State v. Chenoweth

¶61 The majority holds a prosecutor may negligently misrepresent or omit facts concerning an informant's reliability. I disagree. Under article I, section 7 of our state constitution "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." This constitutional right can be properly safeguarded only if the affidavit informs the magistrate of the true underlying circumstances. Without the truth, a magistrate cannot correctly evaluate whether probable cause exists, and any warrant he authorizes lacks the requisite authority of law.

¶62 Article I, section 7 of our state constitution requires a higher degree of protection than its federal counterpart — the Fourth Amendment. State v. Myrick, 102 Wn.2d 506, 510, 688 P.2d 151 (1984) ("[T]he unique language of CONST. art. 1, § 7 provides greater protection to persons under the *Page 485 Washington Constitution than U.S. CONST. amend. 4 provides to persons generally"). We place greater emphasis on ensuring an informant's veracity and reliability — indeed we have said these factors are essential to our interpretation of article I, section 7. When the United States Supreme Court adopted a less-stringent standard regarding an informant's tips in Illinois v. Gates,23 we noted the "principal difference between the Gates approach and the Aguilar-Spinelli24 rule is that `veracity' and `basis of knowledge', while still relevant, are no longer both essential." State v. Jackson, 102 Wn.2d 432, 435, 688 P.2d 136 (1984). We therefore rejected the Gates approach and instead adhered to the Aguilar-Spinelli test specifically because Gates did not sufficiently emphasize the veracity and reliability of the informant. Jackson,102 Wn.2d at 440 ("We are not persuaded by the United States Supreme Court's rationale for departing from the Aguilar-Spinelli standard. Furthermore, it is inapplicable in the context of CONST. art. 1, § 7 analysis.").25 In particular, we said: *Page 486

To perform the constitutionally prescribed function, rather than being a rubber stamp, a magistrate requires an affidavit which informs him of the underlying circumstances which led the officer to conclude that the informant was credible and obtained the information in a reliable way. Only in this way (as the Court emphasized in Aguilar and Spinelli) can the magistrate make the proper independent judgment about the persuasiveness of the facts relied upon by the officer to show probable cause.
Jackson, 102 Wn.2d at 436-37. This same reasoning requires us to adopt a more stringent standard regarding not; only the informant's trustworthiness but also the affiant's trustworthiness. Both the informant's veracity and basis of knowledge are essential to our analysis but become moot if the prosecutor or officer misrepresents the underlying facts or circumstances. "Probable cause is established when an affidavit supporting a search warrant provides sufficient facts for a reasonable person to conclude there is a probability the defendant is involved in the criminal activity." State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002). But the magistrate cannot determine if there is probable cause when the affidavit misinforms him of the underlying circumstances; the magistrate cannot judge whether the informant was credible or obtained the information in a reliable way. Only by ensuring the magistrate is presented with truthful and complete information can he make a proper and independent judgment and act with authority of law.

¶63 Other jurisdictions that allow defendants to challenge warrants where material information was either negligently misstated or omitted also premise their decisions on the same sound rationale that a magistrate cannot make a correct determination when he is presented with false information.

However, if a magistrate is presented with false or inaccurate information in an application for a warrant, the inferences he draws from such information are not based on reality but on the fantasies of the misinformed or misinforming affiant. *Page 487 Regardless of whether misstatements are intentionally false or the product of reasonable or unreasonable cerebration, their ineluctable result is an adverse effect upon the normal inference-drawing process of the magistrate.

Theodor v. Superior Court, 8 Cal. 3d 77, 96, 501 P.2d 234,104 Cal. Rptr. 226 (1972);26 see also State v. Worrall, 1999 MT 55,293 Mont. 439, 447, 976 P.2d 968 ("If inaccurate or misleading information is included in that application, it must be excised from the application regardless of whether that information was included mistakenly, negligently or intentionally."); State v. McManus, 267 Or. 238,248, 517 P.2d 250 (1973) ("We conclude that the defendant can contest the accuracy of or the negligent mistake in an affidavit by a motion to suppress before trial without first filing a motion to controvert as provided by statute."). Furthermore, the supreme courts of California and Pennsylvania explicitly based their holdings on the United States Supreme Court's language in Spinelli and Aguilar, which we continue to follow.27

¶64 The majority claims holding a prosecutor to at least a negligence standard would create an unworkable system: *Page 488 "A negligence standard goes too far in requiring police to assure the accuracy of the information presented. . . ." Majority at 475.28 But it is not "unworkable" to demand the State at the very least act reasonably. A negligence standard does not demand an exhaustive investigation as the majority seems to suggest; it only asks whether the affiant (be it the prosecutor or the officer) knew or reasonably should have known either a statement was false or there was additional relevant information. Someone is negligent when he does not act as a reasonable person would under similar circumstances. Here the prosecutor only needed to check the record — both the informant's criminal history and her own files, since she remembered dealing with the informant in the past — but failed to take even these rudimentary steps.

¶65 Furthermore, the majority claims "the warrant process itself reduces the risk of an erroneous search or arrest by interposing a neutral and detached magistrate between the citizen and the officer. . . ." Majority at 478. But the warrant process is an ex parte proceeding, and it is for want of the usual procedural protections provided by the usual adversarial setting that mandates a strict standard of truthfulness. The defendant, whose privacy right might potentially be violated, is not present at the warrant proceeding, and therefore the magistrate must rely entirely upon the facts as presented by the State.See Commonwealth *Page 489 v. Hall, 451 Pa. 201, 205 n. 5, 302 A.2d 342 (1973) ("Commentators have noted that further review of the affidavits supporting a warrant is necessary because of the ex parte, exigent circumstances of the initial issuance of the warrant."). A magistrate cannot act with authority of law unless the State accurately presents all relevant information. The majority draws an artificial line between recklessness and negligence, and it neither defines those terms nor offers a principled reason why it arbitrarily delineates between the two standards. By enforcing a warrant premised upon misstatements and material omissions, the majority tarnishes the integrity of the judiciary itself.

¶66 I dissent.

23 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (adopting a totality of the circumstances test to determine an informant's reliability).
24 Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584,21 L. Ed. 2d 637 (1969).
25 Unlike Gates, which looks to a totality of the circumstances, theAguilar-Spinelli approach demands a more methodical and searching inquiry into the informant's trustworthiness:

The two prongs of the Aguilar-Spinelli test have an independent status; they are analytically severable and each insures the validity of the information. The officer's oath that the informant has often furnished reliable information in the past establishes general trustworthiness. While this is important, it is still necessary that the "basis of knowledge" prong be satisfied — the officer must explain how the informant claims to have come by the information in this case. The converse is also true. Even if the informant states how he obtained the information which led him to conclude that contraband is located in a certain building, it is still necessary to establish the informant's credibility.

The most common way to satisfy the "veracity" prong is to evaluate the informant's "track record", i.e., has he provided accurate information to the police a number of times in the past? If the informant's track record is inadequate, it may be possible to satisfy the veracity prong by showing that the accusation was a declaration against the informant's penal interest.

Jackson, 102 Wn.2d at 437 (citations omitted).
26 As the majority notes, Theodor and its progeny were seemingly overruled when California voters passed Proposition 8 in 1982, which mandated "relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings."People v. Luttenberger, 50 Cal. 3d 1, 6 n. 1, 784 P.2d 633,265 Cal. Rptr. 690 (1990); see majority at 475 n. 18. Nevertheless, the California Supreme Court continues to cite to and enforce Theodor's holding. People v. Amador, 24 Cal. 4th 387, 393, 9 P.3d 993,100 Cal. Rptr. 2d 617 (2000); People v. Diaz, 3 Cal. 4th 495, 520,834 P.2d 1171, 11 Cal. Rptr.2d 353 (1992).
27 In Theodor, the California Supreme Court said:

The constitutional argument is primarily that the thrust of Aguilar v. Texas, supra, 378 U.S. 108, with its emphasis on the factual basis for an affiant's conclusion of probable cause, naturally presupposes correct, and not perjured or erroneous facts. "This principle is frustrated not only when a magistrate confronts conclusions rather than facts in the affidavit, but also when substantial falsehoods are the basis on which a magistrate must find the existence or absence of probable cause. In either case, the effect is to destroy the magisterial power to draw an inference from accurate, objective information."

Theodor, 8 Cal.3d at 90 n. 6 (quoting Jerry Schlichter, Comment, TheOutwardly Sufficient Search Warrant Affidavit: What If It's False?, 19 U.C.L.A. L.REV. 96, 108 (1971)). And in Commonwealth v. Hall, the Pennsylvania Supreme Court commented:

Rather, the right to challenge the truthfulness of recitals in a warrant follows from the command of Aguilar-Spinelli that the magistrate make a "detached and objective determination" of probable cause.

451 Pa. 201, 205, 302 A.2d 342 (1973) (quoting Commonwealth v. D'Angelo,437 Pa. 331, 338, 263 A.2d 441 (1970)). Finally, the Montana Supreme Court in Worrall noted the additional rationale of how difficult it is for a defendant to actually prove the affiant's state of mind. How will one be able to show whether a law enforcement officer negligently or intentionally misstated the facts? Worrall, 293 Mont. at 447.
28 The majority claims that a negligence standard "is inconsistent with the concept of probable cause, which requires not certainty but only sufficient facts and circumstances to justify a reasonable belief that evidence of criminal activity will be found." Majority at 475. This misconstrues the issue — we are not concerned with the accuracy of the magistrate's assessment of the facts but rather with the accuracy of the facts themselves. How can a magistrate form a reasonable belief if the facts and circumstances upon which he relies are lies and half-truths?