State v. White
| Decision Date | 26 December 1973 |
| Docket Number | No. 951--II,951--II |
| Citation | 518 P.2d 245,10 Wn.App. 273 |
| Parties | The STATE of Washington, Respondent, v. Alexander Carl WHITE, Appellant. |
| Court | Washington Court of Appeals |
Jess E. Minium, Jr., Kelso (Court-appointed), for appellant.
Henry R. Dunn, Pros. Atty., C. C. Bridgewater, Jr., Deputy Pros. Atty., Kelso, for respondent.
Defendant White was arrested without warrant and charged with the crime of possession of a controlled substance in violation of RCW 69.50.401. Jury trial was waived and the court considered suppression of the evidence in conjunction with the trial on the merits. Suppression was denied and the defendant was convicted and sentenced.
The primary issue in this case is whether the tip of an informant, accompanied by corroborative information gathered by the arresting officer, provided probable cause to arrest and search the defendant. We hold the arrest was valid. A second issue is whether the trial court erred in not requiring disclosure of the identity of the police informer. We affirm the trial court.
The facts reveal that at approximately 1 p.m., Chief of Police Bourdage, the one-man police department of Kalama, Washington, received a phone call from a police informant who was known to the police but whose identity was not disclosed at trial. The informant was further known to have given information leading to arrests in the past. His personal reliability was therefore not seriously questioned. The informant advised Chief Bourdage that a maroon 1965 Chevrolet pickup with a canvas back on it, and California license plates, was in town. The pickup was to be at the Gallery, a confectionery store in the 100 block on Main Street, at 2 p.m. The occupants of the pickup were stated to be in possession of 'acid paper,' a form of LSD, and the informant further stated that the drugs were meant for sale. Because the sheriff's office had men better trained in narcotics detection, Chief Bourdage called Deputy Bena, who arrived in about 15 minutes. The police chief told the deputy sheriff the details of the call and advised him he had seen the pickup in question in town and that young people were riding in it. The chief then answered an ambulance call and next appeared on the scene at about the time of the arrest of the defendant by Deputy Bena.
There was a marked difference between the testimony of Chief Bourdage and the testimony of Deputy Bena. Chief Bourdage testified that the unidentified informant did not advise him of any underlying circumstances from which the informant concluded the contraband was where he claimed it was, nor did the informant advise the chief that he had direct personal knowledge of the facts related. 1 Deputy Bena, however, stated that Chief Bourdage told him, prior to the arrest, that the informant had personal contact with the individuals who were going to make the sale. 2
After receiving the information from Chief Bourdage, Deputy Bena immediately drove to the Gallery and parked. At approximately 5 minutes after 2 p.m. he observed the Chevrolet pickup in the 100 block on Main Street. The pickup had slowed down almost to a stop at the Gallery. Believing that he had probable cause to make an arrest based upon the informant's tip to Chief Bourdage, Deputy Bena stopped the vehicle.
Without a search warrant, Deputy Bena searched the driver of the vehicle, and the passenger, defendant White. He found 5 amphetamine tablets in the defendant's wallet. He found nothing on the driver or in the vehicle. The driver was the person who had been driving the pickup around town and the passenger was a local resident.
Once again in recent months we are called upon to interpret the 'two-pronged' Aguilar-Spinelli test which enunciates the constitutional criteria against which an informant's tip must be measured for the purpose of determining probable cause. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Whether the question involves one of probable cause for an arrest or search without a warrant, as in this case, or involves a magistrate's consideration of whether a warrant should be issued, the analysis is basically the same. Spinelli v. United States, Supra. The general requirement of a search warrant is relaxed when an automobile is involved. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).
In State v. Chatmon, 9 Wash.App. 741, 515 P.2d 530 (1973), we considered the second prong of the Aguilar-Spinelli test--the reliability of the informant. That requirement is not seriously challenged in the instant case. Here we are considering the first prong of the Aguilar-Spinelli test--did the tip contain sufficient underlying facts or circumstances from which the informant concluded that a crime would be committed, so that the officer receiving the tip had a reasonable basis to conduct the search and make the arrest, or does the record disclose no more than a declaration of suspicion and belief, which is legally insufficient? State v. Patterson, 83 Wash.2d 49, 52, 515 P.2d 496 (1973). We find no more than a conclusion or declaration of suspicion and belief, and that the tip Alone did not support a finding of probable cause to arrest the defendant.
To constitute probable cause for a search or arrest, information conveyed to the police, even by a Reliable informant, must be tested to determine that the Tip is reliable. The reliability of the information may be established by a showing that the informant based his assertions on direct personal observations, or upon the reasonableness of the underlying circumstances, sources, or facts upon which the informant reached his conclusion. In every case, the informant's information must go beyond a mere unsupported conclusion, belief, or suspicion that the illegal activities are occurring or will occur. Aguilar v. Texas, Supra; Spinelli v. United States, Supra; State v. Patterson, Supra.
In considering the conflicting statements of Chief Bourdage and Deputy Bena we are forced to the conclusion that Deputy Bena could know no more about the 'tip' than Chief Bourdage knew and told him. The trial court apparently reached the same conclusion because the findings of fact were based upon the testimony of Chief Bourdage and did not include the 'personal contact' testimony of Deputy Bena.
Although the tip alone was insufficient to support a finding of probable cause, a further consideration is whether the observations of Deputy Bena subsequent to the tip may be used to support a finding of probable cause. For example, the United States Supreme Court has held that where the initial impetus for an arrest is an informer's tip, information gathered by the arresting officers can be used to sustain a finding of probable cause for an arrest that could not be supported by the tip alone. Whiteley v. Warden of Wyo. Penitentiary, 401 U.S. 560, 567, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).
To find probable cause by this 'bootstrap' approach, the additional information must in some sense be corroborative of the informer's tip that the arrestees committed the felony or were in the process of committing the felony. Whiteley v. Warden of Wyo. Penitentiary, Supra. In the Whiteley case, the court noted that the most the additional information there tended to establish was that either the sheriff or the informant knew the defendants and the kind of car they drove. That information was held insufficient to establish probable cause. 401 U.S. at 567, 91 S.Ct. 1031. By contrast, the Draper case involved a reliable informant's tip that contained a detailed physical description of the arrestee, and more importantly, a description of his past movements as well as an assertion that the subject would be returning to town by train on one of the following two mornings. When the police observed a person matching the description alight from a train as predicted, the court in Draper found probable cause to arrest. 358 U.S. at 310, 79 S.Ct. 329.
We believe that the facts of the instant case most closely resemble those in Draper v. United...
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