State v. Woodall

McInturff, C.J.

(dissenting) — I must dissent from my brethren on the adequacy of the instant search warrant. More than conclusions are required before a neutral and detached magistrate can properly evaluate the affidavit. Because police informants often have an incentive to gain the police's good graces by furnishing information of dubious veracity, courts have applied stringent tests for determining whether an informant's statements establish probable cause. The majority's position does not comport with the recognized tests to validate the warrant.

*415An affidavit in support of a search warrant generally contains hearsay information, and the constitutional criterion for determining probable cause is measured by the 2-pronged Aguilar test. In Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964), the Court established a standard for determining probable cause where the supporting evidence comes either wholly or partially from informants. The affidavit supporting the warrant request must meet two conditions: (1) it must describe facts which would lead a neutral magistrate to believe that the informant is a generally reliable witness; and (2) it must establish facts which would convince the magistrate that in this particular case, the informant's information is correct, and not based on unwarranted conclusions, or misobservations, by him.

In Aguilar, the police affidavit11 supporting the search warrant request stated merely that a reliable informant had reported narcotics were concealed in a particular premises. The Court held that the affidavit failed to demonstrate probable cause in two respects: (1) it did not state facts which would show the magistrate that the informant was generally reliable and (2) it did not tell how the informant came upon his information.

Although the instant affidavit is more particularized, it is nonetheless defective under the Aguilar test. Here, the affidavit stated:

Affiant's belief is based on the following:
A reliable informant who has proven to be reliable in the past has given information to Duane Golphenee that he/she has been in the house within the last twelve hours and has personally observed marijuana being used in the house. The informant is familiar with the appearance of marijuana.

*416Arguably, the second prong is satisfied since the informant personally observed marijuana being used in the residence. However, I have serious doubts relating to the threshold inquiry, i.e., would a neutral and detached magistrate have sufficient facts, not merely conclusions, to discern the reliability of the informant?

Although the instant affidavit indicates the informant "has proven to be reliable in the past", it provides no underlying facts from which a neutral magistrate can independently assess the informant's credibility. In 1 W. LaFave, Search and Seizure § 3.3 (1978), it is stated at pages 518-19:

[A]n allegation that the affiant has previously received correct information upon a certain subject is inadequate, for it does not indicate that the informant now being relied upon was the source of that information.
If the furnishing of good information in the past contributes to a belief in an informant's credibility, the furnishing of bad information in the past would certainly derogate therefrom. The policeman who works with an informant knows of his full batting average, not just of his successes. If a magistrate is furnished, selectively, with half-truths, he is intellectually crippled in terms of making the informed judgment contemplated by the fourth amendment.

(Footnote omitted.) The instant affidavit is too general to establish reliability. In United States v. Townsend, 394 F. Supp. 736 (E.D. Mich. 1975), the court determined that characterizing someone as an "established reliable informant" was not enough. See also Armour v. Salisbury, 492 F.2d 1032 (6th Cir. 1974); Byars v. State, 259 Ark. 158, 533 S.W. 2d 175 (1976). Professor LaFave's treatise also notes the following:

"Previously reliable informer," "informer of proven reliability," "informer who has given accurate information in the past" — these vague phrases hint at a consistent history of reliability, but are really highly ambiguous. The instances of inaccurate information may have outnumbered instances where the informa*417tion proved correct. The information may have led directly to an arrest and conviction or may only have served as a vague lead which later was verified in some particulars but not in others. * * *
The "reliable information in the past” recital * * * lacks any factual indication of how reliable the informer is. The magistrate is, in effect, relying upon the factual determination of the arresting officer that the informer is sufficiently reliable, and not upon his own independent judicial determination. This does not square either with the Aguilar demand for "underlying circumstances" or with the requirement that the essential facts supporting the assertion of probable cause be made known to the reviewing magistrate. . . . Judicial acceptance may tempt officers to make superficial averments of reliability without proper support; and some officers, while they may be above wholesale fabrication, may not be adverse to some stretching of the truth on occasion.

(Some italics mine.) 1 W. LaFave, Search and Seizure, supra at 516-17. See also State v. Fisher, 96 Wn.2d 962, 969, 639 P.2d 743 (1982) (Utter, J., dissenting).

In Fisher our Supreme Court recently dealt with a similar issue; however, that case is distinguishable. There, probable cause for the warrant was based on the following affidavit:

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.

*418Fisher, supra at 964. The majority of the court maintained reliability was supported by a factual statement indicating the past information supplied by the informant had proven to be "true and correct". Here, the instant affidavit merely noted the informant had been "reliable in the past". As previously set forth, this type of conclusionary statement does not enable a neutral magistrate to determine reliability through a factual presentation. Such a bare conclusion, without more, precludes any magistrate from drawing his own conclusions regarding the informant's reliability. Since the first prong of the Aguilar test remains unsatisfied, the warrant was invalid and the evidence seized inadmissible.

I would reverse.

Reconsideration denied August 9, 1982.

Review granted by Supreme Court January 20, 1983.

The affidavit for the search warrant in Aguilar stated: "'Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.'" Aguilar, supra at 378 U.S. 109.