison to tell him what he had seen the night before. On the basis of this information and the information obtained during the River Road search, Detective Morrison applied for a search warrant for the Wood Lane property.

Detective Morrison obtained and executed the warrant for the Wood Lane property on January 27. A search of the premises produced several marijuana plants, lights, and

Page 662

books on marijuana cultivation. Smith subsequently was charged and convicted of possession of a controlled substance and unlawful use of drug paraphernalia.
II

Smith contends that the evidence seized during the search of the Wood Lane property should have been suppressed because that search was based on an invalid warrant. The warrant was issued pursuant to Detective Morrison's affidavit. The affidavit set forth the observations made by the informant on January 26 when he went to the Wood Lane property, the informant's past history of informing, and the results of Detective Morrison's trip to the River Road property.

Smith challenges the warrant affidavit on several grounds. He asserts that the informant's observations cannot be used as a basis for finding probable cause because the information set forth in the affidavit was not sufficient to show that the informant was reliable. Additionally, Smith contends that the informant's observations must be stricken because he was an agent of the police, and therefore his January 26 visit to the Wood Lane property constituted an illegal search. Finally, Smith argues that Detective Morrison's trip to the River Road property with Don Young constituted an illegal search, and thus the evidence discovered at River Road should be stricken from the Wood Lane affidavit. We conclude that the informant was reliable, not a police agent, and that his observations alone were sufficient to support a finding of probable cause. Therefore, we need not address the legality of the River Road search.

In determining whether information provided by an informant establishes probable cause to issue a search warrant, Washington applies the two-part test set forth 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). Under the Aguilar-Spinelli

Page 663

test, the reliability of an informant is established by showing "underlying circumstances from which the informant drew his conclusion so that a magistrate can independently evaluate the reliability of the manner in which the informant acquired his information; [basis of knowledge prong] and ... underlying circumstances from which the officer concluded that the informant was credible or his information reliable [veracity prong]." State v. Jackson, 102 Wash.2d 432, 435, 688 P.2d 136 (1984).

Jackson stated that the basis of knowledge prong can be satisfied by showing that the informant "personally has seen the facts asserted and is passing on firsthand information." Jackson, at 437, 688 P.2d 136. Here the Wood Lane affidavit states that "confidential reliable informant ... observed the marijuana plants in December 1983 and was on the property on January 26, 1984 and informed your affiant that the marijuana plants and Hal-lide lights are still present and that the plants [756 P.2d 726] are still under cultivation." This statement shows that the informant had firsthand knowledge of the marijuana growing at 40 Wood Lane, and satisfies the basis of knowledge prong of the Aguilar-Spinelli test. A fair reading of the quoted section of the affidavit shows that the informant, while on the property on January 26, 1984, saw marijuana plants under cultivation. Any other interpretation is quixotic at best.

State v. Helmka, 86 Wash.2d 91, 93, 542 P.2d 115 (1975), recognized that "the magistrate is to operate in a commonsense and realistic fashion. He is entitled to draw commonsense and reasonable inferences from the facts and circumstances set forth." Further, State v. Fisher, 96 Wash.2d 962, 965, 639 P.2d 743 (1982), reaffirmed that...

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