State v. Payne

773 P.2d 122, 54 Wash. App. 240, 1989 Wash. App. LEXIS 149

• Court: Court of Appeals of Washington
• Decided: May 25, 1989
• Docket: 9144-9-III
• Status: Published

Opinions

Shields, J.

The State appeals an order suppressing evidence seized during a search, terminating its prosecution of Patrick L. Payne. We vacate the order and remand for trial.

On May 19, 1987, Grant County sheriff's officers executed a search warrant at a rural dwelling near Warden, Washington. Evidence obtained in the search apparently formed the entire case against Mr. Payne, who was charged with manufacture of a controlled substance, RCW 69.50.401(a).

The warrant authorizing the search was obtained solely on the basis of an affidavit by Deputies Bryan Pratt and Michael Shay. This affidavit recited the following facts: The sheriff's office on October 17, 1986, had received a teletype notice from the Washington State Patrol regarding a possible marijuana grow operation at the dwelling. On November 28, 1986, deputies observed tall weeds outside the dwelling and noticed there had been some traffic in the driveway and lights turned on inside the house. Neighbors said they were not sure if anyone lived there. Deputies learned the power bill for November 1986 was approximately $11 more than the previous November, and power consumption had been "relatively high" all summer.

The affidavit also contained the following statement:

A citizen informant who wishes to remain confidential contacted me on 5/15/87 at approximately 2000 hours and he stated that within the past 3 weeks he was in the residence listed in this search warrant and did observe in the basement of the residence numerous growing marijuana plants. These plants were growing in wooden trays approximately 4x6 feet each tray had a grow type light over it. The citizen informant stated that he saw approximately 11 sets of trays. He also observed several fans. The citizen informant also stated that he had observed 2 persons in the basement, those persons being identified by the citizen informant as Pat Payne a white male, approximately 40 years of age, and Dick Carpenter, a white male, approximately 40 years of age. These two subjects are known on sight by the citizen informant. Citizen informant stated that he wished to remain confidential because he feared for his own safety. The reason being he had observed one of the subjects in possession of a firearm in the past. Citizen informant also stated that the plants were approximately 2 feet tall. Citizen informant also stated that there was no one living in the residence. The citizen informant stated he is familiar with marijuana and can identify marijuana due to the following experiences, which the citizen informant has relayed to the affiant.

A. The citizen informant has seen marijuana in growing and dry form. This due to experiences with a close relative in the past.

The information provided by the citizen is considered reliable because it has been supported by a previous intelligence report as stated in the affidavit, and information obtained by Dep. Mich[ael] Shay.

B. Citizen informant is a long time resident of Grant County.

C. Citizen informant is a property owner.

D. Citizen informant has no criminal history.

E. Citizen informant came to this officer voluntarily and with nothing to gain by giving this information.

After a hearing conducted pursuant to CrR 3.6, the trial court entered the following findings regarding disputed facts:

3. The Court is unable to conclude from the affidavit that the magistrate was provided the identity of the informant or that the affiant officers were provided the identity and address of the informant.

4. The Court is unable to conclude from the affidavit that the affiant officers confirmed the information given regarding the informant's residency, criminal history, property ownership, et cetera.

5. The information given by the informant to the affi-ant officers was three weeks old on the date of the affidavit.

The court concluded the affidavit did not sufficiently establish the informant's credibility, and that his information was too stale to establish probable cause. The State appeals, contending both factors were present based upon a reasonable inference that the identity of the informant was known to the affiant. We first address the credibility issue.

When a magistrate authorizes a search warrant, his determination is accorded great deference, State v. Cord, 103 Wn.2d 361, 366, 693 P.2d 81 (1985). A warrant should not be viewed in a hypertechnical manner, State v. Partin, 88 Wn.2d 899, 904, 567 P.2d 1136 (1977), and doubts generally should be resolved in favor of the warrant. State v. Walcott, 72 Wn.2d 959, 962, 435 P.2d 994 (1967) (quoting United States v. Ventresca, 380 U.S. 102, 109, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965)), cert. denied, 393 U.S. 890, 21 L. Ed. 2d 169, 89 S. Ct. 211 (1968). The only issue on appeal is whether the affidavit satisfied the second prong of AguilarSpinelli.1

The State contends the affidavit sufficiently established the informant's credibility, arguing the magistrate could draw a reasonable inference the informant was identified to the affiant and was credible. An informant's tip may establish probable cause to issue a search warrant when the affidavit in support of the warrant shows both the basis of the information and the credibility of the informant. State v. Jackson, 102 Wn.2d 432, 433, 688 P.2d 136 (1984) (citing Spinelli and Aguilar). This dispute focuses on the credibility prong of the Aguilar-Spinelli test; thus, we do not address the basis of knowledge prong.

The determination of credibility depends to some extent on whether the informant is truly a citizen informant, i.e., an innocent victim or an uninvolved witness to criminal activity. Here, the informant was present at an abandoned house and observed the grow operation, inferentially at the invitation of Mr. Payne. Thus, there is some hesitation on our part to conclude the informant was an innocent victim or an uninvolved witness. In State v. Chatmon, 9 Wn. App. 741, 515 P.2d 530 (1973) and State v. Singleton, 9 Wn. App. 327, 511 P.2d 1396 (1973) the informants were not only anonymous, but were not persons known to the police. In Chatmon, an informant contacted a Puget Sound Naval Shipyard police officer and related information regarding a male subject who appeared to him to have marijuana in his possession. Other than appearing personally, the unknown informant offered no other information regarding credibility, stating he did not want to get involved. The shipyard police officer relayed this information to the Bremerton police department which eventually stopped the vehicle which had been described by the unknown informant. The defendant was a passenger in the vehicle, in which the arresting officers observed baggies of marijuana. The defendant moved to suppress the evidence and the court agreed, ruling that there must be some information which would reasonably support an inference the informant was telling the truth. Chatmon, at 746. The court then qualified that rule with respect to the unknown informant who wishes to remain anonymous:

In making this evaluation, an ascertainment of the citizen's identity will almost invariably be necessary. However, should the citizen wish to remain anonymous, as here, his reliability could certainly be corroborated by description of him, his purpose for being at the locus of the crime, and the reason for his desire to remain anonymous.

(Footnote omitted.) Chatmon, at 748. Here, the affidavit discloses the informant "came to this officer voluntarily", thus there is an inference his identity was known to the officer, if not to the magistrate.

The State also argues the factors listed in the affidavit supporting credibility were sufficient, even given their con-clusory aspect. We first note that those same factors were cited in State v. Franklin, 49 Wn. App. 106, 107-08, 741 P.2d 83, review denied, 109 Wn.2d 1018 (1987) and rejected because of the lack of underlying information to support the affiant's conclusions as to credibility. However, there is no clear indication in Franklin that the officer knew the informant's identity. Thus, it can be distinguished from the facts here.

In State v. Mickle, 53 Wn. App. 39, 765 P.2d 331 (1988) the trial court's memorandum opinion concluded an inference existed that the identity of the informant was known to both the affiant and the magistrate. Mickle, at 41 n.1. Mickle, relying on Chatmon, rejected the finding of credibility, and granted the motion to suppress, reasoning that the informant, although identified, had failed to state both why the informant was present at the scene of a grow operation and why the informant wished to remain anonymous. Significantly, Mickle only assumed there was insufficient evidence to satisfy the credibility prong of Aguilar-Spinelli and proceeded to examine the sufficiency of evidence of independent police corroboration. Here, while the informant has failed to give a reason for his presence at the scene of a grow operation, he has indicated he wishes to remain anonymous because he feared for his own safety, having seen Mr. Payne or his companion in possession of a firearm.

The purpose for establishing the credibility of an informant is to insure accountability for the assertions made which implicate another in the commission of a crime, and to allow the magistrate an independent basis from which to determine if the police officer's conclusions regarding probable cause are correct. The factors present here do establish a basis for ascertaining credibility and imposing accountability except for the single omission regarding the informant's reason for being at the scene of the crime. However, presenting a reason for being at the scene of the crime is only one of many suggested factors which indicate credibility. Thus, we decline to impose it as a single, critical factor which must be met before credibility is established. See Mickle and Chatmon, which did examine the informant's reason for being at the scene of the crime, but which are distinguishable because of the court's assumption there was insufficient evidence of credibility (Mickle) or because the informant chose to remain anonymous (Chatmon).

Our analysis finds other confirming support in the record. Even though information may fail under either prong, probable cause may still be established by independent police investigation. Jackson, at 438; Mickle, at 41. Here, the affidavit references a tip 6 months earlier from the Washington State Patrol regarding a grow operation at the house. A month after this tip, the deputies investigated and observed tall weeds outside the house, noticed signs of traffic in the driveway, and lights on in the house. They questioned neighbors and learned the house was vacant. The electrical consumption was also relatively high for an unoccupied house. Because this earlier tip involved the identical house, stated the possibility of a similar grow operation, and named the same individuals, any perceived deficiency in the credibility of the informant's tip in May was independently corroborated by the earlier investigation.

We disagree with the trial court's conclusion the information was too stale to establish probable cause. State v. Petty, 48 Wn. App. 615, 621, 740 P.2d 879, review denied, 109 Wn.2d 1012 (1987). A marijuana grow operation is hardly a "now you see it, now you don't" event. A magistrate may look at all the circumstances, including the nature and scope of the suspected criminal activity. Petty, at 621; see generally 2 W. LaFave, Search and Seizure § 3.7(a) (2d ed. 1987). Here, the informant reported an extensive grow operation, involving approximately 11 4- by 6-foot trays, lights and fans. These facts clearly indicate the criminal activity was ongoing, and the issuing magistrate could reasonably infer the operation was continuing at the time. See State v. Hall, 53 Wn. App. 296, 300, 766 P.2d 512, review denied, 112 Wn.2d 1016 (1989); Petty, at 621-22; State v. Smith, 39 Wn. App. 642, 651, 694 P.2d 660 (1984), review denied, 103 Wn.2d 1034 (1985).

The trial court's order granting the motion to suppress is vacated and the cause is remanded for trial.

Green, J., concurs.

1 Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964); Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969).