State v. EttenhoferState v. Ettenhofer
- Reporters:
- , ,
- Before:
- Bridgewater
John Anthony Ettenhofer was convicted of manufacture of a controlled substance — marijuana. He appeals, alleging that the failure to have a written warrant to search his property requires suppression of the marijuana. Although officers gave a telephonic statement in applying for a search warrant and a judge determined that probable cause existed, nobody executed a written warrant, affixed the authorizing court’s signature to a warrant, or gave Ettenhofer a copy of a warrant. We hold that these failures constitute a warrantless search in violation of CrR 2.3(c),
In August 2000, a Lewis County sheriff’s deputy arrested an individual who informed the deputy of a marijuana grow at Ettenhofer’s property. Several days later, officers went to Ettenhofer’s property to investigate the tip. While conducting a “knock and talk,” officers smelled the marijuana coming from a shop building.1 They advised Ettenhofer that they would obtain a warrant to search the shops if he would not consent to the search. Ettenhofer refused and ordered the officers to leave his property. Some of the officers stayed at the home to ensure that the scene was not disturbed pending issuance of a search warrant, and one drove to a location where his cell phone would work and contacted a district court judge.
The officer was placed under oath and gave a telephonic statement of grounds for the search. The judge found probable cause and authorized a search. But neither the judge nor the officer executed a written warrant.
The search occurred thereafter, revealing the expected marijuana grow along with hanging bags- of marijuana. A return was executed after the search in compliance with the relevant portion of CrR 2.3(d). The trial court denied Ettenhofer’s subsequent suppression motion, reasoning that Ettenhofer failed to show actual prejudice resulting from the written warrant failure. Trial occurred, and the court found Ettenhofer guilty as charged.
I. Criminal Rule 2.3
Criminal Rule 2.3 outlines warrant and search procedures. CrR 2.3(c)2 provides that a warrant
We start by recognizing that CrR 2.3(c) is not entirely clear in its written warrant command. Therefore, principles of statutory construction guide our analysis of the rule. See State v. Hutchinson, 111 Wn.2d 872, 877, 766 P.2d 447 (1989). We interpret court rules in a manner that gives effect to the Supreme Court’s intent and avoids absurd results. See State v. Kelly, 60 Wn. App. 921, 927, 808 P.2d 1150 (1991). We must construe the rules as a whole, giving effect to each provision. See State v. Merritt, 91 Wn. App. 969, 973, 961 P.2d 958 (1998).
We note at the outset that a provision in CrR 2.3(c) does contemplate telephonic procedures. The State asserts that this provision prescribes a method of warrant issuance in which the judge’s oral determination of probable cause and subsequent oral description of items subject to seizure is the warrant. But this argument clearly reads CrR 2.3(c)’s telephonic provision too broadly. The rule contemplates only that the sworn testimony establishing the grounds for the warrant may be telephonic. This provision addresses a phase of the warrant process that precedes actual warrant issuance, and it therefore cannot validate the officers’ actions here. The rule provides for no further telephonic procedures.
The rule does, however, contemplate further written procedures. After the court determines that probable cause exists, “it shall issue a warrant or direct an individual whom it authorizes for such purpose to affix the court’s signature to a warrant identifying the property or person and naming or describing the person, place or thing to be searched.” CrR 2.3(c). This command exposes three relevant points.
First, it establishes that the rule is sequentially ordered. The probable cause determination, which may be based on a written or telephonic affidavit, occurs before warrant issuance, not at the issuance phase. Thus, the telephonic procedures do not apply during the issuance phase. Second, it directs the issuance of a warrant, which under any reasonable construction requires a physical document. Third, it requires the affixation of the authorizing court’s signature. A signature cannot be affixed to an oral authorization in a manner consistent with the rule. Although simplistic, these points show that the procedure prescribed in CrR 2.3(c) has a written warrant as its end product. And a written warrant as the end product of the warrant rules is consistent with our collective experience in the various phases of criminal prosecution.
As principles of statutory construction require that we harmonize CrR 2.3(c) with other relevant rules, we next turn to CrR 2.3(d).3 That rule requires that “[t]he peace
Besides proving that CrR 2.3(c) requires a written warrant, section (d) has another function in this case. As the officers did not have a written warrant, they could not have given Ettenhofer a copy of one as the rule commands. Thus, the officers violated CrR 2.3(d) in addition to CrR 2.3(c).
These provisions establish that the Supreme Court intended a written, signed warrant when it enacted CrR 2.3(c). The requirement does not vanish when officers use the telephonic affidavit procedure. In such a situation, as here, after the court determines that probable cause exists, the officers must affix the authorizing court’s signature to a properly executed, written warrant.
This analysis is consistent with a California court’s construction of a similar rule.4 As amended in 1970,
In Bowyer v. Superior Court, 37 Cal. App. 3d 151, 111 Cal. Rptr. 628 (1974), officers followed this telephonic affidavit procedure and obtained a magistrate’s determination of probable cause. The officers then searched the defendant’s property without a written warrant despite the magistrate’s direction that they execute one and affix his signature. On appeal, the court stated,
the pertinent statutes do not authorize an oral search warrant (“telephonic” or otherwise) as such, nor do they authorize a search which is not preceded by an original [warrant] or by a written “duplicate original” of such [warrant] to which his name has been signed by a peace officer pursuant to the magistrate’s oral authorization. In the absence of any writing in this case as required by statute, the “telephonic” search warrant was wholly invalid.
Bowyer, 37 Cal. App. 3d at 164 (citations omitted).
The California court’s approach to its rule is well-reasoned and, as its rule is similar to CrR 2.3(c), persuasive. Thus, by persuasive authority and a reasonable construction of the warrant rules as a whole, the officers transgressed CrR 2.3(c)’s procedures when they searched Ettenhofer’s shops without a written, signed warrant, and they violated CrR 2.3(d) when they failed to give Ettenhofer a copy of such a warrant.
If our concern were only with these violations, we would next consider whether the violations prejudiced the defendant because, constitutional considerations aside, rules guiding the warrant procedure are ministerial and reversal, therefore, does not follow as a matter of course. See State v. Kern, 81 Wn. App. 308, 311, 914 P.2d 114, review denied, 130 Wn.2d 1003 (1996); see also State v. Wible, 113 Wn. App. 18, 25, 51 P.3d 830 (2002) (“[A] ministerial mistake is grounds for invalidation of a search warrant only if prejudice is shown.”). But because we conclude that the written warrant failure violated Ettenhofer’s constitutional rights against unreasonable searches, which renders the search invalid as a matter
II. Washington Constitution Article I, Section 7 and
“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Const, art. I, § 7. This provision, which is more protective of individual liberties than the Fourth Amendment, requires a warrant or recognized exception to the warrant requirement. See State v. Groom, 133 Wn.2d 679, 685, 947 P.2d 240 (1997). As the State does not contend that an exception applied here, the question we face is whether the oral, telephonic procedures employed satisfied the warrant requirement.
Thus, the warrant requirements evident in CrR 2.3,
But Groom’s relevance does not end with its statement on implementation. It further stressed that, to avoid absurd results, courts must interpret
Warrantless searches done without a valid exception are per se unreasonable under article I, section 7. State v. Ross, 141 Wn.2d 304, 312, 4 P.3d 130 (2000). And our Supreme Court has held that unreasonable searches require suppression of the illegally obtained evidence.6 State v. White, 97 Wn.2d 92, 110, 640 P.2d 1061 (1982) (“[T]he language of our state constitutional provision constitutes a mandate that the right of privacy shall not be diminished by the judicial gloss of a selectively applied exclusionary remedy. . . . The important place of the right to privacy in Const, art. [I], § 7 seems to us to require that whenever the right is unreasonably violated, the remedy must follow.”); see also State v. Ferrier, 136 Wn.2d 103, 119, 960 P.2d 927 (1998). The fruits of this warrantless search must therefore be suppressed and Ettenhofer’s conviction reversed.
Reversed.
Quinn-Brintnall, A.C.J., and Armstrong, J., concur.
Notes
Ettenhofer raises the issue of whether the officer who smelled the marijuana was properly on his premises or was in an area that was not “impliedly open.” See State v. Seagull, 95 Wn.2d 898, 901-02, 632 P.2d 44 (1981) (when an officer detects contraband while lawfully present in impliedly open curtilage, that detection is not a search subject to constitutional protections). We do not address this issue because the warrantless search is dispositive.
CrR 2.3(c) provides, in full,
Issuance and Contents. A search warrant may be issued only if the court determines there is probable cause for the issuance of a warrant. There must be an affidavit, a document as provided in ROW 9A.72.085 or any law amendatory thereto, or sworn testimony establishing the grounds for issuing the warrant. The sworn testimony may be an electronically recorded telephonic statement. The recording or a duplication of the recording shall be a part of the court record and shall be transcribed if requested by a party if there is a challenge to the validity of the warrant or if ordered by the court. The evidence in support of the finding of probable cause shall be preserved and shall be subject to constitutional limitations for such determinations and may be hearsay in whole or in part. If the court finds that probable cause for the issuance of a warrant exists, it shall issue a warrant or direct an individual whom it authorizes for such purpose to affix the court’s signature to a warrant identifying the property or person and naming or describing the person, place or thing to be searched. The court shall record a summary of any additional evidence on which it relies. The warrant shall be directed to any peace officer. It shall command the officer to search, within a specified period of time not to exceed 10 days, the person, place, or thing named for the property or person specified. It shall designate to whom it shall be returned. The warrant may be served at any time.
CrR 2.3(d) provides, in full,
Execution and Return With Inventory. The peace officer taking property under the warrant shall give to the person from whom or from whose premises the property is taken a copy of the warrant and a receipt for the property taken. If no such person is present, the officer may post a copy of the search warrant and receipt. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the person from whose possession or premises the property is taken, or in the presence of at least one person other than the officer. The court shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.
The Federal Rules of Criminal Procedure are also similar. See
A violation of this statute by a peace officer constitutes a gross misdemeanor.
We recognize that this rule does not apply without exception, viz, the doctrines of inevitable discovery and independent source. See State v. Rickman, 85 Wn. App. 568, 575-77, 933 P.2d 1088 (inevitable discovery rule), review denied, 133 Wn.2d 1028 (1997); see also State v. Ludvik, 40 Wn. App. 257, 263-65, 698 P.2d 1064 (1985) (independent source doctrine). But these exceptions do not apply here.