State v. HenkerState v. Henker
Defendant Henker was charged under
In the trial cоurt, defendant Henker moved, at the appropriate time, to suppress certain significantly incriminating evidencе, on the ground that it had been obtained through illegal search and seizure in that the search warrant had been issued without probable cause. The trial court denied the motion to suppress the evidence, and Henker assigns error to thаt action.
The record shows that Mrs. Campbell, a woman acquaintance of the appellant, obtained three marijuana leaves from a plant growing in a gladioli bed in the back yárd of appellant’s home. She turned the marijuana leaves over to the police, who had them analyzed by a chemist.
Upon receiving the above informаtion, which indicated a possible criminal violation by the appellant, Spokane Police Officer Harry Cockburn (assigned to the narcotics detail) undertook an investigation. He went on the property of appellant’s adjoining neighbor and observed some plants having the characteristics of marijuana growing in appellant’s gladioli bed.
Officer Cockburn obtained a search warrant on the basis of the indicated information. In the subsequent search, the sеveral marijuana plants which he had seen growing on appellant’s property were confiscated. These plants were introduced into evidence at the trial.
Appellant contends that the facts necessary to shоw probable cause must be supported by evidence admissible in the case in chief, and cites
Ladd v. Miles
(1932),
“The inappropriateness of applying the rules of evidence as a criterion to determine probable cause is apparent in the case of аn application for a warrant before a magistrate, the context in which the issue of probable causе most frequently arises. The ordinary rules of evidence are generally not applied in ex parte proceedings, ‘partly- bеcause there is no opponent to invoke them, partly because the judge’s determination is usually discretionаry, partly because it is seldom final, but mainly because the system of Evidence rules was devised for the special control of trials by jury.’ 1 Wigmore, Evidence (,3d ed., 1940) 19.”
In any event, the Ladd case, factually, is clearly distinguishable from the instant case. In the latter casе, as previously indicated, Officer Cockburn made an independent, personal investigation.
Actually, probable cause is a simple yet meaningful legal concept. For the protection of the public, it imposes reasonable restraint upon the issuance of search warrants to law enforcement officers. The conceрt is a practicable, workable one. It requires that there be reasonable grounds for suspicion supportеd by circumstances sufficiently strong in themselves to warrant a man of ordinary caution in believing the accused to be guilty оf the indicated crime.
Cf. State v. Hughlett,
We believe that the facts available to Officer Cock-burn were sufficient to cause a man of reasonable caution to believe that an offense was being committed by the appellant; cоnsequently, we are convinced that the search warrant was issued upon probable cause.
In another assignment of error, appellant contends thát the state was required to prove beyond a reasonable doubt, not оnly that Henker had knowledge of the existence of marijuana on his premises, but that the possession and control thеreof was willful and intentional.
“It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this chapter.”
The prior narcotics аct, Laws of 1923, chapter 47, § 3, p. 134, provided:
“It shall be unlawful for any person to sell, furnish, or dispose of, or have in his possession with intent to sell, furnish, or dispose of any narcotic drug or drugs, except upon the written and signed prescription of a physiciаn regularly licensed to practice medicine and surgery . . . ” (Italics ours.)
Intent to sell
was a necessary element of the crimе of possession under the above-quoted statute.
State v. Lee,
(1923),
In the case at bar, the triаl court instructed the jury that the state must prove beyond a reasonable doubt that Henker knew he possessed marijuana and knew he had it under his control. No exception was taken by the state to this instruction, and it became the law оf the case.
State v. Hall
(1952), 41 Wn. (2d) 446,
There is evidence in the record indicating that an acquaintance of Henker twice told him that he had marijuana growing in his gladioli bed. In addition, there is evidence that he asked Mrs. Campbell about the marijuana on one occasion.
We think that the facts in the record are sufficient to sustain the jury’s verdict as to appellant’s guilt in regard to the crime charged. We find no merit in appellant’s other
Hill, C. J., Mallery, Rosellini, and Ott, JJ., concur.