State v. Voelker

• Decision Date: 04 January 1926
• Docket Number: 19522.
• Court: Washington Supreme Court
• Parties: STATE v. VOELKER.

242 P. 6

137 Wash. 156

STATE v. VOELKER.

No. 19522.

Supreme Court of Washington

January 4, 1926

Department 2.

Appeal from Superior Court, Yakima County; Hawkins, Judge.

Peter Voelker was convicted of manufacturing intoxicating liquor and he appeals. Reversed.

H. J Snively and W. B. Clark, both of Yakima, for appellant.

Sydney Livesey, of Yakima, for the State.

MACKINTOSH, J.

The appellant advances four reasons why his conviction for the unlawful manufacture of intoxicating liquor should be reversed.

1. It appears that premises owned by the appellant were searched by peace officers of Yakima county by virtue of a complaint for a search warrant, sworn to by a deputy sheriff, which contained the allegation that the officer had 'probable cause to believe and does believe that there are certain intoxicating liquors being manufactured,' etc. It is claimed that the court erred in refusing to suppress the evidence obtained upon the search under the warrant issued upon this complaint, for the reason that the complaint was made on information and belief, and stated no facts showing probable cause. An interesting discussion of this subject has been made by appellant's counsel, and authorities have been gathered to fortify the position that a showing of probable cause must be made in the complaint before the judicial officer who issues the search warrant. This question, however, has been determined by this court adversely to those authorities, and we find in State ex rel. Hodge v. Gordon, 95 Wash. 289, 163 P. 772, the expression of our view upon the matter:

'It is next contended that the 'probable cause' necessary to be shown before any warrant may issue under section 6262-11 must be stated in the complaint upon which the warrant is issued. There is no such requirement. The only requirement is that probable cause must be shown sufficient to create the belief in the mind of the judge or justice that liquor is being sold, or otherwise disposed of, contrary to law. The ascertainment of probable cause is, under this statute, a judicial function involving judicial discretion. Toole v. State, 170 Ala. 41, 54 So. 195; State v. Hobbs, 39 Me. 212. That there is 'probable cause' must be determined before the issuance of a warrant, but, being determined to the satisfaction of the judge or justice, it is sufficient without its statement or formal charge in the complaint. DeGraff v State, 2 Okl. Cr. 519, 103 P. 538; Kniseley v Ham, 39 Okl. 623, 136 P. 427, 49 L. R. A. (N. S.) 770.

'It is next urged that a search warrant cannot be based upon a complaint made upon belief. Both the search warrant and the complaint stated all that was required to be stated. Neither one is confined to the existence of a mere belief in the mind of the complainant, but follows the language of the act in stating that the belief of the complainant is founded upon probable cause for the existence of such belief. Whether or not this probable cause is sufficient to initiate legal process is to be determined by the judicial officer, and, when the judicial officer is so satisfied, process may properly issue without a statement in the warrant or complaint of facts upon which such belief is founded. Rose v. State, 171 Ind. 662, 87 N.E. 103, ; Lowrey v. Gridley, 30 Conn. 450; Gray v. Kimball, 42 Me. 299; State v. Nowlan, 64 Me. 531; Salley v. State, 9 Ala. App. 82, 64 So. 185.'

2. The search warrant is further attacked for the reason that the description of the premises to be searched is too indefinite. The complaint for the search warrant did not mention the buildings upon the land, although the land itself was particularly described. In the warrant there was added to the description contained in the complaint the words, 'together with the buildings thereon.' The claim is that the search warrant could not cover more than the property mentioned in the complaint. Again, this court seems to have previously had this question before it for consideration and to have passed upon it in such a manner that the appellant's position cannot be sanctioned. In State v. Ditmar, 132 Wash. 501, 232 P. 321, the complaint and warrant described only the real property, and neither referred to the buildings situated upon it. In that case a search was made of these buildings and objection was made that the search was illegal, for the reason that the warrant made no reference to the buildings. This court, however, said:

'The second branch of the objection is that the description of the premises is too indefinite. As we have before stated, the warrant described a specific tract of real property, containing no reference to a house or other structures that might be situated thereon. But we think the description sufficient. The buildings searched were a part of the described premises, and manifestly a warrant to search the whole authorizes a search of the parts.'

It would seem from that opinion that the addition in the warrant to the description in the complaint was mere surplusage, and that the warrant was sufficient to justify a search of the buildings, even though it had not contained the additional words.

3. The next point pressed by the appellant is that his plea of former jeopardy should have been sustained. While erroneously named a plea of former jeopardy, it is in fact a plea that the prosecution in the superior court for a gross misdemeanor is barred by the dismissal of an action in a justice court for the same...