State v. Fisher

639 P.2d 743, 96 Wash. 2d 962, 1982 Wash. LEXIS 1254
CourtWashington Supreme Court
DecidedJanuary 28, 1982
Docket47839-2
StatusPublished
Cited by80 cases

This text of 639 P.2d 743 (State v. Fisher) 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. Fisher, 639 P.2d 743, 96 Wash. 2d 962, 1982 Wash. LEXIS 1254 (Wash. 1982).

Opinions

Dolliver, J.

Paula Lynn Fisher and Thomas Joseph Lancaster were convicted of possession of a controlled substance after their residence was searched by Pierce County Sheriff's officers pursuant to a search warrant. Defendants appealed contending the affidavit given by the policeman in requesting the search warrant was defective and insufficient to establish probable cause. They also argue that the search warrant itself was defective as it contained an erroneous address and description of the building. The Court of Appeals reversed the conviction, holding the credibility of the informant was not established by the affidavit; it did not consider the other two issues raised. State v. Fisher, 28 Wn. App. 890, 626 P.2d 1020 (1981). We reverse the Court of Appeals, hold the affidavit and search warrant were adequate, and affirm the convictions.

[964]*964On January 30, 1979, a Pierce County police officer presented an affidavit to the court in support of a complaint for a warrant to search for controlled substances at "3514 Madison" in Tacoma. The allegation of probable cause was based on the following:

That within the past 72 hours a reliable informant, known to the affiant, has visited the above residence and while there observed LSD and marijuana.
The informant is reliable in that he/she has given information regarding drug trafficing [sic] and use in the past which has proven to be true and correct.
The informant has made two controlled buys to-wit: the informant was searched, given money, observed to enter and return from a residence with controlled substances purchased from within.
The informant stated that persons who live at and visit the residence are known to conceal drugs on their persons and in their vehicles. The informant further stated that the residents [sic], Tom Lancaster, major sources of income were the sale of drugs and stolen property.

A search warrant was issued the same day and executed 2 days later.

Upon finding no one home at 3514 South Madison, the police entered and searched the residence. They seized two marijuana plants, suspected cocaine and other drugs, a .357 revolver, and other assorted items suspected of being stolen. The defendants returned home during the search. They were arrested and later charged with possession of a controlled substance (phenobarbital).

Twice the defendants moved unsuccessfully to suppress the seized evidence. Defense counsel then stipulated the facts and the trial court entered a finding of guilty.

The paucity of the record greatly hinders our review of the totality of the circumstances surrounding the request and issuance of the warrant. As a result we must accept the affidavit on its face and any doubts should be resolved in favor of the warrant. State v. Partin, 88 Wn.2d 899, 904, 567 P.2d 1136 (1977), citing United States v. Ventresca, 380 U.S. 102, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965).

[965]*965 The law as set forth in Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964) and Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969) requires the State to satisfy a 2-prong test in order to obtain a search warrant. Under the second or "veracity" prong, sufficient facts must be presented so the magistrate may determine either the inherent credibility or reliability of the informant on the particular occasion. Affidavits for search warrants must be tested in a commonsense manner rather than hypertechnically as long as the basic Aguilar/ Spinelli requirements are met. State v. Partin, supra. "The support for issuance of a search warrant is sufficient if, on reading the affidavits, an ordinary person would understand that a violation existed and was continuing at the time of the application." State v. Clay, 7 Wn. App. 631, 637, 501 P.2d 603 (1972), followed in State v. Partin, supra.

To meet the Aguilar/Spinelli test the credibility of the informant must be demonstrated. The mere statement that an informant is credible is not sufficient (Aguilar v. Texas, supra), whereas it is almost universally held to be sufficient if information has been given which has led to arrests and convictions. 1 W. LaFave, Search and Seizure § 3.3, at 509 (1978); see also McCray v. Illinois, 386 U.S. 300, 18 L. Ed. 2d 62, 87 S. Ct. 1056 (1967); State v. Partin, supra.

This case lies somewhere between these two positions. Affiant stated that the informant had given him information proven to be true and correct in the past. While this is more than drawing the conclusion that the informant is credible and admittedly less than stating the facts as to why the past information has proven to be "true and correct", it still is a factual statement — not a conclusion of the affiant. We hold in this case that it is enough to enable a neutral magistrate to determine if the informant is credible.

There is substantial authority which holds general allegations such as those before us are sufficient. Gonzales v. State, 577 S.W.2d 226 (Tex. Crim. App), cert. denied, 444 U.S. 853, 62 L. Ed. 2d 71, 100 S. Ct. 109 (1979); State v. Caldwell, 25 N.C. App. 269, 212 S.E.2d 669 (1975); see also [966]*9661 W. LaFave, supra at 515 n.59-68. In Aguilar v. Texas, supra, the Supreme Court distinguished and approved of an affidavit which it upheld in Jones v. United States, 362 U.S. 257, 268, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960). The Jones affidavit alleged that the informant '"has given information to the undersigned on previous occasion and which was correct". This type of allegation informs the magistrate why the affiant believed the informant to be reliable. It states a fact and is more than a bare assertion or conclusion. Accord, United States v. Harris, 403 U.S. 573, 29 L. Ed. 2d 723, 91 S. Ct. 2075 (1971).

The Court of Appeals, however, felt that the statements in the affidavit were conclusory and thus insufficient to support the contentions of the informant's reliability. State v. Fisher, supra. We disagree. When the affidavit is viewed as a whole in a nontechnical manner it is nonconclusory and bears enough information to support the issuance of a valid warrant. When faced with reviewing the totality of the affidavit and, as in the present case, we lack an adequate record, we must ask what a reasonable person could conclude.

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Bluebook (online)
639 P.2d 743, 96 Wash. 2d 962, 1982 Wash. LEXIS 1254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fisher-wash-1982.