State v. Ettenhofer

79 P.3d 478, 119 Wash. App. 300, 2003 Wash. App. LEXIS 2717
CourtCourt of Appeals of Washington
DecidedNovember 18, 2003
DocketNo. 28545-2-II
StatusPublished
Cited by12 cases

This text of 79 P.3d 478 (State v. Ettenhofer) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ettenhofer, 79 P.3d 478, 119 Wash. App. 300, 2003 Wash. App. LEXIS 2717 (Wash. Ct. App. 2003).

Opinion

Bridgewater, J.

John Anthony Ettenhofer was convicted of manufacture of a controlled substance — marijuana. He appeals, alleging that the failure to have a written warrant to search his property requires suppression of the marijuana. Although officers gave a telephonic statement in applying for a search warrant and a judge determined that probable cause existed, nobody executed a written warrant, affixed the authorizing court’s signature to a warrant, or gave Ettenhofer a copy of a warrant. We hold that these failures constitute a warrantless search in violation of CrR 2.3(c), RCW 10.79.040, and article I, section 7 of the Washington State Constitution. Suppression is the appropriate remedy. We reverse Ettenhofer’s conviction.

In August 2000, a Lewis County sheriff’s deputy arrested an individual who informed the deputy of a marijuana grow at Ettenhofer’s property. Several days later, officers went to Ettenhofer’s property to investigate the tip. While conducting a “knock and talk,” officers smelled the marijuana coming from a shop building.1 They advised Ettenhofer that they would obtain a warrant to search the shops if he would not consent to the search. Ettenhofer refused and ordered the officers to leave his property. Some of the officers stayed at the home to ensure that the scene was not disturbed pending issuance of a search warrant, and one drove to a [303]*303location where his cell phone would work and contacted a district court judge.

The officer was placed under oath and gave a telephonic statement of grounds for the search. The judge found probable cause and authorized a search. But neither the judge nor the officer executed a written warrant.

The search occurred thereafter, revealing the expected marijuana grow along with hanging bags- of marijuana. A return was executed after the search in compliance with the relevant portion of CrR 2.3(d). The trial court denied Ettenhofer’s subsequent suppression motion, reasoning that Ettenhofer failed to show actual prejudice resulting from the written warrant failure. Trial occurred, and the court found Ettenhofer guilty as charged.

I. Criminal Rule 2.3

Criminal Rule 2.3 outlines warrant and search procedures. CrR 2.3(c)2 provides that a warrant may issue only on a court determination of probable cause, and the affidavit establishing the grounds for issuance may be a document or “an electronically recorded telephonic statement.”

[304]*304We start by recognizing that CrR 2.3(c) is not entirely clear in its written warrant command. Therefore, principles of statutory construction guide our analysis of the rule. See State v. Hutchinson, 111 Wn.2d 872, 877, 766 P.2d 447 (1989). We interpret court rules in a manner that gives effect to the Supreme Court’s intent and avoids absurd results. See State v. Kelly, 60 Wn. App. 921, 927, 808 P.2d 1150 (1991). We must construe the rules as a whole, giving effect to each provision. See State v. Merritt, 91 Wn. App. 969, 973, 961 P.2d 958 (1998).

We note at the outset that a provision in CrR 2.3(c) does contemplate telephonic procedures. The State asserts that this provision prescribes a method of warrant issuance in which the judge’s oral determination of probable cause and subsequent oral description of items subject to seizure is the warrant. But this argument clearly reads CrR 2.3(c)’s telephonic provision too broadly. The rule contemplates only that the sworn testimony establishing the grounds for the warrant may be telephonic. This provision addresses a phase of the warrant process that precedes actual warrant issuance, and it therefore cannot validate the officers’ actions here. The rule provides for no further telephonic procedures.

The rule does, however, contemplate further written procedures. After the court determines that probable cause exists, “it shall issue a warrant or direct an individual whom it authorizes for such purpose to affix the court’s signature to a warrant identifying the property or person and naming or describing the person, place or thing to be searched.” CrR 2.3(c). This command exposes three relevant points.

First, it establishes that the rule is sequentially ordered. The probable cause determination, which may be based on a written or telephonic affidavit, occurs before warrant issuance, not at the issuance phase. Thus, the telephonic procedures do not apply during the issuance phase. Second, it directs the issuance of a warrant, which under any reasonable construction requires a physical document. [305]*305Third, it requires the affixation of the authorizing court’s signature. A signature cannot be affixed to an oral authorization in a manner consistent with the rule. Although simplistic, these points show that the procedure prescribed in CrR 2.3(c) has a written warrant as its end product. And a written warrant as the end product of the warrant rules is consistent with our collective experience in the various phases of criminal prosecution.

As principles of statutory construction require that we harmonize CrR 2.3(c) with other relevant rules, we next turn to CrR 2.3(d).3 That rule requires that “[t]he peace officer taking property under the warrant shall give to the person from whom or from whose premises the property is taken a copy of the warrant and a receipt for the property taken” (emphasis added). As these words are perfectly clear, the Supreme Court’s intent with respect to subsection (d) is not open to debate; it expected that the person searched would receive a physical document. Therefore, an oral warrant like the one at issue here does not satisfy the dictates of CrR 2.3(d).

Besides proving that CrR 2.3(c) requires a written warrant, section (d) has another function in this case. As the officers did not have a written warrant, they could not have given Ettenhofer a copy of one as the rule commands. Thus, the officers violated CrR 2.3(d) in addition to CrR 2.3(c).

These provisions establish that the Supreme Court intended a written, signed warrant when it enacted CrR 2.3(c). The requirement does not vanish when officers use the telephonic affidavit procedure. In such a situation, as [306]*306here, after the court determines that probable cause exists, the officers must affix the authorizing court’s signature to a properly executed, written warrant.

This analysis is consistent with a California court’s construction of a similar rule.4 As amended in 1970, California Penal Code § 1526 prescribed the procedure for an affidavit establishing probable cause, creating a telephonic procedure analogous to ours. The rule stated, “[i]n lieu of the written affidavit. . . the magistrate may take an oral statement under oath which shall be recorded and transcribed. The transcribed statement shall be deemed to be an affidavit for the purposes of this chapter.” Former Cal. Penal Code § 1526(b) (1970). Section 1528 then commanded that, if the magistrate was satisfied that probable cause existed, he was to “issue a search warrant, signed by him with his name of office” (former Cal.

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State v. Ettenhofer
79 P.3d 478 (Court of Appeals of Washington, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
79 P.3d 478, 119 Wash. App. 300, 2003 Wash. App. LEXIS 2717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ettenhofer-washctapp-2003.