State v. Smith

• Decision Date: 31 December 1984
• Docket Number: No. 13449-3-I,13449-3-I
• Citation: 694 P.2d 660,39 Wn.App. 642
• Parties: STATE of Washington, Respondent, v. Jerrold W. SMITH, Appellant, and Mary E. Van Laanen, and each of them, Defendant.
• Court: Washington Court of Appeals

Page 642

39 Wn.App. 642

694 P.2d 660

STATE of Washington, Respondent, v. Jerrold W. SMITH, Appellant and Mary E. Van Laanen, and each of them, Defendant.

No. 13449-3-I.

Court of Appeals of Washington Division 1.

Dec. 31, 1984.

Publication Ordered Jan. 25, 1985.

Matthew W. Peach, William Johnston, Bellingham, for appellant.

David S. McEachran, Whatcom County Pros. Atty., Mac D. Setter, Deputy Pros. Atty., Bellingham, for respondent.

SCHOLFIELD, Judge.

Jerrold W. Smith appeals his conviction for violation of the Uniform Controlled Substances Act, following a bench trial on stipulated facts. He contends that the fruits of a search conducted pursuant to a search warrant should have been suppressed because the warrant lacked probable cause under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). He also contends that the trial court erred in denying him an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

I.

On February 3, 1983, Richard Denson, deputy sheriff for Whatcom County, appeared before district court judge David Rhea, Jr., requesting a warrant to search a mobile home and metal pole building, located at 8415 Carl Road, Sumas, Washington. Deputy Denson supported his request with an affidavit and oral testimony.

In his affidavit, Denson stated that Gerrold or Jerrold Smith and Mary Van Laanen owned the property and that it contained three buildings: a mobile home, a log cabin under construction on one side of the mobile home and a metal pole building on the other side, in which marijuana plants and growing equipment were to be found. The affidavit set forth the legal description of the property and listed the evidence sought as 100 to 150 3- to 4-foot marijuana plants, 4-6 halide lights, garden tools, a ventilation system and the ownership records of these items and of the property itself.

Deputy Denson testified that an informant had given him the name of the property owner and the name of a woman also living on the premises--"Mary". He testified that he had checked with the county assessor's office and had found that the property was listed under Jerrold Smith and Mary Van Laanen. Denson testified that the informant had also given him a memorized telephone number, which Denson had verified through the telephone company as belonging to a Jerrold Smith at the same address.

Denson testified that the informant had told him that he had seen the marijuana and the growing equipment in the metal pole building three times before: 2 months previously, 1 month previously, and on the previous Sunday or Monday--4 or 5 days before. Denson testified that the informant had described the plants and growing operation in considerable detail, had drawn a marijuana leaf for Denson, and had pointed out to Denson a similar growing operation depicted in a magazine.

Denson also testified that he was not aware that the informant had ever given false information to the police. He testified that he knew of no prior criminal history for the informant except for a current class C felony charge. He testified that an agreement had been made with the informant that if his information regarding the quantity of marijuana and the existence of a growing operation was found to be accurate, his felony charge would be reduced to a misdemeanor.

The district court issued the search warrant and the police discovered and seized growing equipment and a considerable amount of marijuana.

On March 14, 1983, Smith's defense counsel filed a memorandum in support of a motion to contravene the search warrant, stating that it was known that Alan Dean was the confidential informant and that Dean had been interviewed on March 4, 1983 in the presence of his attorney and a deputy prosecuting attorney. In the memorandum, defense counsel asserted that Dean had stated during the interview that he had told Deputy Denson that he had not entered the pole building on his visit to the property 4 or 5 days before the search. Defense counsel asserted in the memorandum that Dean had stated that he had entered the pole building approximately a month before and on earlier occasions, but that on his visit 4 or 5 days before the search he had only visited the trailer, although it was nighttime and he had seen lights on inside the pole building. Defense counsel also asserted that Dean had stated during the interview that Deputy Denson had promised him not only that his felony would be reduced to a misdemeanor, but also that he would receive no jail time and that his anonymity would be preserved and the charges against the defendants dismissed if developments indicated that he would be required to appear.

Defense counsel moved for a bench warrant for the arrest of Alan Dean as a material witness on March 15, 1983. This bench warrant was issued on March 16, 1983.

On March 17, 1983, a hearing was held addressing Smith's motion to dismiss and his motion to contravene the search warrant. Continental Telephone Company's safety security coordinator testified about Continental's security procedures concerning unlisted telephone numbers. Deputy Denson also testified. He admitted that Dean had never told him the street address and that he had never been to the property prior to the search. He also testified, however, that he was very familiar with the area and that Dean had pointed out the property on a county map, had drawn a "rough sketch map" and had described to him in great detail how to get to the property. Deputy Denson also testified that he had told Dean that the search warrant would be sealed and that if Dean's identity became known, he would meet with Dean and discuss the possible dismissal of the charges against the defendants. Denson admitted that he had not disclosed this to the district court judge.

The trial court denied Smith's motion to suppress and quashed the bench warrant for Dean. Smith and Van Laanen stipulated to the facts and were found guilty by the court. Smith appeals his conviction for manufacture of marijuana, in violation of RCW 69.50.401(a).

II.

Smith contends that the trial court erred in denying his motion to suppress the fruits of the search conducted pursuant to the search warrant. He contends that there was no probable cause for the search warrant because the affidavit and the oral testimony of Deputy Denson failed to satisfy the "veracity" prong of the Aguilar-Spinelli test. He argues that the State established no "track record" for Dean and that the State failed to prove that Dean's information was reliable on this particular occasion.

In State v. Jackson, 102 Wash.2d 432, 688 P.2d 136 (1984), the Supreme Court recently refused to follow the analysis of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The court held that article 1, section 7 of the Washington Constitution requires that the 2-prong Aguilar-Spinelli test must be met in evaluating the existence of probable cause when a warrant is based on an informant's tip.

The two prongs of the Aguilar-Spinelli test are "basis of knowledge" and "veracity." The "basis of knowledge" prong requires that the officer explain to the magistrate how the informant claims to have come by the information. The "veracity" prong requires that the officer explain to the magistrate why the officer concluded that the informant was credible or that the informant's information was reliable in this instance. The "basis of knowledge" prong can be satisfied by the informant's direct personal observations or, under certain circumstances, by information given to the informant that would be hearsay. The "veracity" prong can be satisfied by establishing the informant's "track record" or by establishing that the information is reliable because it is a declaration against interest. Also, the court in Jackson held that either or both of the Aguilar-Spinelli prongs can be satisfied by independent police investigatory work that corroborates the informant's tip. Jackson, 102 Wash.2d at 438, 688 P.2d 136.

Smith concedes that the "basis of knowledge" prong was satisfied in this case. He challenges only the "veracity" prong.

In State v. Bean, 89 Wash.2d 467, 572 P.2d 1102 (1978), the court considered the reliability (veracity) of an informant who had provided the police with information in exchange for a favorable sentencing recommendation. The court held:

Because of the strong motive that Hawn had to be accurate in the information he provided the officers, we believe Hawn qualifies as a reliable informant upon whom the police were justified in placing reliance.

Bean, at 471, 572 P.2d 1102. The court upheld the warrantless arrest of the defendant and the warrantless search of his van, both of which had been based on the information supplied by the informant. The court's holding in Bean was recently cited with approval in State v. Jackson, supra 102 Wash.2d at 437, 688 P.2d 136.

Smith attempts to distinguish Bean, arguing that Bean involved a named informant, that in Bean the informant's information was buttressed by information from other reliable informants and that, in this case, the "deal" also included sealing the warrant and dismissing the case should the informant's identity be revealed.

Smith's attempts to distinguish Bean are unpersuasive. Although the informant's identity in Bean was known and his information buttressed by information from other informants characterized as "reliable," these circumstances did not underlie the court's holding. The rationale for the court's holding was that the offer of a favorable sentence recommendation gave the informant a strong motive to provide information that was accurate. See W. LaFave, Search & Seizure § 3.3(c) at 528-29 (1978) and 1984 Supplement at 146-47 (arguing and citing case authority for the proposition that a person in the position of the informant also would "not...