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Washington v. Canady

May 2, 1991

THE STATE OF WASHINGTON, RESPONDENT,
v.
EDWARD NELSON CANADY, PETITIONER



En Banc. Dolliver, J. Dore, C.j., and Utter, Brachtenbach, Andersen, Durham, Smith, Guy, and Johnson, JJ., concur.

Author: Dolliver

Edward Canady, convicted of possession of marijuana with intent to manufacture or deliver, challenges the validity of the search warrant that led to his arrest. He asserts (1) the warrant was not supported by probable cause, and (2) the judge who issued the warrant lacked lawful authority to do so, because the department in which he sat was not properly created. These challenges were presented at every opportunity, starting with a pretrial motion to suppress. Canady was convicted on stipulated facts, and the Court of Appeals affirmed the conviction in an unpublished opinion. State v. Canady, noted at 57 Wash. App. 1064 (1990). We reverse Canady's conviction because the warrant was issued without authority of law. We therefore need not, and do not, reach the probable cause issue.

In July 1987, Seattle police officers applied for a warrant to search Canady's home for evidence of a marijuana growing operation. A search warrant was issued, the expected items were found, and Canady was arrested. At a pretrial motion to suppress, Canady asserted that (1) the affidavit for search warrant did not satisfy the veracity prong of the Aguilar-Spinelli test, and (2) for various reasons, the court department from which the warrant issued had no legal existence. The trial court denied the motion to suppress and found Canady guilty on stipulated facts. The stipulation expressly preserved Canady's right to appeal the pretrial decisions. The Court of Appeals affirmed, and we granted review.

The warrant in this case was issued by a pro tempore judge sitting in Department 4N of the Seattle Municipal Court. At that time, Department 4N was a night court, operating in the Department 4 courtroom, but handling

matters from various departments. In 1987, Department 4N had not been created "by ordinance" in accordance with RCW 35.20.020. Canady argues Department 4N was not validly created until August 1989, more than 2 years after his arrest, and therefore the warrant which led to his arrest was invalid.

Canady asserts that In re Eng, 113 Wash. 2d 178, 776 P.2d 1336 (1989) resolved in his favor the question whether Department 4N was legitimate. We agree. The Eng decision involved a challenge to the validity of Departments 4, 5, and 7 of the Seattle Municipal Court, which were not properly created pursuant to the procedural requirements of the Seattle City Charter. Departments 4 and 5 were specifically mentioned in Seattle Municipal Code (SMC) 3.33.040(A)(2), as the Seattle City Charter requires, see Eng, at 189-91, and therefore we held they "[we]re legitimate, albeit belatedly," because "adequate notice" of their creation existed. Eng, at 191. However, we added, "the same cannot be said for Department 7", Eng, at 191, because it was not mentioned in the Seattle Municipal Code.

[1] Department 4N was not explicitly at issue in the Eng case, but it is analogous to Department 7. In Eng, we stated:

RCW 35.20.200 allows for the appointment of [pro tempore] judges "in the absence of" or "in addition to the regular judges". The word "judges" is central here: it has a different meaning than the word "departments." The City has used the judge pro tempore not in addition to the regular judges, but in addition to the regular departments, and in so doing allows him to function as a separate department. This is beyond the scope of RCW 35.20.200. The use of the word "departments" in RCW 35.20.100 -- in relation to the City's legislative body creating them -- indicates that the Legislature was aware of the distinction between these two words.

(Footnote omitted.) Eng, at 194. The foregoing discussion applies equally to Department 4N.

Indeed, at oral argument in the Court of Appeals, the State admitted that "Department 4N was analogous to Department 7 in the Eng case". In keeping with that comment, the Court of Appeals noted in its opinion that "[r]espondent concedes that Department 4N of the Seattle Municipal Court was not properly created." State v. Canady, slip op. at 7. Moreover, in response to the Eng decision, the Seattle Municipal Code was amended and both Department 7 and Department 4N were created. The amendment explicitly stated two new departments were necessary and that the amendment was in response to Eng. See Seattle City Ordinance 114655 (amending SMC 3.33.040). These facts, in conjunction with the Eng decision, critically undermine the State's argument that Department 4N was not really a separate department and therefore did not need to be created independently.

[2] In Eng, we "conclude[d] that the City can only appoint judges pro tempore to serve in an already validly created department under an elected judge. . . . Because Department 7's function is beyond the scope of the judge pro tempore statute, its actions are invalid." Eng, at 195. By the same reasoning, ...


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