Petrich, J. Worswick, C.j., and Alexander, J., concur.
In consolidated trials, jury verdicts of guilty for the manufacture of marijuana and for the possession of marijuana were returned against Sherri Estorga and Donald Quackenbush. Thereafter, Quackenbush's conviction of possession was merged into the conviction for the manufacture of marijuana. His verdict was vacated and a new trial ordered because the trial court concluded that a hearsay statement lacking the required indicia of reliability had been introduced against him and had violated his right to confront the declarant. The trial court ruled that as to Estorga, the introduction of the hearsay statement was harmless error. Judgments were entered against Estorga for both offenses.
Estorga appeals, claiming that evidence obtained pursuant to the search warrant should have been suppressed because the supporting affidavit failed to establish the veracity of the informant. In the alternative she claims that
the information supplied by the informant was in violation of the informant's rights protected by article 1, section 7 of the Washington Constitution. The State appeals the grant of a new trial to Quackenbush, claiming that his right to confront the hearsay declarant was not abridged.
Two issues are presented in Estorga's appeal. The first is whether the named informant's statement in support of an application for a search warrant, which implicates the informant in the criminal activity and which was given in exchange for a promise of leniency, demonstrated the informant's veracity as required by Aguilar-Spinelli.*fn1 The second is whether Estorga may successfully assert a violation of the informant's right to privacy protected by article 1, section 7 of the state constitution so as to exclude evidence against her. The issue presented in the State's appeal is whether the introduction of the hearsay statement of a declarant, unavailable for trial, that arguably lacks the special indicia of reliability required to satisfy the right of confrontation, violates that right when the declarant testified and was subject to cross examination at an earlier suppression hearing attended by the defendant.
We conclude that the named informant's statements satisfy the veracity requirement of Aguilar-Spinelli and that Estorga is not entitled to the exclusion of evidence purportedly seized in violation of another's privacy rights as protected by article 1, section 7 of the state constitution. We also conclude that Quackenbush's right to confront the unavailable declarant was satisfied by the fact that Quackenbush was present with his attorney at an earlier proceeding when the declarant was under oath and there subject to
cross examination. Accordingly, we affirm Estorga's conviction and reverse the grant of a new trial for Quackenbush.
The Clark County Sheriff's office received an anonymous tip of a major marijuana grow operation in that county. Undersheriff Songer had been told that Charles Knight and his girl friend, Kimberly Moore, had knowledge of the operation and knew who the major participants were.
Undersheriff Songer contacted Ms. Moore on the pretense of an unrelated forgery charge pending against her in which she had requested representation by an attorney. He advised Moore of her Miranda rights.*fn2 Instead of discussing the pending charge, Songer asked Moore about the marijuana grow operation and the identity of its operators. Moore ultimately provided information that became the basis of a warrant for the search of Charles Knight's residence.
According to Knight, the search was superficial. As soon as Songer located amphetamines and marijuana of the type and in the location that Moore had described, the search ceased. Songer told Knight that he wanted information regarding the marijuana grow operation and, in exchange, Songer would not charge Knight with possession of the amphetamines or marijuana. Knight was taken to the sheriff's office. There, with the approval of the prosecuting attorney, an "Agreement of Understanding" was entered into whereby in exchange for information concerning the grow operation and cooperation in the form of testimony, if necessary, Knight would not be charged or prosecuted for his involvement in the operation or for possession of contraband seized at his residence. Knight gave an unsworn statement to Songer that was electronically recorded. Knight's statement implicated both Quackenbush and Estorga, as well as himself in the grow operation. Quackenbush was identified as the one conducting the operation, while Estorga kept records and resided on the premises.
Songer relayed the facts described by Knight to the magistrate by a sworn statement. The magistrate issued a search warrant, having determined that probable cause of criminal activity existed and ...