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Washington v. Duncan

filed: March 28, 1996.

STATE OF WASHINGTON, APPELLANT,
v.
JAMES ALLEN DUNCAN, RESPONDENT.



Appeal from SUPERIOR COURT YAKIMA COUNTY. Superior Court No: 92-1-01959-6. Date filed in Superior Court: 1/22/93. Superior Court Judge signing: SUSAN HAHN.

Dennis J. Sweeney, Philip J. Thompson & John A. Schultheis, concur

Author: Sweeney

SWEENEY, C.J.--The State appeals a trial court order suppressing marijuana found in a public storage facility rented by James Allen Duncan. It contends that the court did not appropriately defer to the judge issuing the search warrant, erroneously determined that Mr. Duncan had an expectation of privacy in his storage unit, and erroneously concluded that the veracity prong of Aguilar-Spinelli had not been met. Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). We conclude that Mr. Duncan had no expectation of privacy in the storage records, but that the affidavit in support of the search warrant did not satisfy the Aguilar-Spinelli veracity prong nor was the independent police investigation sufficient. We, therefore, affirm the trial court.

FACTS

On October 22, 1992, the Yakima County District Court issued a search warrant to search a storage unit rented to Mr. Duncan. Detective Mike Merryman supplied the information supporting the warrant by a telephone affidavit. Officer Bill Guyer had given Detective Merryman the information.

The affidavit included the following. Meda K. Hansen, Mr. Duncan's girl-friend, told Officer Guyer about a domestic dispute. She said that two hours earlier she had accompanied Mr. Duncan to Irwin Storage. There, Ms. Hansen

saw Mr. Duncan take approximately 14 ounces of marijuana from the storage unit. Mr. Duncan told Ms. Hansen that the storage unit contained 20 pounds of marijuana. A fight started because of the marijuana; Mr. Duncan pulled her hair. Officer Guyer saw red marks on Ms. Hansen's face and loose hair. The Yakima Police Department received a report of an assault at 6:06 p.m. Ms. Hansen lied about her name. Her real name is Sara DaVee. Officer Guyer spoke to Betty Arnold, Irwin Storage's manager. She confirmed that Mr. Duncan rented a unit and that his code showed entry into the facility at 5:59 p.m. and exit at 6:03 p.m.

Detective Merryman also said that a prior investigation targeted Mr. Duncan resulting in Mr. Duncan's arrest for growing a large quantity of high quality marijuana. Based on this information, a judge issued a search warrant for the storage unit that Mr. Duncan rented. The police found approximately 19 ounces of marijuana.

The State charged Mr. Duncan with possession of a controlled substance, marijuana, with intent to deliver. He moved to suppress the marijuana. The court found that Mr. Duncan had a right to privacy in the records of Irwin Storage. The court also omitted Ms. DaVee's information finding that it was not credible and uncorroborated. It then concluded the remaining information in the affidavit was not sufficient to support a finding of probable cause and suppressed the marijuana found in the storage unit. The court then dismissed the case. The State appeals.

Discussion

Trial Court's Standard of Review. The State first argues that the trial court was not sufficiently deferential to the issuing judge. A court reviews a search warrant's validity for an abuse of discretion. State v. Estorga, 60 Wash. App. 298, 303, 803 P.2d 813, review denied, 116 Wash. 2d 1027, 812 P.2d 102 (1991). A magistrate's determination of probable cause is given great deference. ...


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