Opinion Information Sheet

			

           IN THE SUPREME COURT OF THE STATE OF 
                                   WASHINGTON

 State of Washington,                               )
                                                    )
                Respondent,                         )                      No. 85746-6
        v.                                          )
                                                    )                        En Banc
 Patrick Jimi LYONS, aka Jimi Luke Andring,         )
                                                    )
                Petitioner.                         )                  Filed April 26, 2012
                                                    )

       WIGGINS, J.  --  Police executed a search warrant and arrested Patrick Jimi 

Lyons when they found a marijuana growing operation on his property.  Probable 

cause for the search warrant was based solely on information from a confidential 

source.  The affidavit for search warrant did not establish timely probable cause 

because it stated     when the officer received the tip, not when the informant 

observed the criminal activity.  Accordingly, the search warrant did not satisfy the 

requirements of the Washington State Constitution article I, section 7, and the trial 

court properly suppressed evidence obtained in the search.

                                          FACTS

       A Yakima District Court judge issued a search warrant for Lyons' property,  

No. 85746-6

based on an affidavit by Yakima Police Department Officer Gary Garza.  Officer 

Garza made the following statement of probable cause in the affidavit:

       Within the last 48 hours a reliable and confidential source of 
       information (CS) contacted [narcotics] Detectives and stated he/she 
       observed narcotics, specifically marijuana, being grown indoors at the 
       listed address.  The CS knows the suspect and homeowner as 
       "Jimmy".    The CS observed the growing marijuana while inside an 
       outbuilding on the property of the listed residence.  The CS observed 
       the marijuana growing in potted soil under active lighting designed to 
       promote plant growth. . . .

Clerk's Papers (CP) at 60.         When they executed the search warrant, police 

discovered more than 200 mature marijuana plants maintained in a pole barn on 

Lyons' property. On the property police also found small, juvenile marijuana plants, 

supplies for packaging marijuana, and a large quantity of mushrooms.  Lyons was 

arrested and charged with manufacturing marijuana, possession of mushrooms 

with intent to deliver, and possession of marijuana with intent to deliver.

       Lyons moved to suppress the evidence seized from his property, arguing 

that the affidavit for search warrant failed to state timely probable cause.  The 

superior court judge found that although the affidavit identified when the officer 

received the CS's information, it "said nothing about the timing of the informant's 

observation."  CP at 5 (Findings of Fact, Conclusions of Law and Order Granting 

Def.'s Mot. to Suppress (FFCL), Finding of Fact (FF) ¶ 4).  The judge held that the 

affidavit was legally insufficient and the search unlawful and granted Lyons' motion 

to suppress.  FFCL, Conclusion of Law (CL) ¶¶ 1-2).  The State appealed.

       In a two-judge majority opinion, the Court of Appeals reversed the trial court.  

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No. 85746-6

State v. Lyons, 160 Wn. App. 100, 102, 247 P.3d 797, review granted, 172 Wn.2d 

1013, 259 P.3d 1110 (2011).  The majority held that the language in Officer 

Garza's affidavit, "[w]ithin the last 48 hours," could be read either to apply solely to 

when the CS contacted police or to apply both to the time of contact and of the

CS's observations.  Id. at 107.  The majority went on to hold the standard of review 

required the language be read to support the warrant.  Id.           The dissenting judge 

called this analysis a strained and unnatural reading.  Id. at 108-09 (Siddoway, J., 

dissenting).  We agree with Judge Siddoway's dissent.

                                        ANALYSIS

   I.  The Fourth Amendment and Article I, Section 7

       Fundamental principles set the stage for our analysis.  A search warrant 

shall issue only on probable cause.  U.S. Const. amend. IV; Wash. Const. art. I, § 

7.  The warrant must be supported by an affidavit that particularly identifies the 

place to be searched and items to be seized.  Id. To establish probable cause, the 

affidavit must set forth sufficient facts to convince a reasonable person of the 

probability the defendant is engaged in criminal activity and that evidence of 

criminal activity can be found at the place to be searched.  State v. Maddox, 152 

Wn.2d 499, 509, 98 P.3d 1199 (2004).  Even though the affidavit may be based on 

an unidentified informant's tip, the affidavit must contain some of the underlying 

circumstances that led the informant to believe that evidence could be found at the 

specified location.  Aguilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 12 L. Ed. 

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No. 85746-6

2d 723 (1964).1         In particular, the affidavit must set forth the underlying 

circumstances specifically enough that the magistrate can independently judge the 

validity of both the affiant's and informant's conclusions.2  Spinelli v. United States, 

393 U.S. 410, 413, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).

       The requirement that a magistrate issue a search warrant is based on 

another fundamental principle: the determination of probable cause must be made 

by a magistrate based on the facts presented to the magistrate, instead of being 

made by police officers in the field.  As the United States Supreme Court has 

explained:

       The reasons for this rule go to the foundations of the Fourth 
       Amendment. . . .

              "The point of the Fourth Amendment, which often  is not 
       grasped by zealous officers, is not that it denies law enforcement the 
       support of the usual inferences which reasonable men draw from 
       evidence.  Its protection consists in requiring that those inferences be 
       drawn by a neutral and detached magistrate instead of being judged 
       by the officer engaged in the often competitive enterprise of ferreting 

1 The United States Supreme Court has abandoned the Aguilar/Spinelli               standard, 
adopting instead a totality of the circumstances approach.  Illinois v. Gates, 462 U.S. 
213, 230-31, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).  However, the broad language of 
article I, section 7 is more protective than the Fourth Amendment to the United States 
Constitution.  State v. Jackson, 150 Wn,2d 251, 259, 76 P.3d 217 (2003) (Jackson II).  
Accordingly,  we still adhere to the Aguilar/Spinelli standard for establishing probable 
cause via a confidential informant.  State v. Jackson, 102 Wn.2d 432, 443, 688 P.2d 136 
(1984) (Jackson I).

2 The Aguilar/Spinelli test has two prongs that must be evaluated independently: basis of 
knowledge (stated above) and veracity.  Jackson I, 102 Wn.2d at 437-38.  Under the 
veracity prong, the affidavit must set out sufficient information regarding the informant's 
reliability.  State v. Fisher, 96 Wn.2d 962, 965, 639 P.2d 743 (1982).  Lyons has not 
challenged the affidavit on the veracity prong and the affidavit appears to set out 
sufficient details of Officer Garza's experience with the confidential source to satisfy this 
requirement.  

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No. 85746-6

       out crime."

Aguilar, 378 U.S. at 111 (quoting Johnson v. United States, 333 U.S. 10, 13-14, 68 

S. Ct. 367, 92 L. Ed. 436 (1948)).      The facts set forth in the affidavit must support 

the conclusion that the evidence is probably at the premises to be searched at the 

time the warrant is issued.  State v. Partin, 88 Wn.2d 899, 903, 567 P.2d 1136 

(1977).  We evaluate an affidavit "in a commonsense manner, rather than 

hypertechnically, and any doubts are resolved in favor of the warrant."  State v. 

Jackson, 150 Wn.2d 251, 265, 76 P.3d 217 (2003) (Jackson II).                However, "the 

[reviewing] court must still insist that the magistrate perform his 'neutral and 

detached' function and not serve merely as a rubber stamp for the police."  Aguilar, 

378 U.S. at 111 (quoting Johnson, 333 U.S. at 13-14).

   II. Determining When a Warrant Is Based on Stale Information

       Of course, some time passes              between the officer's or informant's 

observations of criminal activity and the presentation of the affidavit to the 

magistrate.  The magistrate must decide whether the passage of time is so 

prolonged that it is no longer probable that a search will reveal criminal activity or 

evidence,  i.e., that the information is stale.  The magistrate makes this 

determination based on the circumstances of each case.  Sgro v. United States, 

287 U.S. 206, 210-11, 53 S. Ct. 138, 77 L. Ed. 260 (1932).  Among the factors for 

assessing staleness are the time between the known criminal activity and the 

nature and scope of the suspected activity.  See, e.g., Andresen v. Maryland, 427 

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No. 85746-6

U.S. 463, 478 n.9, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976); State v. Petty, 48 Wn. 

App. 615, 621, 740 P.2d 879 (1987).  In the context of a marijuana growing 

operation, probable cause might still exist despite the passage of a substantial 

amount of time.  See, e.g., State v. Payne, 54 Wn. App. 240, 246, 773 P.2d 122 

(1989) ("[a] marijuana grow operation is hardly a 'now you see it, now you don't' 

event");  State v. Hall, 53 Wn. App. 296, 299-300, 766 P.2d 512 (1989) (two 

months between the date of the informant's observations and issuance of the 

warrant not too long).

       It should go without saying that the magistrate cannot determine whether 

observations recited in the affidavit are stale unless the magistrate knows the date 

of those observations.  Federal courts have found two separate statements of time 

to be important in determining staleness: (1) when the affiant received the tip and 

(2) when the informant observed the criminal activity.  See Rosencranz v. United 

States, 356 F.2d 310, 315 (1st Cir. 1966) (absence of any averment on either time 

frame a "serious defect" in the affidavit).  Commentators have identified the second 

time frame as the critical one: the time of the facts relied on to establish probable 

cause.  See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth 

Amendment § 3.7(b) at 391 n.67 (4th ed. 2004); see also Partin, 88 Wn.2d at 904 (

"the underlying facts alleged must be current" (emphasis added)); Payne, 54 Wn. 

App. at 246 (evaluating the time between the informant's observations and 

issuance of the warrant); Hall, 53 Wn. App. at 299-300 (same).

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No. 85746-6

       An affidavit lacking the timing of the necessary observations might still be 

sufficient if the magistrate can infer recency from other facts and circumstances in 

the affidavit.  2  LaFave,  supra, at 393-94 (undated facts may be factually 

interrelated with other dated information in the affidavit); see also Maddox, 152 

Wn.2d at 509 ("In determining probable cause, the magistrate makes a practical 

commonsense decision, taking into account all the circumstances set forth in the 

affidavit and drawing commonsense inferences.").  However, without such 

additional facts from which to draw an inference of recency, the affidavit does not 

provide a magistrate a basis to find probable cause that a crime is now occurring.  

2 LaFave,  supra, at 392 ("'It is one thing to expect the magistrate to give a 

commonsense reading to facts set forth and to draw inferences from them.  It is 

quite another thing to expect the magistrate to reach for external facts and to build 

inference upon inference in order to create a reasonable basis for his belief that a 

crime is presently being committed.'" (quoting Commonwealth v. Simmons, 450 

Pa. 624, 631, 301 A.2d 819 (1973))).

   III. The Lyons Affidavit Did Not Provide the Magistrate Facts from Which To 
           Infer Recency as to the CS's Observation

       We must decide whether the magistrate had enough information to find 

probable cause that evidence of a marijuana growing operation would still be found 

on Lyons' property.  Did Officer Garza's phrase "[w]ithin the last 48 hours" refer 

solely to when he received the tip or also to when the informant observed the 

marijuana growing  The State urges us to defer to the issuing magistrate.  Further, 

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No. 85746-6

the State argues that the commonsense reading of the affidavit reveals that 

"[w]ithin the last 48 hours" refers to both the timing of the tip and the informant's 

observations and any other reading is "hypertechnical."         But establishing probable 

cause is not hypertechnical; it is a fundamental constitutional requirement and an 

ancient guarantee of the sanctity of the home.

       While we give great deference to the magistrate, that deference is not 

unlimited.  See United States v. Leon, 468 U.S. 897, 915, 104 S. Ct. 3405, 82 L. 

Ed. 2d 677 (1984).  We cannot defer to the magistrate where the affidavit does not 

provide a substantial basis for determining probable cause.  See id.  We do permit 

magistrates to make inferences from the facts stated in the affidavit.  Maddox, 152 

Wn.2d at 509.  However, this affidavit provides no facts to support an inference of 

recency.

   A. A commonsense reading of the affidavit

       Officer Garza's affidavit recites, "Within the last 48 hours a reliable and 

confidential source of information (CS) contacted [narcotics] Detectives and stated 

he/she observed narcotics, specifically marijuana, being grown indoors at the listed 

address."  CP at 60.  We agree with the Court of Appeals majority that this 

language "does not clearly state the time between the informant's observations and 

the filing of the affidavit."  Lyons, 160 Wn. App. at 106.  The State argues that the 

affidavit must be interpreted to mean that the CS both observed and reported 

marijuana being grown within the stated 48 hour period and that any other reading 

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No. 85746-6

is hypertechnical.  We disagree.  This one key sentence relates three separate 

actions: the CS observed marijuana being grown, the CS contacted the detectives,

and the CS reported the observation.  There was necessarily a time gap between 

the observation and the contact with the detectives.  But the affidavit gives only 

one time reference.  It is impossible for a neutral magistrate to determine how 

much time passed between observation and the contact and report.  The 

magistrate, not the detectives, must conclude from the affidavit the existence of 

probable cause to search, but the time element is simply missing.  This natural, 

commonsense reading of the affidavit reveals that the CS contacted detectives 

and relayed the tip within the last 48 hours but reveals nothing about when the CS 

observed marijuana growing.  The State urges that Officer Garza's statement in the 

affidavit supports an inference that the CS's observation was contemporaneous 

with the tip.  But an inference alone does not provide a substantial basis for 

determining probable cause.

   B. Partin did not correctly apply the Aguilar/Spinelli principles when it found 
       timely probable cause
       The State relies on Partin,3 in which the affidavit in support of the search 

3 The State also cites a number of cases in which the affidavit provided sufficient 
additional facts to overcome staleness problems.  However, these cases are inapposite 
because the affidavit in each clearly related when the informant observed drug activity.  
Payne, 54 Wn. App. at 242 (informant observed marijuana plants in the residence within 
three  weeks of the date informant contacted police); Hall, 53 Wn. App. at 299-300 
(informant had observed marijuana growing at the defendant's house two months before 
the warrant was issued); Smith, 39 Wn. App. at 644 (affidavit stated that informant had 
seen marijuana plants growing at the defendant's property two months and one month 
prior to the application for a warrant).

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No. 85746-6

warrant read:

              "Based upon information received [the same day the affidavit 
       was signed] from a reliable informant affiant has reasonable cause to 
       believe that controlled substances are in the possession of Arthur 
       Partin and other members of the Chosen Wheels Motorcycle club 
       located at 221 E., Oak St. and other vehicles located at that 
       residence."

88 Wn.2d at 902-03.      In addition, the officer made the following oral statement to 

the magistrate:

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No. 85746-6

       Your Honor, based upon information I received on this date, 1-3-75, 
       from a reliable informant, I have reason to believe that marijuana is 
       being kept in the residence of 221 East Oak Street.  This is the home 
       of Arthur Partin, also the gathering place for members of the Chosen 
       Wheels Motorcycle Club.

Id. at 903.  As the State points out, the  Partin court upheld the validity of the 

warrant despite the fact that the affidavit failed to recite the date on which the 

reliable informant made observations justifying the affiant officer in concluding that 

controlled substances were presently in the possession of the defendant.

       This holding in Partin was incorrect.  In Partin, we acknowledged that "the 

underlying facts alleged must be current, not remote in time, and sufficient to justify 

a magistrate's conclusion that the property sought is probably on the person or 

premises to be searched at the time he issues the warrant."  88 Wn.2d at 904.  

There the "underlying fact[]" was that the informant had observed marijuana in 

Partin's house.  Id. at 903.  But we went on to say that the very recent timing of the 

informant's report to the officer, coupled with the officer's belief that marijuana 

could currently be found at Partin's house based on that report, gave the 

magistrate "a reference point by which to determine the current status of the 

information."  Id. at 905.  We failed to note that the only detail that tied the recency 

of the informant's report to the recency of the informant's observation was the 

officer's bare statement, "'I have reason to believe that marijuana is being kept . . . 

at the home of Arthur Partin.'"  Id. at 903.  It is well established that probable cause 

must be based on more than purely conclusory statements of the affiant's or 

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No. 85746-6

informant's belief that probable cause exists.  See United States v. Ventresca, 380 

U.S. 102, 108-09, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965).  Accordingly, we now 

disapprove Partin's conclusion that the timing of the unidentified informant's tip 

provided the magistrate a reference point from which to infer sufficient recency of 

the information.   We will no longer follow Partin to the extent that it stands for the 

conclusion that timely probable cause may be supported by the recency of the tip 

alone.

   C. Other jurisdictions have reached similar conclusions when reviewing similar 
       language

       The State correctly concedes that other jurisdictions have found

"unambiguously deficient" language very similar to the affidavit in this case.          E.g.,

Nelms v. State, 568 So. 2d 384 (Ala. Crim. App. 1990); People v. Bauer, 191 Colo. 

331, 552 P.2d 512 (1976).   In  Nelms, the Alabama Court of Criminal Appeals 

evaluated a search warrant based on the following affidavit:

       That within the last seventy-two hours a confidential police informant, 
       who has provided information to the affiant in the past that led to an 
       arrest, stated to the affiant that they have seen Crack-Cocaine in the 
       residence of [the defendant] . . . .

568 So. 2d at 385.  The Nelms court held, similarly to the trial court in this case, 

that

              [t]he affidavit in this case is deficient because it does not state 
       when the drugs were seen by the informant at the appellant's 
       residence.  The words "within the last seventy-two hours" refer to 
       when the informant told this information to the affiant . . . .

Id. at 386; see CP at 5-6.

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No. 85746-6

       Similarly, in Bauer, the Supreme Court of Colorado considered an affidavit 

that recited "'[w]ithin the last 24 hours I have received information from a first time 

informant that he had seen marijuana in the form of bricks wrapped in clear 

cellophane inside [defendant's apartment],'" finding it insufficient because it "'did 

not reveal the time when the informant observed the marijuana bricks in 

defendant's apartment.'"     191 Colo. at 333.     The Bauer court rejected the State's 

argument that the affidavit supported the inference that the informant's 

observations were recent.  Id. ("Far more than just the vague inferences involved 

here as to when this informant saw what he reported are necessary.").

       The State attempts to distinguish the affidavit in this case from the affidavits 

in Nelms and Bauer on the ground that the officers in Alabama and Colorado used 

the past tense while Officer Garza recited that the confidential source "stated 

he/she observed . . . ."  See State's Resp. to Amicus Curiae Br. at 5.  This is no 

distinction at all because the observations in this case were also in the past tense.  

In any event, Professor LaFave cautions against overemphasizing verb tense.  
2 LaFave, supra, at 396-97.4

4 As Professor LaFave points out, a growing number of courts have accepted the idea 
that the present tense alone does not provide a sufficient basis from which a magistrate 
can infer recency.  2 LaFave, supra, at 397.  See, e.g., United States v. Boyd, 422 F.2d 
791, 792 (6th Cir. 1970) (affirmation of a present violation based on the affiant's 
observation not sufficient without the date of the observation); Morris v. State, 1980 OK 
CR 78, 617 P.2d 252, 253 (failure to specify when informant saw marijuana in 
defendant's home not cured by statement in affidavit that marijuana "now located" there); 
People v. Holmes, 20 Ill. App. 3d 167, 171, 312 N.W.2d 748 (1974) (use of present tense 
in complaint for search warrant not enough to make up for failure to supply date of 
offense).

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No. 85746-6

       Nelms and Bauer are not isolated cases.  The Alabama Court of Criminal 

Appeals followed Nelms in Lewis v. State, 589 So. 2d 758, 759 (Ala. Crim. App. 

1991) (holding that  a nearly identically worded affidavit did not state when the 

informant observed drugs on the premises).           The Alabama Supreme Court later 

approved Nelms and Lewis in Ex parte Green, 15 So. 3d 489, 494-95 (Ala. 2008).  

Similarly, the Florida District Court of Appeals held that an affidavit that "states only 

that the affiant received information from the confidential informant within the past 

ten days" gave no indication of when the informant had observed marijuana in the 

defendant's house.  Orr v. State, 382 So. 2d 860, 861 (Fla. Dist. Ct. App. 1980).  

The same court later followed Orr in King v. State, 410 So. 2d 586, 587 (Fla. Dist. 

Ct. App. 1982) (noting that courts have disapproved of search warrants "where 

affidavits to search warrants indicate merely that the police and the informant met 

or conferred within a certain given period of time").  And the Florida Supreme Court 

later acknowledged the weakness of the affidavit in King.  Dufour v. State, 495 So. 

2d 154, 157 (Fla. 1986) (holding that the instant affidavit did not suffer from the 

weakness in the King affidavit).

   D. The Court of Appeals' majority analysis amounts to the "totality of the 
       circumstances" approach that we have rejected

       Even though the appellate court's two-judge majority acknowledges that 

Officer Garza's affidavit does not clearly state when the informant made his or her 

observations, it criticizes the trial court for the "rigor" of its analytical approach.  

Lyons, 160 Wn. App. at 106.  This criticism echoes the United States Supreme 

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No. 85746-6

Court's criticism of the rigid application of the Aguillar/Spinelli test, which led the

Court in  Gates to adopt a "totality of the circumstances" approach to probable 

cause.  See Illinois v. Gates, 462 U.S. 213, 230, 103 S. Ct. 2317, 76 L. Ed. 2d 527 

(1983).    It could be argued that the "totality of        the  circumstances approach" 

adopted in Gates would allow a magistrate to infer that the confidential source's 

observation was contemporaneous with Officer Garza's receipt of the tip.  See id.

at 230-31.   However, as noted above, we have specifically rejected the "totality of 

the circumstances" approach as inconsistent with the Washington Constitution 

article I, section 7.  Jackson I, 102 Wn.2d at 443.  Thus, Officer Garza's statement 

of probable cause does not identify when the confidential source observed

marijuana growing on Lyons' property.  Accordingly, we hold that the affidavit was 

insufficient to support an inference of recency and, therefore, a finding of timely 

probable cause.

                                      CONCLUSION

       Because the affidavit for search warrant in this case did not relate when the 

confidential informant observed marijuana growing on Lyons' property, the affidavit 

did not provide sufficient support for the magistrate's finding of timely probable 

cause.   Therefore, the trial court did not err when it held that the search warrant 

was defective and suppressed the evidence seized.   We reverse the Court of 

Appeals and remand for proceedings consistent with this opinion.

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No. 85746-6

AUTHOR:
        Justice Charles K. Wiggins

WE CONCUR:
        Chief Justice Barbara A. Madsen                  Justice James M. Johnson

        Justice Charles W. Johnson                       Justice Debra L. Stephens

        Justice Tom Chambers

        Justice Susan Owens                              Justice Steven C. González

        Justice Mary E. Fairhurst

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