State v. Thomas

• Decision Date: 20 May 1993
• Docket Number: No. 59324-8,59324-8
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Andrew Lloyd THOMAS, Petitioner. En Banc

Page 504

121 Wn.2d 504

851 P.2d 673

STATE of Washington, Respondent, v. Andrew Lloyd THOMAS, Petitioner.

No. 59324-8.

Supreme Court of Washington,

En Banc.

May 20, 1993.

Washington Appellate Defender Ass'n, Elaine L. Winters, Seattle, for petitioner

Seth R. Dawson, Pros. Atty., Seth Aaron Fine, Deputy Pros. Atty., Everett, for respondent.

GUY, Justice.

Petitioner Andrew Thomas seeks review of a Court of Appeals decision which reversed the trial court's suppression order in his favor. Thomas argues that the fruits of the search warrant should be suppressed because the warrant was not executed and returned within 3 days of issuance pursuant to RCW 69.50.509. The Court of Appeals held that search warrants for controlled substances must be executed within 10 days of issuance under CrR 2.3 and returned within 3 days of execution pursuant to RCW 69.50.509. We affirm and remand this case for further proceedings.

FACTS

On March 8, 1989, Everett police officers applied for and obtained a search warrant from the Everett District Court. The warrant directed the officers to search, "within 10 days of this date," the residence of Andrew L. Thomas for cocaine, the vessels in which it was contained, all implements used for the illegal manufacture and distribution of drugs, and papers indicating occupancy or ownership of the residence. The warrant directed the officers to "[p]romptly return" the warrant with an inventory of all property seized.

On March 17, 1989, 9 days after its issuance, the officers executed the search warrant. The officers seized a scale that had cocaine residue, a pistol, assorted drug paraphernalia, and other items. While the search was in progress, Thomas arrived in a motor vehicle. The officers arrested Thomas and searched the vehicle incident to his arrest. A 1/2 ounce of cocaine was discovered during the search. The warrant and inventory of property seized were returned the same day.

Thomas was charged in Snohomish County Superior Court with possession of cocaine with intent to deliver and with unlawful possession of a pistol. ¹ Thomas moved to suppress the fruits of the search warrant, arguing that the execution and return of the warrant violated the 3-day limit imposed by RCW 69.50.509. The trial court granted the motion. The State moved for reconsideration, arguing that RCW 69.50.509 has been superseded by CrR 2.3. The court denied the

                State's motion.   The State appealed the trial court's ruling, and the Court of Appeals reversed.  State v. Thomas, 65 Wash.App. 347, 827 P.2d 1394 (1992).   We accepted Thomas's petition for review
                

ISSUE

The issue is whether a search warrant for controlled substances must be executed and returned within 3 days of issuance. We hold that search warrants for controlled substances must be executed within 10 days of issuance pursuant to CrR 2.3 and returned within 3 days of execution pursuant to RCW 69.50.509.

DISCUSSION

I Background

At issue is the proper interpretation of two search warrant provisions. RCW 69.50.509 and CrR 2.3 both establish procedures for executing and returning search warrants. RCW 69.50.509 provides:

If, upon the sworn complaint of any person, it shall be made to appear to any judge of the superior court, district court, or municipal court that there is probable cause to believe that any controlled substance is being used, manufactured ... or otherwise disposed of or kept in violation of the provisions of this chapter, such judge shall ... issue a warrant directed to any law enforcement officer of the state, commanding him or her to search the premises designated and described in such complaint and warrant, and to seize all controlled substances there found, together with the vessels in which they are contained, and all implements, furniture and fixtures used or kept for the illegal manufacture, sale ... or otherwise disposing of such controlled substances, and to safely keep the same, and to make a return of said warrant within three days, showing all acts and things done thereunder ...

(Italics ours.) While the statute sets a 3-day limit for the return of a search warrant for controlled substances, it does not specify what triggers that 3-day period--issuance or execution.

CrR 2.3(c), on the other hand, sets time limits for both the execution and return of a search warrant upon issuance:

... If the court finds that probable cause for the issuance of a warrant exists, it shall issue a warrant ... The warrant shall (Italics ours.) CrR 2.3(d) further provides that after execution, the return of the warrant "shall be made promptly ² and shall be accompanied by a written inventory of any property taken." (Italics ours.)

                be directed to any peace officer.   It shall command the officer to search, within a specified period of time not to exceed 10 days, the person, place, or thing named for the property or person specified.   It shall designate to whom it shall be returned
                

As the Court of Appeals stated, "CrR 2.3 commands that the search take place within 10 days and clearly makes a distinction between return and execution." Thomas, 65 Wash.App. at 349, 827 P.2d 1394. The Court of Appeals interpreted RCW 69.50.509 as controlling the return of the warrant after its execution, and not the execution itself. Thomas, 65 Wash.App. at 350, 827 P.2d 1394. Thomas argues that the Court of Appeals should be reversed because the search warrant was not executed within the time limits set by RCW 69.50.509. We disagree.

II Analysis

Thomas contends that the search warrant provisions of RCW 69.50.509 should prevail over CrR 2.3. Thomas advances two arguments in support of this contention: (1) the Legislature intended that the search and seizure of controlled substances be governed by the statute and not the court rule; and (2) because RCW 69.50.509 is a "specific" statute, it should prevail over CrR 2.3, the general court rule. We are not persuaded by either of these arguments.

Thomas argues that the Court of Appeals' decision is contrary to the Legislature's intent. Thomas claims that since this court's enactment of CrR 2.3 in 1973, the Legislature has amended the Uniform Controlled Substances Act The legislature intends to:

                including RCW 69.50.509, but has not repealed its search warrant provisions.   Thomas concludes that, by implication, the Legislature has expressed its intent that the search for and seizure of controlled substances is governed by RCW 69.50.509, and not CrR 2.3.   We disagree.   RCW 69.50.509 itself makes reference to a historical note on legislative intent
                

(1) Make the statutes of the state consistent with rules adopted by the supreme court governing district courts ³; and

(2) Delete or modify archaic, outdated, and superseded language and nomenclature in statutes related to the district courts.

(Italics ours.) Laws of 1987, ch. 202, § 1. The Legislature has indeed expressed intent opposite of what Thomas alleges. It has recognized this court's inherent authority to promulgate rules of procedure. See RCW 2.04.190. We find no support for Thomas's argument that the Legislature intended for RCW 69.50.509 to control the procedure by which search warrants are executed and returned to the exclusion of CrR 2.3.

Thomas next argues that RCW 69.50.509 prevails over CrR 2.3 because the statute "specifically" provides for procedures regarding searches and seizures for controlled substances, whereas the court rule prescribes procedures for searches and seizures in general. Thomas relies on a rule of statutory construction that states where general and special statutes are "concurrent", the special statute must apply to the subject matter to the exclusion of the general statute. See generally, State v. Danforth, 97 Wash.2d 255, 258, 643 P.2d 882 (1982). Thomas argues that RCW 69.50.509, as a "special" statute, prevails over CrR 2.3. See Supp. Brief of Petitioner, at 8 (citing State v. Danforth, 97 Wash.2d 255, 258, 643 P.2d 882 (1982); State v. Cann, 92 Wash.2d 193, 197, 595 P.2d 912 (1979); State v. Walls, 81 Wash.2d 618, 622, 503 P.2d "Substantive law [a legislative function] prescribes norms for societal conduct and punishments for violations thereof. It thus creates, defines, and regulates primary rights. In contrast, practice and procedure pertain to the essentially mechanical operations of the courts by which substantive law, rights, and remedies are effectuated."

                1068 (1972);   State v. Krieg, 7 Wash.App. 20, 497 P.2d 621 (1972)).   These authorities, however, focus on concurrent matters of substantive law--legislative proscriptions on conduct--rather than court promulgated rules of procedure.   As we stated in an earlier decision
                

Emwright v. King Cy., 96 Wash.2d 538, 543, 637 P.2d 656 (1981) (quoting State v. Smith, 84 Wash.2d 498, 501, 527 P.2d 674 (1974)).

The authorities Thomas cites do not support the premise that a procedural statute applies to the exclusion of a court rule. In State v. Danforth, supra, the court analyzed two statutes that proscribed criminal conduct. The court held that work release inmates were improperly charged under the general escape statute instead of the statute that specifically dealt with escape from work release. Danforth, 97 Wash.2d at 259, 643 P.2d 882. While Danforth applied the general/specific statutory construction rule to two concurrent statutes involving conduct, it provides no authority for Thomas's argument that RCW 69.50.509 prevails over a court rule governing procedure. State v. Cann, supra, and State v. Walls, supra, are equally inapplicable because they also dealt with two statutes that concurrently proscribed criminal conduct, not matters of procedure. In State v. Krieg, supra, we held that RCW 46.20.308, the implied consent statute, is a special statute that controls in the area of chemical or blood testing of a driver suspected of being intoxicated, to the exclusion of the then-existing general search warrant statute (RCW 10.79.015(3)). Krieg, 7 Wash.App. at...