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UNITED STATES v. SPEAKS

November 17, 1986

UNITED STATES OF AMERICA, Plaintiff
v.
JERRY K. SPEAKS; EUGENE H. THOMASON: RONALD T. HARSTAD; KATHLEEN R. HUDSON; CATHRYN M. OLSOWSKI; LENORE A. LEE, Defendants



The opinion of the court was delivered by: QUACKENBUSH.

On October 30, 1986, the court held a hearing on defendants' motion to suppress evidence. Plaintiff was represented by Assistant United States Attorney James B. Crum. Defendant Jerry K. Speaks appeared personally and through his attorney Peter Offenbecher. Defendant Eugene H. Thomason was present and represented by Daniel J. Keane. Carl Diana appeared on behalf of defendant Ronald T. Harstad. Defendant Kathleen R. Hudson appeared in person and was represented by Richard B. Kayne. Philip Wetzel appeared on behalf of defendant Cathryn M. Olsowski, and defendant Lenore A. Lee was represented by Gene E. Hamilton.

 Defendants seek to suppress evidence of a methamphetamine laboratory which was seized from a trailer motel room. Pursuant to a warrant issued by a lay state court judge, local enforcement officers conducted the search leading to the seizure. As grounds for the challenge, defendants assert that the affidavit in support of the warrant contained statements made falsely or with reckless disregard for the truth and that it failed to establish probable cause for the issuance of the warrant. Defendants also contend that the officers failed to comply with the knock and announce requirements for executing a search warrant. Defendants base their challenge on both the state and federal constitutions.

 It is undisputed that the warrant in question was obtained from a state court judge solely at the behest of state officials. Although there was testimony at the hearing that the local officers originally intended to wait for the arrival of federal agents before executing the warrant, they in fact conducted the search on their own in response to indications that the individuals in the trailer might be leaving. Some telephone contact between a local police officer and a representative of the United States Drug Enforcement Agency did occur during surveillance prior to obtaining the warrant. Still this court finds that, as a practical matter, there was no federal participation in this operation but rather it was undertaken solely pursuant to state authority. The facts of this case thus present an issue admittedly unresolved in this circuit, that is whether the court must analyze a motion to suppress evidence seized by state officials without any federal intervention under the state, in addition to the federal, constitution.

 In Elkins v. United States, 364 U.S. 206, 4 L. Ed. 2d 1669, 80 S. Ct. 1437 (1960), the Court did away with the "silver platter doctrine" by holding that evidence seized by state officials in violation of the federal constitution could not be used in a federal prosecution. The present inquiry, however, is not whether this court must evaluate evidence seized by state officers in terms of the Fourth Amendment, but whether the court must also determine if it was obtained in violation of the state constitution.

 In United States v. Henderson, 721 F.2d 662, 664 (9th Cir. 1983), the Ninth Circuit expressly stated that the present question is undecided. The resolution of the issue in Henderson differed from that raised by this case in that the Henderson court evaluated the sufficiency of an affidavit for a search warrant which, among other statements, contained information allegedly obtained in violation of state and federal law. The court found that it need not address the question of which law, state or federal, applied because even if the evidence was obtained in violation of either law, the affidavit presented a sufficient basis for a probable cause finding absent the offending material. Id. at 665. Nonetheless, in dicta, the court stated

 
we believe that it would undercut the deterrent function of a state's exclusionary rule if state officers were able to turn illegally seized evidence over to federal authorities whenever they suspected the subject of the investigation of an offense susceptible to federal, as well as state, prosecution. We think there is much to be said for the argument that federal courts should, in the interest of comity, defer to a state's more stringent exclusionary rule with respect to evidence secured without federal involvement.

 The circuit has expressed a similar view in previous cases. United States v. Cordova, 650 F.2d 189, 1980 (9th Cir. 1981) ("The admissibility in federal court of evidence seized by state officers is governed by state standards, subject to limitations imposed by the federal constitution."); United States v. Orozco, 590 F.2d 789, 792 n.11 (9th Cir. 1979) ("The traditional rule in this circuit has been that a search and seizure by state officers must be judged by both state and federal standards in federal prosecutions."); United States v. Fisch, 474 F.2d 1071, 1075 (9th Cir. 1973) (The stop of a vehicle made by state officials "is governed by state law, subject, of course, to constitutional standards.") In light of this guidance from the circuit and the absence of any controlling authority, this court concludes it must analyze the sufficiency of this affidavit under both state and federal law.

 Because the analysis mandated under Article 1, Section 7 of the Washington constitution is more demanding than the federal standard, the court will begin its analysis with the Washington constitution. *fn1" Although the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983), rejected the traditional Aguilar-Spinelli analysis in favor of a totality of the circumstances standard, the Washington Supreme Court subsequently declared that the former two-prong test would still be applied to affidavits challenged under the state constitution. State v. Jackson, 102 Wash. 2d 432, 437, 688 P.2d 136 (1984). To satisfy the initial "basis of the knowledge" prong "the officer's affidavit must set forth some of the underlying circumstances from which the informant drew his conclusion so that a magistrate can independently evaluate the reliability of the manner in which the informant acquired his information . . . ." Id. at 435. The "veracity" determination requires that "the affidavit must set forth some of the underlying circumstances from which the officer concluded that the informant was credible or his information reliable." Id. In order to uphold a search warrant under Washington law, the court must find that the affidavit satisfied both aspects of this standard. Id. at 437.

 The relevant portion of the affidavit in this action provides:

 
That your Affiant's belief is based upon the following facts and circumstances: Informant "A" advised affiant within the previous week that "A" was aware of an operation to manufacture "crack" or "speed" (amphetamines or methamphetamine) at a trailer at Leisure Village in Omak, Washington. "A" indicated that "A" was told this by a person staying the trailer. "A" attempted to make a controlled buy at the trailer on the early morning of August 20, 1986. "A" was told by a participant in the operation, residing at the motel, that the persons in the trailer were still cooking "crack" and didn't have a finished product yet. "A" detected a strong odor of ether coming from the vicinity of the suspect trailer. Affiant corroborated the presence of this odor at the trailer area.
 
"A" recontacted the participant at the motel a few hours later and was told that the trailer occupant had stopped "cooking" because they needed a quantity of isopropanol to be obtained when the stores in Omak opened. "A" indicated the odor of ether was gone. Affiant verified the absence of the ether odor at this time, and observed the participant at the motel, identified by "A", go to downtown Omak and return with a package. "A" then returned a few hours later and learned that the trailer occupants were still cooking, and "A" could smell the ether odor again. The presence of the odor was verified by affiant.

 This court is faced with a situation in which the informant obtained his information through third parties. The Washington court addressed a similar circumstance in State v. Smith, 28 Wash. App. 387, 624 P.2d 191 (1981). The affidavit questioned in that case provided

 
Within the last 72 hours affiant has been in contact with a confidential informant who stated that he/she could purchase heroin from the above subject James Smith by going through a third party. The informant stated that the third party would be met at a location on the east side and the informant would give this person money to purchase heroin. The third party ...

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