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State v. Cardwell

September 9, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
JOSEPH B. CARDWELL, APPELLANT.



Appeal from Superior Court King County. Docket No: 93-1-05632-6. Date filed: 01/25/94. Judge signing: Hon. Faith Enyeart Ireland.

Authored by Faye C. Kennedy. Concurring: Ronald E. Cox, C. Kenneth Grosse.

The opinion of the court was delivered by: Kennedy

KENNEDY, A.C.J. -- Joseph Cardwell appeals his conviction of one count of possession of marijuana with intent to manufacture. Cardwell contends that the trial court erred in denying his motion to suppress evidence seized during the execution of a search warrant at his residence because: (1) the affidavit in support of the warrant was insufficient to establish probable cause; (2) the officers violated the knock and announce rule codified at RCW 10.31.040; and (3) he was unlawfully arrested without probable cause. We disagree and conclude that the motion to suppress was properly denied. Cardwell also contends that the evidence considered by the court during his stipulated trial was insufficient to support a guilty verdict. Because Cardwell has failed to provide a sufficient record to enable us to review the sufficiency of the evidence, we decline to reach the merits of this issue and affirm his conviction.

FACTS

On August 23, 1993, Detective Miles Hawkes of the Seattle Police Department applied for a warrant to search a residence in Seattle. The affidavit in support of the search warrant stated:

That sometime within the last 48 hours I met with a confidential and reliable informant with whom members of the Seattle Police Department have been working with [sic] for over 6 months. During this time the informant has proven reliable in the following manner[:] by furnishing names, addresses, and detailed information of people who are currently trafficking in controlled substances that I have been able to verify this information through police files and/or personal knowledge by making in excess of 06 controlled buys of substances which field tested positive for the presence of a controlled substance. These controlled buys have resulted in over 03 search warrants, the recovery of illegal narcotics, weapons, and money, as well as numerous narcotics arrests. That this informant is familiar with controlled substances through several years of use and association with persons who use/sell controlled substances. During this controlled buy the informant was first checked for money, narcotics, and narcotics paraphernalia. After found to be free of these items the informant was given a quantity of money and directed to buy a controlled substance at; 348 N.E. 53rd. I observed as the informant approached this location. The informant contacted no person(s) on the way to or from the location. The informant states that upon knocking on the door, it was answered by the suspect; a white male approx 23 yoa; 510; 160; who identified himself to the informant as "Dave". Once inside the location the informant was sold an amount of a controlled substance in exchange for the pre recorded narcotics buy money. The informant then left the address and returned directly to me. I performed a field test and received a positive result for the presence of a controlled substance. The informant was again checked and was found to be free of any money or contraband.

The informant stated that the suspect was in possession of an additional amount of narcotics and was told to return for more. I am a Seattle police officer with over 9 years experience and have worked in the narcotics field for over five years. I have participated in the service of over 250 search warrants, and made more than 300 hand to hand narcotics transactions. I have also completed the Drug Enforcement Administration narcotic school[.] Clerk's Papers at 35-36.

Finding that there was probable cause to believe that a violation of the Uniform Controlled Substances Act had occurred, and that evidence of the violation was concealed in the residence, Judge Inveen issued a warrant directing officers to "seize, if located, the following property or person(s):

CONTROLLED SUBSTANCES, NARCOTICS PARAPHERNALIA, ITEMS USED IN THE WEIGHING AND PACKAGING OF CONTROLLED SUBSTANCES, PAPERS OF DOMINION AND CONTROL OVER THE PREMISES . . ." . Clerk's Papers at 34.

At approximately 11 p.m. on August 23, eight Seattle police officers and a sergeant, all dressed in raid uniform, assembled to execute the warrant. The residence was situated on a hill, requiring the officers to climb several flights of stairs before it was visible. After climbing the stairs, Officer Devore noticed that the porch light was on and that lights were on inside the house, as well. Devore approached the front door, pounded loudly, and announced: "Seattle Police with a search warrant. Open the door." Report of Proceedings at 11.

Hearing no sounds inside the residence following his announcement, Devore waited about seven or eight seconds then rammed the door. Devore testified that the total time that elapsed between the knock and the ramming of the door was "no less than ten seconds, but probably more like 12 or 13." Report of Proceedings at 17-18. Other officers at the scene testified that Devore waited approximately eight to fifteen seconds before ramming the door. Sergeant Bray, who supervised the execution of the warrant, testified that a Seattle Police Department policy specifies a delay of eight to ten seconds, and that Devore acted within the policy in ramming the door.

Upon entering the residence, officers discovered two women standing in the living room. In accordance with Seattle Police Department procedure, both women were handcuffed and taken into custody. During a search of the residence, officers discovered a small marijuana grow operation in a room in the basement. Officers also discovered narcotics paraphernalia in almost every room of the residence. Approximately ten to fifteen minutes after the forced entry, Cardwell entered the residence. Walking about "halfway in" the living room, Cardwell inquired: "What's going on?" Report of Proceedings at 47. Upon Officer McGlashan's order, two officers handcuffed Cardwell and took him into custody. McGlashan advised Cardwell of his Miranda *fn1 rights. Cardwell acknowledged that he understood his rights, but did not request an attorney.

When McGlashan asked Cardwell if he lived in the house, Cardwell responded that he did and that his room was the one in the basement. Shortly thereafter, another officer came up from the basement and reported that thirteen or fourteen marijuana plants were growing in the basement. McGlashan testified that "Cardwell, who was sitting on the couch, spoke up and said 12." Report of Proceedings at 50.

On August 26, 1993, the King County Prosecutor filed an information charging Cardwell with one count of possession of marijuana with intent to manufacture, in violation of RCW 69.50.401(a)(1)(ii). At the same time, the Prosecutor filed a sworn Certification of Determination of Probable Cause which stated: "The Washington State Patrol Crime Laboratory analyzed the plants and found that they contained marijuana, a controlled substance." Clerk's Papers at 2.

On December 6, 1993, Cardwell filed a motion to suppress evidence seized during the execution of the search warrant. Cardwell argued: (1) that the affidavit in support of the search warrant failed to establish the informant's basis of knowledge because it did not specify which "controlled substance" the informant claimed to have purchased; (2) that the officers violated the knock and announce rule by failing to wait for a reasonable amount of time before forcefully entering the residence; and (3) that he was unlawfully arrested without probable cause.

Following a hearing, the trial court denied Cardwell's motion to suppress. The court concluded: (1) that the search warrant affidavit was sufficient to establish probable cause to search the residence; (2) that the officers complied with the knock and announce rule; and (3) that Cardwell's detention was proper.

On December 7, 1993, Cardwell waived his right to a jury trial and agreed to a trial based on stipulated facts. Following the trial, the court found Cardwell guilty of possession of marijuana with intent to ...


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