State v. Walcott

435 P.2d 994, 72 Wash. 2d 959, 1967 Wash. LEXIS 881

• Court: Washington Supreme Court
• Decided: December 28, 1967
• Docket: 38975
• Status: Published

Opinions

Hunter, J.

This is an appeal by the defendant (appellant) , Irving James Walcott, from a conviction for the possession of marijuana. The assignment of error upon which the defendant primarily relies is to the trial court’s denial of the defendant’s motion to suppress certain evidence seized pursuant to a search warrant.

On November 5, 1965, at approximately 5 o’clock in the afternoon, King County Deputy Prosecuting Attorney Thomas A. Stang filed complaints for search warrants in the Seattle District Justice Court of magistrate Evangeline Starr. Seattle police detectives R. W. Waitt and A. L. Fawcett were present at this time.

In addition to the allegations of the respective complaints, oral testimony with reference to the propriety of issuing the search warrants was received by the magistrate. She determined that probable cause had been established for the issuance of search warrants for five locations in Seattle. In this case we are only called upon to determine the legality of search warrant No. 0297 issued by the magistrate for a search of the premises located at 5514% - 11th Ave. N.E., Seattle.

The complaint for search warrant No. 0297 was signed by Detective Waitt. The pertinent portion of the complaint reads as follows:

[T]hat affiant’s belief is based upon the following facts and circumstances: Received information from informant who was present when the marihuana was purchased in Mexico and brought to Seattle. Informant was present when the marihuana was brought to the house and has seen the marihuana in the house this date.

The informant was at the hearing before the magistrate. The police officers did not disclose her name and the state did not elect to have her testify under oath. The informant was not previously known to the officers and they had had no past experience with her. However, the officers testified under oath as to their testing of the reliability of her statements concerning the information furnished. The court questioned the informant as to the truth of statements she made to the officers. She affirmed the statements.

The residence at 5514% - 11th Ave. N.E. was searched at approximately 9 p.m., November 5, and about 30 pounds of marijuana were seized. Defendant Walcott resided at this address and was present at the time of the search. He was arrested after the discovery of the marijuana. The defendant prior to his trial moved to suppress the evidence seized, challenging the finding of probable cause for issuance of the search warrant.

In view of the fact that no written record was made of the hearing before the magistrate, affidavits of magistrate Starr, Deputy Prosecuting Attorney Stang and detectives Waitt and Fawcett were obtained. These affidavits purport to relate what occurred at the hearing on probable cause for issuance of the search warrants. They were considered on the motion to suppress evidence. A special hearing was then ordered by the trial judge in order to provide persons arrested in the aftermath of the searches an opportunity to examine the magistrate, the deputy prosecuting attorney and the detectives as to the contents of the affidavits and the proceedings before the magistrate. At this special hearing, the magistrate and the two detectives were examined and this testimony was transcribed. On February 3, 1966, based upon the affidavits and the transcript of the special hearing, the defendant’s motion to suppress the evidence was denied.

The defendant contends that the evidence adduced before the magistrate did not show probable cause for the issuance of search warrant No. 0297 as a matter of law under the fourth amendment to the United States Constitution.

In considering this contention it must be kept in mind that the question of whether probable cause justified the issuance of a search warrant should not be viewed in a hypertechnical manner. The United States Supreme Court emphasized this in United States v. Ventresca, 380 U. S. 102, 13 L. Ed. 2d 684, 85 Sup. Ct. 741 (1965), at 109:

[W]hen a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. (Citing case.) (Italics ours.)

In Aguilar v. Texas, 378 U. S. 108, 111, 12 L. Ed. 2d 723, 84 Sup. Ct. 1509 (1964), the court explained:

Thus, when a search is based upon a magistrate’s, rather than a police officer’s, determination of probable cause, the reviewing courts will accept evidence of a less “judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant,” ibid., and will sustain the judicial determination so long as “there was substantial basis for [the magistrate] to conclude that narcotics were probably present

In this case, the crucial factual issue is whether the information furnished by the unidentified informant was sufficiently reliable to support the magistrate’s determination of probable cause for the issuance of the warrant authorizing the search of the premises where defendant Walcott resided. The rule for testing the sufficiency of such information was stated in Aguilar, supra, at 114:

[T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, . . . was “credible” or his information “reliable.”

The evidence in the instant case to be considered in light of these rules is as follows:

Prior to the application for a search warrant, the unidentified informant voluntarily told officers Fawcett and Waitt of the Seattle Police Department that she had been present when a large quantity of marijuana was purchased in Mexico and brought to 5514% - 11th Ave. N.E. in the University District. She related that she had visited five addresses in the University District where she had seen marijuana and she gave the names of some of the persons living at these locations. Officers Fawcett and Waitt, in company with the informant, checked these addresses and found them to be identical with addresses which had been the subject of prior investigations concerning suspected trafficking in narcotics by persons who included those named by the informant. The officers repeated this information under oath to the magistrate, at the time of application for search warrants for these premises.

At the hearing on the defendant’s pretrial motion for suppression of the evidence, the information disclosed by officers Fawcett and Waitt to the magistrate was set forth in their affidavit as follows:

That on November 5, 1965 in the afternoon, a person came into the Narcotics Detail office and stated that this individual had some information to give us regarding the location of narcotics, LSD-25 and marihuana, in the University District in Seattle; that the informant was interviewed by both your affiants; that your affiants, after the interview contacted Deputy Prosecutor Thomas A. Stang for assistance in obtaining search warrants for the places mentioned by the informant; that Detective Fawcett went out with the informant to check the addresses of each of the places mentioned by the informant; that when Detective Fawcett and the informant returned, all went to the prosecutor’s office to discuss getting a search warrant; that after a discussion, the complaints were prepared and Deputy Stang, together with the informant and your affiants, went to Judge Starr’s Court to ask for the search warrant;

That your affiants were put under oath and Detective R. W. Waitt signed the various complaints; that your affiants then explained to Judge Starr what additional information your affiants knew about each of the addresses as follows:

Regarding 2303 N.E. 65th, Seattle, Washington, your affiants stated that this was the residence of Al Moss who had been suspected to be trafficking in dangerous drugs and narcotic drugs; that this information was obtained from reliable informants; that the house had been observed on previous occasions and suspected users of narcotics had been seen entering and leaving the premises;

Regarding 4243 11th N.E., Seattle, Washington, your affiants advised that the house was occupied by Paul Davis; that your affiants had received information from other reliable informants that Paul Davis was trafficking in narcotic and dangerous drugs; that Paul Davis drove a Meteor Hearse and was using his Hearse to carry narcotics;

Regarding 5514% Hth N.E., Seattle, Washington, your affiants advised that this was the residence of Irving Walcott, a partner in the Eigerwand Coffee House in the University District where many of the suspected drug users in the University District congregate; that Walcott and the Eigerwand had been suspected as a source of marihuana and dangerous drugs in the District since March of 1965 when it came to the attention of the Seat-tie Police Department from informants that both were involved;

Regarding 3818 - 4th N.E., Seattle, Washington, your affiants advised that one of the residents at this address was Peter Christofferson who had previously been arrested on suspicion of a narcotics offense involving marihuana, although not charged; that officers had observed suspected narcotics users in the past month entering and leaving the premises; ....

The magistrate submitted an affidavit at the same hearing containing the following:

That on the 5th day of November, 1965, she was asked by the Seattle Police Department and the King County Prosecutor’s Office to issue search warrants for the following addresses located in Seattle, King County, Washington: 5514% - 11th Avenue N.E., 102 Broadway East, 2303 N.E. 65th, 4243 - 11th Ave. N.E. and 3818 - 4th Avenue N.E.;

That prior to the issuance of the search warrants both Detective A. W. Fawcett and Detective R. W. Waitt were sworn on oath and gave testimony under the questioning of Mr. Stang and the undersigned; that the testimony elicited revealed that the informant was present when a large quantity of marihuana was purchased in Mexico; that the purchasers then proceeded by airplane to California, specifically the Berkeley area where some of the marihuana was left and about 600 capsules of a drug commonly known as LSD was purchased; that the party then came to the Seattle area with marihuana and that most of this marihuana was presently in a suitcase at 5514% - 11th Avenue N.E.; that the informant on the 4th day of November, 1965, had visited all the above addresses mentioned and seen quantities of marihuana at each of the places as well as drugs classified as dangerous drugs; that the detectives were asked specifically what information the Seattle Police Department Narcotics Detail had about each of the above listed addresses. As the warrants were each individually considered, the detectives explained who lived at the premises and who was seen entering and leaving the premises during the recent weeks; that although your affiant cannot remember specifically any names, the police reported that these were the same persons that the department had had trouble with in the University District Area of Seattle and each of them has been suspected of dealing with and using narcotic drugs; that the department had received reliable information from other reliable informants that these persons were involved in the unlawful drug activity in the university area;

Your affiant was introduced to the informant, although the name was withheld, and although not put under oath the informant was asked whether or not the informant had seen narcotics, specifically marihuana at the above addresses as per the statements of the detectives in their affidavits; that the informant replied, “yes”; ....

Considering the above affidavits in their entirety, which the trial court believed, we are satisfied that the sufficiency and reliability of the information given by the unidentified informant was adequate under the requirements established by Aguilar, supra, to justify the issuance of the warrants. (1) The underlying circumstances upon which the informant based her report were fully disclosed to the magistrate, and these circumstances included personal observation of the narcotics at the locations named. (2) The underlying circumstance demonstrating that the informant’s information was reliable was the police officers’ comparison of the names and addresses given by the informant with prior reliable information in possession of the police concerning persons and locations suspected of being involved in narcotics violations, and the coincidences disclosed by this comparison.

In every instance, the residents of the premises were suspicioned of trafficking in narcotics by reason of prior investigations of the officers. Some of the same individuals asserted to have been seen at these premises by the informant were these persons. This justified reliance on the reliability of the informant’s information.

It is contended, however, that the prior information that the defendant Walcott was suspected of trafficking in marijuana and dangerous drugs was furnished by untested informants. This is not supported by the record. The officers’ affidavit does not refer to these informants as untested or unreliable, and the magistrate’s affidavit conclusively shows that she was told by the officers that these informants were reliable. That portion of the affidavit reads:

As the warrants were each individually considered, the detectives explained who lived at the premises and who was seen entering and leaving the premises during the recent weeks; that although your affiant cannot remember specifically any names, the police reported that these were the same persons that the department had had trouble with in the University District Area of Seattle and each of them has been suspected of dealing with and using narcotic drugs; that the department had received reliable information from other reliable informants that these persons were involved in the unlawful drug activity in the university area; .... (Italics ours.)

If doubts are entertained as to the sufficiency of the information in this record to show probable cause justifying the issuance of the challenged search warrant, these must be resolved in favor of the validity of the warrant. United States v. Ventresca, supra; Aguilar v. Texas, supra.

The defendant contends, however, that the fourth amendment to the United States Constitution requires that the complaint or affidavits must show probable cause on their face before a search warrant may issue. The defendant concedes that the law of this state requires only an oath or affirmation to support a finding of probable cause. State v. Malbeck, 69 Wn.2d 695, 419 P.2d 805 (1966). He argues, however, that this state should follow the federal rule which requires that sworn statements in support of an application for a search warrant be reduced to writing.

Although the federal practice, which results in making and preserving a contemporaneous record of the proceedings before the magistrate, may be preferable; however, it is not a constitutional requirement under the Fourth Amendment. We adhere to our ruling in Malbeck and the cases cited therein.

The defendant further contends the evidence seized under the search warrant at 5514% - 11th Ave. N. E. was not in his possession, as it was not in the room he occupied; and that the remainder of the dwelling was not under his dominion or control. The evidence as to his control of the premises was in dispute. But there was substantial evidence in the record, which the jury was entitled to believe,, that the defendant was in charge of the entire premises in the absence of a Miss Leaf, who at the time of the seizure of the evidence, was in California. This contention is therefore without merit.

The defendant further contends the trial court erred in giving instruction No. 4, on the subject of constructive possession. This contention is also without merit, because the instruction correctly defined constructive possession as a person having dominion and control over the property alleged to be possessed. See State v. Spillman, 110 Wash. 662, 188 Pac. 915 (1920); State v. Parent, 123 Wash. 624, 212 Pac. 1061 (1923); State v. Johnson, 129 Wash. 62, 224 Pac. 602 (1924).

The defendant contends the court erred in failing to give his proposed instructions to the effect that the state must prove that the defendant knew of the existence of any marijuana found in his possession. The law of this state is to the contrary. Mere proof of possession is sufficient, absent a showing by the defendant that his possession was unwitting, authorized by law, acquired in a lawful manner, or otherwise excusable under the statute. State v. Henker, 50 Wn.2d 809, 314 P.2d 645 (1957); State v. Mantell, 71 Wn.2d 768, 430 P.2d 980 (1967).

We are satisfied the defendant received a fair trial in this case. The judgment of conviction on the verdict is affirmed.

Finley, C. J., Hill, Weaver, Rosellini, Hamilton, Hale, and Neill, JJ., concur.