[No. 79712-9. En Banc.]
Argued May 15, 2007. Decided July 19, 2007.
[1] Judges Disqualification Bias Appearance of Fairness Threshold Showing. An appearance of fairness claim will not lie against a judge absent evidence of actual or potential bias. [2] Judges Disqualification Bias Appearance of Bias Recusal Advisability. CJC Canon 3(D)(1) counsels a judge to recuse from a proceeding only under circumstances in which the judge's impartiality might reasonably be questioned. [3] Judges Disqualification Bias Appearance of Bias Recusal Due Process. The federal constitutional due process right to a fair hearing includes the right to a judge who is not tainted by actual bias and the "probability of unfairness." While in certain instances a judge's duty to recuse from a proceeding is nondiscretionary because the probability of actual bias on the part of the judge is too high to be constitutionally tolerable, such as when the judge has a pecuniary interest in the outcome of the case or when the judge has been the target of personal abuse or criticism by a party, one asserting an unconstitutional risk of bias by a judge must overcome the presumption that the judge will perform judicial functions with honesty and integrity. [4] Searches and Seizures Warrant Validity Determination By Issuing Judge Bias or Prejudice In General. A judge who issues a search warrant is not necessarily or automatically disqualified from later ruling on the validity of the warrant. In determining that probable cause exists to issue a search warrant, a judge does not make a prosecutorial decision or assume an adversarial role that would raise a constitutional barrier to the judge's determining the validity of the warrant in a subsequent proceeding. No inherent prejudice or bias arises from the judge's role in making the probable cause determination. [5] Judges Disqualification Bias Appearance of Bias Comments From Bench Context Rule. When it is alleged that a judge's comments from the bench are indicative of bias, the comments are evaluated in light of the context in which they were made. [6] Searches and Seizures Warrant Validity Determination By Issuing Judge Bias or Prejudice Judge's Comments Effect. A judge who issues a search warrant and subsequently presides over a hearing concerning the validity of the warrant does not display bias against the defendant by making comments that, in context, indicate the judge's belief that he or she can and will compartmentalize the proceedings and be unbiased. [7] Searches and Seizures Warrant Validity Determination By Issuing Judge Bias or Prejudice Neutralization Appellate Review. Appellate review of a trial court's ruling that a search warrant is supported by probable cause will reduce any risk of prejudice or error that may be inherent in the proceeding due to the fact that the ruling was made by the same judge who originally issued the warrant. The appellate court reviews the probable cause determination de novo, based on the same record that was before the trial court. Any bias in the trial court's ruling will be cured by appellate review. [8] Searches and Seizures Warrant Validity Determination By Issuing Judge Bias or Prejudice Neutralization Affidavit of Prejudice. The right to remove a judge by means of a timely filed affidavit of prejudice under RCW 4.12.050 will cure any risk of prejudice or error that may be inherent in having the validity of a search warrant determined by the same judge who originally issued the warrant. [9] Searches and Seizures Warrant Validity Determination By Issuing Judge Bias or Prejudice Neutralization Judge's Obligation To Disqualify Self. The obligation imposed on a judge by CJC Canon 3(D)(1) to recuse from a proceeding when the judge's impartiality might reasonably be questioned will reduce any risk of prejudice or error that may be inherent in having the validity of a search warrant determined by the same judge who originally issued the warrant. [10] Searches and Seizures Warrant Affidavit Sufficiency Determination Common Sense. An affidavit submitted in support of an application for a search warrant is evaluated in a commonsense and not hypertechnical manner. [11] Searches and Seizures Warrant Informant Credibility, Veracity, or Reliability of Informant Inferences Surrounding Circumstances. When an affidavit submitted in support of an application for a search warrant relates an informant's tip, the informant's truthfulness must be established. An informant's truthfulness may be established by the informant's credibility. If nothing is known about the informant, truthfulness may be inferred from the facts and circumstances under which the tip was furnished. [12] Searches and Seizures Warrant Informant Nonprofessional Informant Reliability Presumption. A citizen informant who provides information that is related in an affidavit submitted in support of an application for a search warrant is presumed to be reliable if the informant's identity is revealed to the magistrate. [13] Searches and Seizures Warrant Informant Credibility, Veracity, or Reliability of Informant Admissions Against Penal Interest. One factor that may be considered in determining the truthfulness of an informant who provides information that is related in an affidavit of probable cause for the issuance of a search warrant is whether the informant acted against his or her penal interest in providing the information. [14] Searches and Seizures Warrant Informant Credibility, Veracity, or Reliability of Informant Factors. That an informant made statements against his or her penal interest, the informant provided very detailed information, the informant was willing to publicly stand by his or her information in court, the informant's identity was revealed to the issuing magistrate, and the police made no promises in exchange for the informant's information are factors that, when taken together, may establish the informant's veracity. Nature of Action: Prosecution for two counts of unlawful possession of a controlled substance with intent to manufacture or deliver. Evidence against the defendant was discovered in a search of his home conducted pursuant to a warrant that was issued on the basis of an affidavit relating information provided by a named informant. The defendant moved to suppress the evidence and, at a hearing on the motion before the same judge who had issued the warrant, the defendant asked the judge to recuse himself from the proceeding. Superior Court: After denying both the recusal request and the motion to suppress the evidence, the Superior Court for Island County, No. 05-1-00026-1, Alan R. Hancock, J., on October 7, 2005, entered a judgment of guilty to one count of unlawful possession of a controlled substance with intent to manufacture or deliver. Supreme Court: Holding that the trial judge was not required to recuse himself from the evidence suppression hearing and that the search warrant was supported by probable cause, the court affirms the judgment. Eric Broman- (of Nielsen, Broman & Koch, P.L.L.C.), for appellant. Gregory M. Banks-, Prosecuting Attorney, for respondent. Pamela B. Loginsky- on behalf of Washington Association of Prosecuting Attorneys, amicus curiae. Lila J. Silverstein-, Sarah A. Dunne, and Nancy L. Talner on behalf of American Civil Liberties Union, amicus curiae. Lila J. Silverstein- on behalf of Washington Association of Criminal Defense Lawyers, amicus curiae. EN BANC Ά1 C. JOHNSON, J. This case involves direct review of a judge's denial of a motion to suppress evidence obtained from the execution of a search warrant authorized by the same judge. Scott Chamberlin appeals the judge's denial of a motion to have the suppression motion heard by a different judge than the judge who issued the warrant. Chamberlin also challenges the veracity of the informant and whether probable cause existed to issue the search warrant. We accepted review and affirm. FACTS Ά2 Randall Paxton, the informant, was arrested for driving while under the influence, attempting to elude a pursuing police vehicle, and reckless driving. Clerk's Papers (CP) at 15. Paxton told the arresting officer he was under the influence of methamphetamine and marijuana. He stated that he got the drugs from Chamberlin and offered to provide a statement and testify against Chamberlin. Police told him that they would not make any deal regarding his criminal charges. CP at 38-39. Nonetheless, Paxton gave a tape-recorded statement in which he described the transaction with Chamberlin. CP at 37-43. Based primarily on that statement, the Island County sheriff's office presented an affidavit for a search warrant to Judge Hancock. Ά3 The affidavit for the search warrant identified Paxton by name and relayed Paxton's claim that he purchased the drugs at Chamberlin's home, Chamberlin's address, and Paxton's description of the home's location. CP at 60-62. The affidavit described how Chamberlin retrieved the methamphetamine from a black duffel bag on a coffee table. Inside the duffel bag was a plastic "ziplock" bag containing roughly three to four ounces of methamphetamine. Paxton said that Chamberlin weighed out 1.75 grams of methamphetamine on a digital scale and Paxton paid $45 for it. The affidavit relayed Paxton's statement that he left the home and injected the methamphetamine. Paxton said he returned that day and was given marijuana from the same black bag from which Chamberlin had retrieved the methamphetamine. Paxton believed there was at least three-quarters of an ounce of marijuana in the duffel bag. He indicated he had been buying drugs from Chamberlin for around four months and that each time, the drugs were kept either in the black duffel bag or a black metal lockbox. The affidavit contains the averment that Paxton was not threatened with or promised anything in regard to his pending charges. The affiant averred, "Paxton states that he had been doing well until CHAMBERLAIN [sic] provided him with methamphetamine approximately 4 months ago." CP at 62. Ά4 Judge Hancock issued a search warrant for Chamberlin's home. CP at 47. Based largely on evidence uncovered in that search, Chamberlin was charged with one count of possession with intent to manufacture or deliver marijuana. He was also charged with possession with intent to manufacture or deliver methamphetamine. Ά5 At a readiness hearing, defense counsel expressed concern about whether Judge Hancock could be impartial in hearing the suppression motion. Judge Hancock then said: "If, indeed, I issued the warrant in this case, I'm sure that I did read carefully the application for the warrant, sworn testimony in support of the warrant, issued the warrant." 1 Report of Proceedings (RP) at 5. Ά6 At a suppression hearing, the defense asked Judge Hancock to recuse himself. 2 RP at 2-5. Chamberlin said he did not want to use his statutory right to file an affidavit of prejudice. 2 RP at 5-6. Judge Hancock denied the request. He stated that he did not know why he would not be fair and impartial. 3 RP at 19. Ά7 Judge Hancock denied the suppression motion. 3 RP at 40-48. He determined that the affidavit established Paxton's basis of knowledge. Judge Hancock also determined Paxton had the requisite veracity, finding he was a named citizen informant, he had given a statement against penal interest, and he gave a detailed description that established Paxton's credibility. After a bench trial, Chamberlin was found guilty of count II, possession of methamphetamine with intent to deliver in violation of RCW 69.50.401(2)(b), not guilty of count I, and sentenced to a standard range sentence of 16 months. CP at 3, 8. ANALYSIS Ά8 Chamberlin argues Judge Hancock should have recused himself, citing actual bias and the appearance of fairness, and asks that the conviction be reversed and the case remanded for a suppression hearing before a different judge. Br. of Appellant at 6-14. Neither Chamberlin nor the ACLU make independent arguments based on the state constitution. Judges have recused themselves where the judge had already rendered a contempt decision against the defendants and, in a prior capacity, prosecuted them, United States v. Zerilli, 328 F. Supp. 706 (C.D. Cal. 1971), or where there was the appearance of ex parte contact. United States v. Quattrone, 149 F. Supp. 240, 243 (D.D.C. 1957); Sherman v. State, 128 Wn.2d 164, 905 P.2d 355 (1995). Ά10 Chamberlin argues that potential bias is inherent in the scenario here, relying on three cases: Brent v. State, 929 So. 2d 952 (Miss. Ct. App. 2005), cert. denied, 929 So. 2d 923 (Miss. 2006); Russell v. Lane, 890 F.2d 947 (7th Cir. 1989); Rice v. McKenzie, 581 F.2d 1114 (4th Cir. 1978). Both Russell and Rice involve instances where the judge essentially sat on the appeal of his own case. This practice is clearly banned by federal law and practice. "[I]t is considered improperindeed is an express ground for recusal, see 28 U.S.C. § 47in modern American law for a judge to sit on the appeal from his own case." Russell, 890 F.2d at 948 (citing Rice, 581 F.2d 1114). While Brent involved a judge issuing the search warrant and denying a suppression motion, important to the result was that the same judge, then acting as an assistant district attorney, had previously prosecuted Brent. Brent, 929 So. 2d at 955. None of these cases support Chamberlin's argument under the facts of this case. Ά11 Amicus American Civil Liberties Union and Washington Association of Criminal Defense Lawyers (hereafter ACLU) argues that participation in the investigatory process violates due process. Br. of Amicus ACLU at 11. ACLU argues that a judge who issues a warrant cannot be wholly disinterested in the suppression or admission of the evidence thereby obtained. Both Chamberlin and the ACLU, in essence, are advocating for a rule of automatic recusal of any judge from hearing a challenge to a search warrant he or she issues. Ά14 This analogy to Murchison fails in several regards. The judge in Murchison became "part of the prosecution and assumed an adversary position." Withrow, 421 U.S. at 53. The judge used language suggesting he considered himself to be part of the prosecution. Murchison, 349 U.S. at 137 n.8. As a single " 'judge-grand jury,' " the judge was "even more a part of the accusatory process than an ordinary lay grand juror." Murchison, 349 U.S. at 137. The judge compelled the witnesses to testify before him. The United States Supreme Court reasoned that what the judge learned in his secret sessions was "likely to weigh far more heavily with him than any testimony given" in subsequent open hearings. Murchison, 349 U.S. at 138. In explaining his guilty finding, the judge "called on his own personal knowledge and impression of what had occurred in the grand jury room," an impression that "could not be tested by adequate cross-examination." Murchison, 349 U.S. at 138. Under these circumstances, the United States Supreme Court reversed the convictions. Ά15 Unlike the judge's role in Murchison, the probable cause inquiry does not draw judges into an adversarial position. In issuing search warrants, a judge reviews an affidavit prepared outside his or her presence. Judges do not evaluate the veracity of witnesses personally but instead determine only if the affidavit establishes probable cause for the issuance of the warrant. The availability of cross-examination in subsequent adversarial proceedings (i.e., during the suppression hearing) provides a new opportunity to evaluate the evidence and test any lingering impressions. Judges in criminal matters routinely must evaluate the existence of probable cause or oversee preliminary hearings. "Neither of these pretrial involvements has been thought to raise any constitutional barrier against the judge's presiding over the criminal trial and, if the trial is without a jury, against making the necessary determination of guilt or innocence." Withrow, 421 U.S. at 56. The weight of legal authority supports the position that no inherent prejudice or bias arises from this scenario. See, e.g., Hirning v. Dooley, 2004 SD 52, 679 N.W.2d 771, 780; Trussell v. State, 67 Md. App. 23, 506 A.2d 255 (1986). We conclude there is no basis for an automatic recusal rule. Ά21 We agree that Paxton was reliable. Paxton made a statement against his penal interest when he admitted to driving under the influence of narcotics. An admission against penal interest is "one factor," "[p]articularly where [it] is not the only indication of reliability." Lair, 95 Wn.2d at 711. Paxton's statement against penal interest is buttressed by his willingness to publicly stand by his information. Paxton's identity was revealed in the affidavit; he was not a confidential informant. Paxton was willing to repeat his statement in court and provided a tape recorded statement. Cf. Lair, 95 Wn.2d at 711 (" 'stoolie' " may perceive that he can admit to criminality without significant risk) (quoting 1 Wayne R. LaFave, SEARCH AND SEIZURE § 3.3., at 530 (1978)). The police made no promises in exchange for Paxton's statement. Ά22 This particular set of considerations need not be met in every case, but in this case, these factors are sufficient. We affirm the trial court's finding of probable cause to issue the warrant. CONCLUSION Ά23 We affirm the trial court's decision not to recuse and its finding that the warrant was supported by probable cause. We reject any error premised on the delay in entering written findings of fact and conclusions of law. ALEXANDER, C.J., and MADSEN, SANDERS, BRIDGE, CHAMBERS, OWENS, FAIRHURST, and J.M. JOHNSON, JJ., concur.