(dissenting)—The constitutional protection against unreasonable searches and seizures5 is not a gift bestowed at the pleasure of a benevolent government upon a grateful populace. It is a fundamental and cherished liberty inherent in the idea of a free society. The courts stand as a bulwark protecting the citizen from abuse of the power entrusted to public servants. Judges have a special duty to be solicitous of the claims of citizens who have been *88harmed by the overreaching of the government.
In the context of a criminal prosecution, evidence seized during an unreasonable search in violation of the constitution cannot be used against the accused. Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, 84 A.L.R.2d 933 (1961). A corresponding protection in the civil context requires an avenue of redress where the privacy of our citizens has been invaded by an unreasonable police intrusion.
While it is difficult to balance the legitimate interests of those authorized to enforce the criminal law with the equally (if not more so) legitimate interests of our citizens to be secure from unsolicited intrusions into the privacy of their homes, I feel the majority has tipped the scale too far in the direction of unfettered law enforcement conduct by holding that the Turngrens' claims do not merit a trial. Such a holding can only encourage those who would seek to abolish the hard-won protections from the abuse of governmental power which are embodied in our Bill of Rights.
The facts are simple. Late in the evening, after hours of planning, acting on information from a lone informant subject only to slight, if any, corroboration, the heavily armed King County SWAT team surrounded the Turngren residence, cordoned off the area, evacuated the neighbors, and executed a search warrant seeking automatic weapons, bombs, and drugs. The search warrant was obtained on affidavit made by two police detectives. After several hours' search, finding no contraband, the police departed, leaving the middle-aged Turngrens and their young daughter to clean up the mess and explain to their friends and neighbors, if they could, what had happened.
The Turngrens brought suit against King County and the City of Redmond, alleging improprieties in the processing of the search warrant and violation of their civil rights, causing them damage including mental distress, medical problems, loss of reputation, and humiliation. The trial court granted summary judgment to the defendants, in effect finding that the Turngrens would not be entitled to relief even if their factual allegations were assumed to be *89correct. The majority affirms that finding.
I believe that the record in this case justifies a trial on the Turngrens' tort and civil rights claims and would remand for trial on those counts. The record demonstrates genuine issues of material fact sufficient to survive summary judgment.
Malicious Prosecution6
The majority affirms the summary judgment as to the common law tort claims because in its opinion the Turngrens failed to "raise a reasonable inference of malicious or reckless conduct on the part of the detectives". While it is true that malice is one of the key elements of malicious prosecution, the other being want of probable cause, Peasley v. Puget Sound Tug & Barge Co., 13 Wn.2d 485, 125 P.2d 681 (1942), it is well established in our law that the element of malice may be inferred by the trier of fact from the want of probable cause, Ladd v. Miles, 171 Wash. 44, 17 P.2d 875 (1932); Ton v. Stetson, 43 Wash. 471, 86 P. 668 (1906), or from proof of reckless disregard of the rights of the plaintiffs. Peasley, at 502. The abandonment of prosecution, uncontroverted in this cause, is prima facie proof of lack of probable cause, which in turn permits an inference of malice. Pallett v. Thompkins, 10 Wn.2d 697, 118 P.2d 190 (1941); Noblett v. Bartsch, 31 Wash. 24, 71 P. 551 (1903).
The record before the trial court raises a genuine issue of material fact concerning reckless if not intentional misrepresentations and omissions by the detectives in their affidavit in support of the search warrant. First, the detectives failed to set out all of the material facts giving rise to their determination of probable cause. While the affidavit relates that the informant stated he personally viewed weapons and drugs at the Turngren residence, it fails to relate important facts surrounding the circumstances of the giving *90of the informant's tip. The affidavit gives the impression that the informant voluntarily came forward to assist the police with information concerning criminal activity. In actuality, the informant's statements, given in response to police questioning about his own criminal activity, could be construed as an effort to exculpate himself and turn police interest away from his own crimes.
On October 25, 1978, a Redmond police detective was contacted by a person to whom the informant allegedly had sold a .38 caliber pistol. The Redmond detective contacted a King County Police detective who ascertained that the pistol had been stolen from a King County residence. The Redmond and King County detectives then contacted the informant, and after reading him the Miranda7 warnings interrogated him about the stolen pistol. It was only then that the informant told the detectives that he knew where other firearms were located in the Juanita-Kirkland area.
None of this history appeared in the affidavit for the search warrant, nor was it related to the magistrate who signed the warrant. The failure of the detectives to reveal to the magistrate the basis for the informant's cooperation is highly significant. It indicates a reluctance on the part of the detectives to relate facts which might have resulted in a denial of the warrant pending further investigation.
Second, the affidavit also greatly overstates the informant's prior track record. The affidavit reads in relevant part:
that your affiant has discussed the reliability of the said confidential informant with [the Redmond detective] present with me during the making of this affidavit, who has indicated that in the past three months the said informant has given him information relating to stolen property which has led to the recovery of $250 in stolen property and confessions of crime by three parties involved; that [the Redmond detective] has indicated that he has known the informant for approximately one *91year and a half, that during that time he has received more than 10 reports on criminal activity in the Redmond /Bellevue area which were personally verified by him through regular police channels independent of said informant; that [the Redmond detective,] a police officer for two and a half years has indicated belief on the basis of the duration and nature of his relation to the informant, the candor of the informant in discussing that person's history, the repeated verification of the informant's information, and the lack of any false information given by the informant in the past one and one-half years that the said information given by the informant is reliable information.
(Italics mine.) The record indicates, however, that the statements concerning the informant's prior reliability were exaggerated and misleading.
The Redmond detective, at his deposition, described in detail8 his relationship with the informant which began in the spring of 1977 with a routine stop. Then in November 1977 the informant and one of his friends were arrested by the Redmond detective and charged with felony auto theft, having been identified by the owner of the car. Each blamed the other for the theft. The informant told the detective where the car had been left in Oregon.9 Four days later the informant indicated that he could possibly get the detective information on other criminal activity in the area. The auto theft charges, which were filed as taking and riding, were further reduced and the informant pleaded guilty to a misdemeanor.
The next contact with the informant was in December *921977 when the informant told the detective that a friend of his was carrying a concealed firearm in his car without a permit. The friend was stopped by coincidence the next day for a traffic violation and his car searched, but no weapon was found. The friend stated that he had a firearm permit but did not have it with him. No further investigation was made of this suspect. The Redmond detective stated in his deposition that although no weapon was found, he felt that the fact that the suspect did not have his gun permit on his person was corroborative of the informant's story that he had lost it.
In January 1978 the informant told the detective that an early model Corvette automobile had been stolen in the Kirkland area and gave him the name of an alleged thief. The detective verified that such a car had been stolen, there being a notice with an illustration of the car on the bulletin board at the police department, and informed the Kirkland police of the informant's information. At his deposition the Redmond detective stated that as far as he knew, no further investigation was made and no charges were ever filed in connection with this incident.
Also in January 1978 the informant told the Redmond detective that he could get large quantities of amphetamines, having seen "a pillow of speed" at a residence in Redmond and smoked marijuana there. The detective arranged with his superiors to get money for the informant to arrange a "buy," but before anything further could transpire, the informant told the detective that his friends suspected him of talking to the police and he would not go back to the house. The detective attempted to verify the address in a reverse telephone directory but there was no listing for the address which the informant had given him. The detective drove by the house once. No further investigation was made and the informant's story was never verified.
In February 1978 the informant reported that the friend without the gun permit was now carrying his concealed weapon again. No investigation was made at that time, but *93in October 1978 the suspect reapplied for a weapons permit, stating that he had lost his prior permit.
In relating his contacts with the informant over the next few months of 1978, the detective stated in his deposition: "In the time period I would say between March, throughout the summer into August, he'd call me occasionally with information that—different information that I couldn't verify because it wasn't important to us." In August 1978 the informant told the detective that he knew where there was stolen property and identified six juveniles as responsible for the thefts. The detective accompanied the informant into a wooded area where they found a camera and some cassette tapes.
The questioning of the Redmond detective at his deposition as to his prior contacts with the informant concluded with this last incident, but it seems safe to assume that unless the informant was very busy between August and October 1978 there was little other information provided to the detective prior to the incident which resulted in the search of the Turngrens' residence. On this record the only verified information given to the detective was that an individual had lost his firearm permit, that a Corvette had been stolen, and that some juveniles had been involved in petty thefts. No charges were ever brought; no arrests were ever made.
The affidavit in support of search warrant, indicating that the informant gave "more than ten reports on criminal activity in the Redmond/Bellevue area which were personally verified" by the detective, is grossly misleading when compared with the informant's actual track record, and contains significant omissions as to the informant's own prior criminal activity known to the detective. It also fails to set out the informant's interest in cooperating with the police.
These misstatements and omissions are not corrected by the fact that the informant was brought before the magistrate issuing the warrant. The Redmond detective in his deposition says he is not sure that the informant was asked *94any questions by the magistrate. On the face of the affidavit itself is a handwritten statement by the judge: "informant present and," which indicates, to me at least, that the judge intended to question the informant but did not. The King County detective states that the informant was asked only about his prior knowledge of weapons and his concern for his personal safety and that the Redmond detective gave no further background information in response to a question from the magistrate, but merely stated his conclusion that the informant was reliable.
The importance of full disclosure of the facts relating to the informant's reliability is underscored by the seriousness of his accusations and the fact that the detectives obtained minimal independent corroboration of the informant's story. Prior to applying for the warrant, the detectives had the informant point out in a picture book the weapons he had seen and the police verified that someone named "Keith" lived at the Turngren residence, but no further independent investigation of the material facts was made.
The prima facie want of probable cause, together with the discrepancies between the informant's track record as set out in the affidavit and in the deposition, permit an inference of malice sufficient to survive summary judgment. Ladd v. Miles, 171 Wash. 44, 17 P.2d 875 (1932). The determination of a person's state of mind, in this case the presence or absence of malice, is ordinarily for the trier of fact and not for the court at summary judgment. Preston v. Duncan, 55 Wn.2d 678, 349 P.2d 605 (1960).
Civil Rights Violation Under 42 U.S.C. § 1983
The majority holds that the record fails to permit an inference that the alleged reckless disregard for the rights of the Turngrens resulted from official King County policy or practice. In my view the facts and the expert opinion before the court would warrant a reasonable person to infer reckless disregard of constitutional rights resulting from official practice and policy.
The trial court had before it the affidavit of Robert di *95Grazia, former police commissioner of Boston, Massachusetts, who had reviewed the record in the case and the relevant prevailing police procedures and standards. His affidavit states his expert opinion that the affidavit for search warrant mischaracterizes the reliability of the informant, that the police inadequately investigated the background of the Turngrens prior to the raid, that lack of supervision by higher-ranking officials permitted lower-ranking personnel to "usurp" authority and responsibility for checking the accuracy of the information received, and that the police displayed reckless disregard for the Turngrens' rights in obtaining and serving the warrant.
An affidavit containing an expert opinion on an ultimate issue of fact may create a genuine issue of material fact sufficient to preclude summary judgment. Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 588 P.2d 1346 (1979). Di Grazia's affidavit raises such an issue by stating that the practices of the King County Police resulted in violation of the Turngrens' Fourth Amendment rights.
Having shown genuine issues of material fact, the Turngrens should have their day in court. I would reverse and remand for trial.
Accordingly, I dissent.
Reconsideration denied October 12, 1982.
Remanded to the Court of Appeals August 12, 1983.
U.S. Const. amend. 4 reads in pertinent part: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ..."
Article 1, section 7 of the Washington State Constitution states:
"Invasion of private affairs or home prohibited. No person shall be disturbed in his private affairs, or his home invaded, without authority of law."
For clarity's sake, I refer to all nonconstitutional claims arising from the alleged misstatements in the affidavit for search warrant as a single "malicious prosecution" claim. See Ladd v. Miles, 171 Wash. 44, 17 P.2d 875 (1932).
Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966).
Although the majority states that "counsel for the Turngrens chose to question the Redmond detective on some but not all of some ten instances evincing the informant's past reliability," the record shows that the questions were of the form "what's the next time you had a discussion with the informant?" and the final incident given was in August 1978, only 2 months prior to the search at Turngrens'. It is reasonable to infer, though counsel never specifically asked, that the detective related the incidents in chronological order.
In his deposition, the detective characterizes the informant's statements as to the location of the car he stole and the culpability of his friend in the theft as the first pieces of reliable information received from the informant.