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Washington v. Colin

April 30, 1991; As Amended May 15, 1991.

THE STATE OF WASHINGTON, RESPONDENT,
v.
PEDRO HERNANDEZ COLIN, APPELLANT



Munson, J., Green, C.j., and Thompson, J., concur.

Author: Munson

Pedro Colin appeals his conviction for possession of heroin, possession of cocaine, and three counts of delivery of a controlled substance (cocaine). He contends the affidavit given by the police officer in requesting the search warrant was insufficient in that it did not establish the credibility of the officer's informant, and the scope of the search of his person exceeded the scope of the search warrant. We affirm.

On February 16, 1990, Detective Glen Thompson applied for a telephonic warrant to search a residence in Pasco, Washington, and to search the person of a Hispanic male adult described as "approximately 24 years of age, 5'8", 155 to 160 lbs., clean shaven having neck length . . . black hair, and brown eyes." The supporting affidavit indicated the officer was relying on information provided by a confidential informant. The court authorized the warrant.

Pasco police officers executed the search warrant on the afternoon of February 16. On entering the residence, the officers encountered five persons, one of whom was Pedro Colin. He adequately matched the description in the warrant. After being frisked for weapons and advised of his rights, Mr. Colin was taken to another room, told to undress, and visually examined for contraband. The officers did not touch him during the course of the strip search. At oral argument it was disclosed heroin was found in Mr. Colin's underwear.

Mr. Colin's motion to suppress evidence discovered in the course of the search was denied. He appeals.

Mr. Colin contends the affidavit in support of the search warrant failed to establish the reliability of the confidential informant. If an informant's tip is relied upon to establish probable cause to issue a search warrant, the officer's affidavit must set forth underlying circumstances which support the conclusion the informant is credible or his information is reliable.*fn1 State v. Jackson, 102 Wash. 2d 432, 435, 688 P.2d 136 (1984).

A conclusory statement, which presents no underlying facts from which the issuing judicial officer could independently determine the informant's reliability, is insufficient. State v. Woodall, 100 Wash. 2d 74, 666 P.2d 364 (1983). Thus, the description "'[a] reliable informant who has proven to be reliable in the past'" was held insufficient in Woodall, at 76.

[1] State v. Fisher, 96 Wash. 2d 962, 965, 639 P.2d 743, cert. denied, 457 U.S. 1137 (1982) held a statement that the informant had given the officer information "proven to be true and correct in the past" was at least a factual statement, not a mere conclusion, and was sufficient to enable a magistrate to make an independent determination of reliability. A statement the informant has given information which led to arrests in the past establishes the informant's "track record" and is sufficient to satisfy the reliability requirement. State v. Wolken, 103 Wash. 2d 823, 827, 700 P.2d 319 (1985); State v. Freeman, 47 Wash. App. 870, 875, 737 P.2d 704, review denied, 108 Wash. 2d 1032 (1987).

The affidavit in this case contained the following statements:

The CI [confidential informant] has been established as a [ sic ] reliable through the course of this investigation. Based on information provided by the CI one arrest has resulted in this investigation. Also, the CI has provided information regarding other narcotics related investigations that have been proven as accurate by other detectives.

These factual assertions about the informant's track record meet or exceed the standards applied in Wolken, Woodall, and Fisher. The trial court properly ...


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