72 Wn.2d 959, THE STATE OF WASHINGTON, Respondent, v. IRVING JAMES WALCOTT, Appellant
[No. 38975. En Banc. Supreme Court December 28, 1967.]
THE STATE OF WASHINGTON, Respondent, v. IRVING JAMES
WALCOTT, Appellant.«*»

Although the federal practice, which results in making and preserving a contemporaneous record of the proceedings before the magistrate, may be preferable; however, it is not a constitutional requirement under the Fourth Amendment. We adhere to our ruling in Malbeck and the cases cited therein.

The defendant further contends the evidence seized under the search warrant at 5514 1/2 - 11th Ave. N.E. was not in his possession, as it was not in the room he occupied; and that the remainder of the dwelling was not under his dominion or control. The evidence as to his control of the

968 STATE v. WALCOTT [72 Wn.2d 959

premises was in dispute. But there was substantial evidence in the record, which the jury was entitled to believe, that the defendant was in charge of the entire premises in the absence of a Miss Leaf, who at the time of the seizure of the evidence, was in California. This contention is therefore without merit.

[4] The defendant further contends the trial court erred in giving instruction No. 4, on the subject of constructive possession. This contention is also without merit, because the instruction correctly defined constructive possession as a person having dominion and control over the property alleged to be possessed. See State v. Spillman, 110 Wash. 662, 188 Pac. 915 (1920); State v. Parent, 123 Wash. 624, 212 Pac. 1061 (1923); State v. Johnson, 129 Wash. 62, 224 Pac. 602 (1924).

[5] The defendant contends the court erred in failing to give his proposed instructions to the effect that the state must prove that the defendant knew of the existence of any marijuana found in his possession. The law of this state is to the contrary. Mere proof of possession is sufficient, absent a showing by the defendant that his possession was unwitting, authorized by law, acquired in a lawful manner, or otherwise excusable under the statute. State v. Henker, 50 Wn.2d 809, 314 P.2d 645 (1957); State v. Mantell, 71 Wn.2d 768, 430 P.2d 980 (1967).

We are satisfied the defendant received a fair trial in this case. The judgment of conviction on the verdict is affirmed.

FINLEY, C. J., HILL, WEAVER, ROSELLINI, HAMILTON, HALE, and NEILL, JJ., concur.

DONWORTH, J. (dissenting) - In my opinion the majority, in its effort to sustain the validity of the search warrant issued in this case, overlooks the vital issue (alluded to by appellant in his brief, and urged before this court in oral argument) which requires that appellant's conviction be reversed. I, therefore, respectfully dissent.

The requirements for the issuance of search warrants is governed by the fourth amendment to the United States Constitution, which provides, in part, that:

Dec. 1967] STATE v. WALCOTT 969

[N]o warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The fourteenth amendment to the United States Constitution provides, in part:

No state shall . . . deprive any person of life, liberty, or property, without due process of law; . . . .

The Fourth Amendment is applicable to this state through the Fourteenth. Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081, 81 Sup. Ct. 1684 (1961); Ker v. California, 374 U.S. 23, 10 L. Ed. 2d 726, 83 Sup. Ct. 1623 (1963).

In addition, article 1, section 7, of the Constitution of Washington provides:

No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

It has been held that, although this latter provision differs very slightly in language from the fourth amendment to the United States Constitution, the two provisions are identical in purpose and substance. State v. Miles, 29 Wn.2d 921, 190 P.2d 740 (1948); Seattle v. See, 67 Wn.2d 475, 408 P.2d 262 (1965), rev'd on other grounds, 387 U. S. 541, 18 L. Ed. 2d 943, 87 Sup. Ct. 1737 (1967).

In Aguilar v. Texas, 378 U. S. 108, 114, 12 L. Ed. 2d 723, 84 Sup. Ct. 1509 (1964), the requirements of an application for a search warrant based, as in the present case, upon hearsay information, which are necessary to meet the requirements of the fourth and fourteenth amendments to the United States Constitution, were set forth as follows:

Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U. S. 257, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376

970 STATE v. WALCOTT [72 Wn.2d 959

U. S. 528, was "credible" or his information "reliable."«1»

Otherwise, "the inferences from the facts which lead to the complaint" will be drawn not "by a neutral and detached magistrate," as the Constitution requires, but instead, by a police officer "engaged in the often competitive enterprise of ferreting out crime," Giordenello v. United States, supra [357 U. S. 480, 2 L. Ed. 2d 1503, 78 Sup. Ct. 1245], at 486; Johnson v. United States, supra [333 U. S. 10, 92 L. Ed. 436, 68 Sup. Ct. 367], at 14, or, as in this case, by an unidentified informant. (Footnote omitted.) (Italics mine.)

In this case, the written complaint (set forth in substance in the majority opinion at page 961), when considered alone, clearly fails to state sufficient probable cause for the issuance of a search warrant. The magistrate is not informed thereby of any of the "underlying circumstances from which the officer concluded that the informant . . . was `credible' or . . . [her] information `reliable.'"«2»

It is only by the consideration of the written complaint, together with the affidavits signed by Detectives Waitt and Fawcett, Justice of the Peace Evangeline Starr, and Deputy Prosecutor Stang, which were prepared after a motion to suppress had been interposed by appellant, that the trial court and this court were and are able to find any semblance of probable cause to support the issuance of the search warrants in this case.

In Aguilar v. Texas, supra, the Supreme Court stated, in a footnote at page 109 of the opinion, that:

It is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate's attention.

«1» Justice of the Peace Starr testified at the superior court hearing, referred to on page 949 of the majority opinion, as follows: "Q. well, what did the police tell you that made you believe that she [the informant] was a person entitled to be believed?

A. Nothing.

Q. what did Mr. Stang tell you that made you believe she was entitled to be believed?

A. Nothing. I relief [sic] upon my observations." (Italics mine.)

«2» The informant, under oath at the hearing on the motion to suppress, denied having given information to the officers relating to three of the five addresses, and further denied having any knowledge at all regarding those three addresses.

Dec. 1967] STATE v. WALCOTT 971

Appellant incorrectly contends that such requirement is met only where consideration is limited to the face of the written complaint or affidavit for search warrant. This is the net effect of Fed. R. Crim. P. 41, 18 U.S.C.A., which is referred to in the majority opinion at page 955.

Rule 41 provides, in part:

(c) Issuance and contents. A warrant shall issue only on affidavit sworn to before the judge or commissioner and establishing the grounds for issuing the warrant.

It has been held that, under this rule, "affidavit" refers to a sworn statement in writing, and that, if sworn information was presented to the commissioner other than that contained in affidavits, such information could not be considered by him or by the reviewing court on motion for the return of property seized and to suppress such property for use as evidence. United States v. Birrell, 242 F. Supp. 191 (S.D. N.Y. 1965); Rosencranz v. United States, 356 F.2d 310 (1st Cir. 1966); United States v. Walters, 193 F. Supp. 788 (W.D. Ark. 1961). I agree, however, that this federal rule of criminal procedure is not applicable to criminal cases in this state, as is correctly pointed out in the majority opinion.

In this state, the magistrate is not limited to the written complaint for search warrant in determining the existence of probable cause. In Ladd v. Miles, 171 Wash. 44, 49, 17 P.2d 875 (1932), we said:

That all the facts going to show probable cause need not be stated in the affidavit or complaint, seems to be established by our own cases of State ex rel. Hodge v. Gordon, 95 Wash. 289, 163 Pac. 772; State v. Voelker, 137 Wash. 156, 242 Pac. 6, and State v. Noah, 150 Wash. 187, 272 Pac. 729; . . . .

And, in State v. Malbeck, 69 Wn.2d 695, 419 P.2d 805 (1966), it was held that a signed affidavit for a search warrant was not required, so long as the information contained in the unsigned document constituting probable cause was stated under oath.

However, even though the issuing magistrate is not limited to a consideration of the written complaint or affidavit

972 STATE v. WALCOTT [72 Wn.2d 959

under the law in this state (as he would be under Rule 41), but may consider oral testimony and such other evidence as may be presented to him at the time the warrants are sought, the question is whether or not there must be some form of contemporaneous record made of such evidence.

As appellant points out in his brief, in contending that Rule 41 should be applied:

The problem created by not requiring a writing is that a "swearing contest" then results as to what occurred before the magistrate.

Since no person is present before the magistrate except the police officer complainant a defendant is faced with a "chamber of mirrors" or "selective rememberance" problem in determining whether the magistrate actually had probable cause to issue the warrant.

The present rule allows the officers seeking the warrant to file affidavits as fast as the defendant can raise omissions thus precluding any appellate regulation of whether the magistrate acted properly in granting the complaint.

Unfortunately, there is a dearth of authority on the question of whether, in the absence of specific statutory requirement of a contemporaneous record or language in a state constitution which requires such a record, due process requires such a record. The reason for such a hiatus is obvious since in the federal courts, and in most states, when the question has arisen, such statutory or constitutional requirement does, in fact, exist.

My research has disclosed no authority in this state specifically requiring or not requiring some contemporaneous record. The question seems one of first impression in this court.

One state, Wisconsin, has considered the question absent specific statutory authority. In Glodowski v. State, 196 Wis. 265, 271, 220 N. W. 227 (1928), the Wisconsin Supreme Court stated that:

It is an anomaly in judicial procedure to attempt to review the judicial act of a magistrate issuing a search warrant upon a record made up wholly or partially by oral testimony taken in the reviewing court long after

Dec. 1967] STATE v. WALCOTT 973

the search warrant was issued. Judicial action must be reviewed upon the record made at or before the time that the judicial act was performed. The validity of judicial action cannot be made to depend upon the facts recalled by fallible human memory at a time somewhat removed from that when the judicial determination was made.

This record of the facts presented to the magistrate need take no particular form. The record may consist of the sworn complaint, of affidavits, or of sworn testimony taken in shorthand and later filed, or of testimony reduced to longhand and filed, or of a combination of all these forms of proof. The form is immaterial. The essential thing is that proof be reduced to permanent form and made a part of the record which may be transmitted to the reviewing court.

Without some such requirement, there is no reliable way that a reviewing court can determine whether the evidence before the magistrate at the time the warrants issued complied with the constitutional requirements as applied in Mapp v. Ohio, supra, Her v. California, supra, and Aguilar v. Texas, supra. Such a requirement seems to me to be imperative.

I would note in addition to the above that, even considering the attempts to recreate the justice court proceedings as valid, the subsequent affidavits introduced, together with the record from the justice court and testimony elicited at the superior court hearing, fail, in my opinion, to establish that a sufficient showing of probable cause was made before the issuing magistrate to justify her issuance of warrant No. 0297.

In State v. McClung, 66 Wn.2d 654, 659, 404 P.2d 460 (1965), we quoted with approval from State v. Bantam, 163 Wash. 598, 600, 1 P.2d 861 (1931), as follows:

[M]ere anonymous information, unsupported by other facts then within the knowledge of the officer or learned by subsequent investigation, is not of itself sufficient to constitute reasonable and probable cause. (Italics mine.)

See, also, In re Little v. Rhay, 68 Wn.2d 353, 357, 413 P.2d 15 (1966).

974 STATE v. WALCOTT [72 Wn.2d 959

Turning to the affidavit of the officers, Fawcett and Waitt, which purportedly reflects the information which was presented to the magistrate at the time the search warrants were sought, we find the statement:

Regarding 5514 1/2 11th N. E., Seattle, Washington, your affiants advised that this was the residence of Irving Walcott, a partner in the Eigerwand Coffee House in the University District where many of the suspected drug users in the University District congregate; that Walcott and the Eigerwand had been suspected as a source of marihuana and dangerous drugs in the District since March of 1965 when it came to the attention of the Seattle Police Department from informants that both were involved.

I cannot agree with the majority that this information, if given to the magistrate at the time the warrants issued, fulfills the second requirement of Aguilar, supra.

Certainly, the fact that a man's place of business is frequented by suspected drug users cannot constitute corroboration for information from an otherwise untested and unknown informant, sufficient to fulfill the constitutional requirements of Aguilar, supra, and to justify the issuance of a search warrant authorizing an invasion of that man's home. Such would constitute a flagrant application of the odious doctrine of "guilt by association."

Secondly, no basis is given for the police suspicion that appellant and the Eigerwand Coffee House were a source of marijuana and dangerous drugs other than that, in March, 1965, the police received some unspecified information "from informants that both were involved." Such informants are not identified, nor do the officers even allege that they were "reliable."

It is not sufficient that the officers do not refer to informants as "untested or unreliable" (see majority opinion, page 966), but rather it is necessary that the state establish the informant's reliability. Aguilar v. Texas, supra.

Finally, the statement in the majority opinion that "the magistrate's affidavit conclusively shows that she was told by the officers that these [italics mine] informants were reliable," is simply incorrect.

Dec. 1967] STATE v. WALCOTT 975

During the hearing in superior court, referred to on page 961 of the majority opinion. Justice of the Peace Starr testified as follows:

Q. They [the officers] talked about other informants with respect to that address [5514 1/2 11th N. E.]?