State v. Cole

906 P.2d 925, 128 Wash. 2d 262, 1995 Wash. LEXIS 248
CourtWashington Supreme Court
DecidedDecember 7, 1995
Docket62316-3
StatusPublished
Cited by137 cases

This text of 906 P.2d 925 (State v. Cole) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cole, 906 P.2d 925, 128 Wash. 2d 262, 1995 Wash. LEXIS 248 (Wash. 1995).

Opinions

[266]*266Talmadge, J.

— Petitioners Michael E. Cole and James Szymanowski were both convicted for drug-related offenses. Prior to their convictions, each was subjected to a civil forfeiture action that resulted in the forfeiture of certain personal property. Cole and Szymanowski now seek vacation of their convictions and sentences claiming their criminal convictions violated the double jeopardy clauses of the United States Constitution and of the Constitution of the State of Washington. U.S. Const. amend 5; Wash. Const. art. I, § 9. Cole also seeks reversal of the trial court’s denial of his motion to suppress, and dismissal of his case for lack of evidence.

We hold that the civil forfeiture of "proceeds,” as defined by RCW 69.50, is not punishment and does not implicate double jeopardy. With respect to the search warrant in Cole’s case, we affirm the trial court’s denial of his motion to suppress. Cole’s conviction is affirmed. Szymanowski’s case is remanded to the trial court for a determination of whether proceeds were civilly forfeited in his case.1

Issues

1. Does jeopardy attach upon the civil forfeiture of the proceeds of illegal drug transactions within the meaning of RCW 69.50.505(a)(7)?

2. Were proceeds of illegal drug transactions forfeited in the present case?

3. Was evidence provided by a citizen informant who witnessed drug activity and by an officer who smelled [267]*267growing marijuana, and evidence of power consumption obtained from a utility pursuant to a search warrant, sufficient to establish probable cause that a crime was committed so that a search warrant should issue?

Facts

State v. Cole2

In early June 1992, the King County Police Drug Enforcement Unit received a telephone call from a citizen informant who believed a neighborhood residence in Issaquah, Washington, was being used to grow marijuana or for some other illegal activity. According to Detective Joseph Gaddy, who investigated the tip, the informant reported the house appeared unoccupied, but some young men came two or three times a week, staying for only a few minutes each time. The informant described the young men’s appearances and one of their automobiles. The informant also stated he or she and other neighbors had smelled something unusual apparently coming from the house.

Gaddy drove to the house to investigate. The yard was overgrown, the house did not look lived in, and the basement windows were covered. Although it was daylight, the porch light and an interior light were left on. There was no response to Gaddy’s knock on the front door. As he [268]*268walked past the garage, Gaddy heard a humming sound he recognized as a ballast for fluorescent or metal halogen lights and fan motors operating inside the garage. Gaddy then stepped around the side of the garage to the electric meter for the house, located approximately two feet from the corner of the house nearest the driveway. The electric meter was spinning very rapidly, faster than Gaddy believed would be observed if the house were occupied. He also smelled the odor of growing marijuana. As Gaddy returned to his car, he noticed a new metal chimney erected some distance away from the older masonry chimney.

The next day, based on these observations, Gaddy filed an affidavit for a search warrant for electrical utility and telephone account information for the suspect residence. The affidavit summarized Gaddy’s training and experience, the allegations made by the citizen informant, Gaddy’s observations of the residence on June 9, 1992, and the basis for his suspicion that a marijuana grow operation existed in the house. Clerk’s Papers at 86-89. The affidavit did not reveal the identity of the citizen informant, although the police knew who the informant was. Clerk’s Papers at 87.

A search warrant for the power account information was issued on June 12, 1992, from the King County District Court. Clerk’s Papers at 92-93.3 The power records obtained from Puget Sound Power and Light Company showed high power consumption, averaging 7,000 KWH per two-month billing period or about $400 worth of power, contrasted with an average of about 1,900 KWH per billing period, worth about $95, over the last six months of the prior tenants’ occupancy in the residence.

On June 30, 1992, the King County District Court issued a search warrant for the suspect residence and two [269]*269automobiles seen frequently at the residence. The warrant was based upon an expanded affidavit by Gaddy, which contained a summary of the information obtained from the power consumption records, and added the results of further investigation into the allegations in his previous affidavit. The affidavit described a visit to the residence on June 10, 1992, by Officer J.R. Hall, during which Hall reported smelling growing marijuana while standing in a neighbor’s yard approximately ten feet from the suspect house. The affidavit described Hall as a member of a proactive unit addressing street level narcotics trafficking, who, in more than two years as a police officer, had been involved with numerous marijuana grow operations and was familiar with the smell of growing marijuana. Clerk’s Papers at 66, 76.

The Gaddy affidavit also contained additional information from the citizen informant identifying three automobiles used by the persons frequenting the house, and providing the license plate numbers for two of those vehicles. Gaddy stated he believed the informant to be very reliable because the informant had lived in the neighborhood for several years and worked in the community, had extended family in the community, had no criminal record, and came forward voluntarily and without requesting compensation. Clerk’s Papers at 75.

The affidavit identified the registered owner of one vehicle as Fred Hatcher, who had been arrested twice and convicted once for violation of the Uniform Controlled Substances Act,4 and whose auto repair business appeared to be a front for cocaine distribution. The affidavit included additional information recorded during surveillance of the residence, including visits of various individuals. Gaddy’s [270]*270investigation revealed a connection between Hatcher and Cole. Report of Proceedings I at 38; Clerk’s Papers at 79. The affidavit also reported Cole had two prior convictions for violation of the Uniform Controlled Substances Act and described Cole’s resistance during a prior arrest.

On June 30, 1992, officers with the King County Drug Enforcement Unit executed the warrant to search the suspect house. They discovered Cole at the house and arrested him. During the search, the officers discovered evidence of a marijuana grow operation, including marijuana plants and grow equipment.

On July 1, 1992, as authorized by RCW 69.50.505

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Bluebook (online)
906 P.2d 925, 128 Wash. 2d 262, 1995 Wash. LEXIS 248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cole-wash-1995.