Appeal from Superior Court of Ferry County. Docket No: 95-1-00003-7. Date filed: 08/22/95. Judge signing: Hon. Fred L. Stewart.
Authored by Stephen M. Brown. Concurring: John A. Schultheis, Frank L. Kurtz.
The opinion of the court was delivered by: Brown
BROWN, J. In this matter we decide whether a search warrant affidavit based on information provided by an informant contained sufficient information to permit the issuing magistrate to determine the informant was credible. We also consider a challenge to the admissibility of physical evidence and a claim this prosecution violated double jeopardy. We find no error and affirm.
Ferry County Sheriff's Deputy Thomas Williams applied for a warrant to search property owned by Daniel Lutjemeier. The supporting affidavit was based in large part on information provided by an informant. The affidavit incorporated statements of Border Patrol Agent Alvin Bauman and United States Customs Agent Pete Warner, both of whom had participated in the investigation. The informant's name was known to Deputy Williams but not given to the issuing magistrate. The affidavit contained a detailed description of a marijuana growing operation including precise locations, the names of the suspects, the number of plants involved and their likely harvest date and value. The informant had given Agent Warner a small quantity of green vegetable matter allegedly taken from the growing operation. Deputy Williams tested the material and determined it was marijuana.
Following execution of the search warrant, Mr. Lutjemeier was charged with manufacturing a controlled substance. Marijuana plants seized in the search were placed in evidence at trial. Mr. Lutjemeier appeals his conviction following a bench trial.
Mr. Lutjemeier contends the information provided by the informant should not have been considered in determining the sufficiency of the affidavit. He argues it did not state circumstances from which the issuing magistrate could determine that the informant was credible. See State v. Jackson, 102 Wash. 2d 432, 688 P.2d 136 (1984).
An informant's veracity may be shown by his "track record" of providing accurate information in the past. Jackson, 102 Wash. 2d at 437. The informant "provided the [officer] with the names of at least four other suspects involved in narcotics activity and such information is consistent with what the [officer] knows of these four suspects . . . ." Clerk's Papers at 103.
Alternatively, veracity may be demonstrated by a combination of factors: a showing the informant's statements were made against penal interest; some corroboration; and identification of the informant as opposed to an anonymous tip. State v. Lair, 95 Wash. 2d 706, 630 P.2d 427 (1981).
The informant's statements to law enforcement officers included admission of having smoked marijuana and having participated in the marijuana growing operations. These were statements against penal interest. The informant's information was corroborated by further investigation. The officer determined the suspect had a criminal record involving controlled substances. Testing of the material provided to the officers by the informant proved it was marijuana. The officer observed that the windows at the alleged growing operation were covered with blankets, a circumstance indicative of marijuana growing. The informant's name and address were known to the officer who verified prior regular employment history and lack of a criminal record. The combination of these factors was sufficient to establish the informant's credibility.
Mr. Lutjemeier also contends the court should not have admitted the marijuana plants into evidence because the testimony was insufficient to establish a complete chain of custody. To be admissible as evidence of a crime, a physical object must be satisfactorily identified and shown to be in the same condition as when the crime was committed. State v. Campbell, 103 Wash. 2d 1, 691 P.2d 929 (1984); State v. Wilson, 83 Wash. App. 546, 555, 922 P.2d 188 (1996), review denied, Wash. 2d (Jan. 7, 1997). The trial court has wide discretion in determining the admissibility of physical evidence. Campbell, 103 Wash. 2d at 21. The nature of the object, the circumstances of its preservation, including custody, and the likelihood of tampering are factors to be considered in determining admissibility. Campbell, 103 Wash. 2d at 21. "The proponent need not identify the evidence with absolute certainty and eliminate every possibility of alteration or substitution." Campbell, 103 Wash. 2d at 21.
Law enforcement officials described the acquisition and labeling of the marijuana plants, their placement in the evidence room, the testing of the plants determining they were marijuana, and their continuing presence in the evidence room to the day of trial. The officer who documented physical evidence at the scene of the search testified the exhibits were the same items obtained in the search. There was no evidence presented to show how the plants got from the evidence room to the courtroom, although the prosecutor advised the court he had personally brought them. Although the testimony did not eliminate every possibility of alteration and substitution, it was sufficient to enable the court to conclude the plants were adequately identified. Concerns like these go to the weight, not the admissibility, of the evidence. There was no abuse of discretion.
Mr. Lutjemeier contends this criminal prosecution violates constitutional double jeopardy protection by reason of an earlier civil forfeiture proceeding. The imposition of a remedial civil sanction is not punishment for purposes of double jeopardy. United States v. Ursery, U.S., 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996); see State v. Lynch, 929 P.2d 460 (Wash. Ct. App. 1996). There was no double jeopardy violation.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed ...