State v. Payne

Thompson, C.J.

(dissenting)—In State v. Mickle, 53 Wn. App. 39 , 765 P.2d 331 (1988), this court reversed a criminal conviction because an affidavit contained insufficient evidence to establish the reliability of an undisclosed informant. The affidavit at issue in this case is in all material respects identical, yet the majority reaches an opposite conclusion. I dissent.

The majority begins by recognizing that when an informant's tip forms the basis for a search warrant, the affidavit in support of the warrant must establish the informant's credibility. State v. Jackson, 102 Wn.2d 432, 433 , 688 P.2d 136 (1984); see Spinelli v. United States, 393 U.S. 410 , 21 L. Ed. 2d 637 , 89 S. Ct. 584 (1969); Aguilar v. Texas, 378 U.S. 108 , 12 L. Ed. 2d 723 , 84 S. Ct. 1509 (1964). The majority also recognizes that because the informant in this case was present in the house, apparently at Mr. Payne's invitation, the State is not entitled to the presumption of reliability accorded a true citizen informant, i.e., "an uninvolved witness or victim of a crime". State v. Rodriguez, 53 Wn. App. 571, 574 , 769 P.2d 309 (1989). The majority errs, however, when it concludes an informant's credibility is somehow enhanced by the fact, without more, that the police knew his identity. 2 As we observed in Rodriquez, at *248 576, identification of an informant is "merely a factor to be considered in determining whether [he] is truly a citizen informant ..." The majority treats the informant's unexplained presence at the scene of a crime as a "single omission" in the probable cause formula, without recognizing the critical nature of this inquiry. It is precisely because of the suspicious circumstances of the informant's tip that the law requires an additional demonstration of credibility. The mere fact the officers knew who an informant was, without more, cannot satisfy this requirement.

[I]f the person giving the information to the police is identified by name but it appears that this person was a participant in the crime under investigation or has been implicated in another crime and is acting in the hope of gaining leniency, then the more strict rules regarding the showing of veracity applicable to an informer from the criminal milieu must be followed.

(Footnotes omitted.) 1 W. LaFave, Search and Seizure § 3.4(a), at 726-27 (2d ed. 1987) (quoted in Rodriguez , at 576).

In State v. Franklin, 49 Wn. App. 106, 109 , 741 P.2d 83 , review denied, 109 Wn.2d 1018 (1987), we rejected an affidavit that forced the issuing magistrate to rely solely on the officer's conclusions as to the informant's credibility. The majority attempts to distinguish Franklin by contending in that case there was no clear indication the officer knew the identity of the informant. Although I view the difference as insignificant, I note that in Franklin , at 109, we specifically treated the informant as one whose identity was "known to the police but not revealed to the magistrate". The cases are not factually distinguishable on that basis.

The majority does not address specific items in the affidavit that purportedly demonstrate the informant's credibility. Nor does it distinguish these credibility factors from those specifically rejected in Mickle , at 43:

[T]he facts used to establish the informant's credibility were not related to the issue of credibility. Even though a citizen may own a business and/or property or may be a longtime resident of a particular county, this information *249 does not provide the magistrate with a sufficient basis upon which to judge the informant's credibility.

The majority attempts to avoid Mickle by contending the court there "assumed" insufficient evidence of credibility. A careful reading of the case demonstrates the court addressed the credibility issue before moving on to the issue of independent police corroboration. Both issues were fairly raised in the case, and the court necessarily decided both.

The deficiencies of the affidavits in Franklin and in this case call to mind the basic concept underlying the Aguilar-Spinelli test:

[T]he determination of probable cause to issue a warrant must be made by a magistrate, not law enforcement officers who seek warrants. 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. Spinelli , at 412-16; Aguilar , at 110-15.

State v. Jackson, supra at 436-37 .

The majority also concluded probable cause was established by independent police investigation. The majority cites Jackson , at 438, in which the court stated:

[I]f the informant's tip fails under either or both of the two prongs of Aguilar-Spinelli, probable cause may yet be established by independent police investigatory work that corroborates the tip to such an extent that it supports the missing elements of the Aguilar-Spinelli test. Spinelli , at 417; Illinois v. Gates, [462] U.S. [213, 268], 76 L. Ed. 2d 527 , 103 S. Ct. 2317, 2347-48 (1983) (White, J., concurring); 1 W. LaFave § 3.3(f). The independent police investigations should point to suspicious activity, '"probative indications of criminal activity along the lines suggested by the informant". United States v. Can-ieso, 470 F.2d 1224, 1231 (2d Cir. 1972); Rebell, The *250 Undisclosed Informant and the Fourth Amendment: A Search for Meaningful Standards, 81 Yale L.J. 703 , 716 (1972). Merely verifying "innocuous details", commonly known facts or easily predictable events should not suffice to remedy a deficiency in either the basis of knowledge or veracity prong. See, e.g., United States v. Montgomery, 554 F.2d 754, 757-58 (5th Cir. 1977); Spi-nelli, at 414; 1 W. LaFave § 3.3(f); Rebell, at 715-20; Kamisar, Gates, "Probable Cause," "Good Faith," and Beyond, 69 Iowa L. Rev. 551 , 558-66 (1984). Corroboration of public or innocuous facts only shows that the informer has some familiarity with the suspect's affairs. Such corroboration only justifies an inference that the informer has some knowledge of the suspect and his activities, not that criminal activity is occurring. Corroboration of the informer's report is significant only to the extent that it tends to give substance and verity to the report that the suspect is engaged in criminal activity. Note, The Informer's Tip as Probable Cause for Search or Arrest, 54 Cornell L. Rev. 958 , 967 (1969); Kamisar, at 567.

See State v. Murray, 110 Wn.2d 706, 712 , 757 P.2d 487 (1988).

The majority first relies on a tip from the Washington State Patrol 6 months earlier. The patrol's teletype notice apparently refers to the dwelling at issue here, and mentions Mr. Payne's name. The tip was obtained in a call to the patrol's drug hotline; the teletype notice refers to a possible reward for the unnamed informant. In State v. Huft, 106 Wn.2d 206, 208 , 720 P.2d 838 (1986), the court noted such a tip will not satisfy either the basis of knowledge or the credibility prongs of the Aguilar-Spinelli test. Also, the age of the information clearly raises an issue of staleness. Finally, the majority concedes the informant was invited to the house by Mr. Payne, as the tipster must have been as well. These circumstances raise the possibility— even a likelihood—that the informant is the same person who had called the hotline 6 months earlier. Surely an informant's credibility cannot be corroborated by his own confidential tip given in anticipation of collecting a reward.

*251 The majority also relies on investigative information the officers collected a month after receiving the State Patrol tip. I have difficulty agreeing with the majority's conclusion that the house was vacant or abandoned. 3 The officers' affidavit actually stated the deputies talked with one neighbor, who was not sure if anyone lived there, but saw people come and go occasionally. In these circumstances, signs of traffic in the driveway and lights shining inside the house are innocuous, unsuspicious details, as is the presence of tall weeds outside a rural dwelling.

Finally, the majority relies on evidence of power usage at the home. The affidavit stated the electricity bill for the month of November was $11 higher than for the previous year, and usage had been "relatively high" throughout the summer. The affidavit did not establish a correlation between increased electricity use and illegal activity. See State v. Sterling, 43 Wn. App. 846, 851 , 719 P.2d 1357 , review denied, 106 Wn.2d 1017 (1986). More significantly, the affidavit provides only a conclusory showing of the increase. The $11 difference may be explained in a variety of plausible, unsuspicious ways. See Huft, at 211. Nothing in the affidavit explained what was meant by "relatively high" power use during the summer. Several cases have refused to find adequate corroboration in evidence of significant increases in electricity use. In Huft , at 208, 211, for example, the court held a 46 percent increase was insufficient. See Murray, at 710, 712 (200 percent increase, without more, may be innocuous); State v. White, 44 Wn. App. 215, 217 , 720 P.2d 873 (1986) (200 percent increase insufficient), review denied, 107 Wn.2d 1020 (1987); Sterling , at 851 (400 to 500 percent increase sufficient only in combination with other suspicious factors); State v. McPherson, 40 Wn. App. 298 , 698 P.2d 563 (1985) (200 to 300 percent increase insufficient).

*252 The majority's reliance on the other information provided in the affidavit is unfounded. The additional facts failed to provide probative indications of criminal activities along the lines suggested by the informant.

I would follow established case law and affirm the trial court's decision to suppress the evidence.

Reconsideration denied June 20, 1989.

Review denied at 113 Wn.2d 1019 (1989).

This "fact" itself is far from certain. Like the trial court, I find it difficult to conclude from the affidavit that the officers knew who the informant was. The mere fact the informant came to the police voluntarily creates no such inference.

The trial court's conclusion of law 2 states in part: ''[T]here was no showing that the [electricity] consumption was unusually high, nor was there any showing that the premises either were or were not occupied as a residence."