State v. PattersonState v. Patterson
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Dеfendant, Douglas James Patterson, appeals from a judgment and sentence entered after a jury verdict finding him guilty of two counts of unlawful possession of a controlled substance, and two counts of unlawful possession of a controlled substance with intеnt to deliver. Defendant‘s assignments of error raise issues relating to the validity of the warrant and subsequent search, and the scope of the Uniform Controlled Substances Act,
Defendant first assigns error to denial of his motion to contravene the search warrant and suppress the evidence. He challenges the affidavit of the police, and the testimony of a juvenile informant, as insufficient to establish probable cause. Prior to issuance of the warrant, a juvenile had been arrested for possession of marijuana. He disclosed to police officers that he and two other juveniles had burglarized the defendant‘s home and had taken mushrooms as well as marijuana. The officers were given some of the mushrooms. In the affidavit in support of the application for a search warrant, an officer asserted that the mushrooms had been tested and found to be psilocybin mushrooms. The officer testified before the magistrate in support of the application for search warrant that the mushrooms had been given to another officer who took them to someone from the State Crime Laboratory and reported back that they were “good” mushrooms. At the hearing to contravene the warrant, defendant presented evidence that the test was casual and not scientifically accurаte. Defendant initially challenges the trial court‘s finding that the person who examined the mushrooms had sufficient experience to form an expert‘s opinion as to the presence of psilocybin, based solely upon visual observation. This finding is supported by substantial evidence and will therefore be upheld on appeal. State v. Short, 12 Wn. App. 125, 129, 528 P.2d 480 (1974).
Defendant also asserts that when the officer relayed what he had been told to the magistrate without personal knowledge of what had been done to test the mushrooms, it аmounted to reckless disregard of the truth requiring suppression of the evidence. We find no reckless misrepresentation on the bare showing that an officer repeated hearsay related by another officer involved in the same investigation. In making a probable cause determination, a magis
Defendant further argues that because the juvenile was unnamed when hе testified before the magistrate, his statements could not be relied upon to support the magistrate‘s authorization of a search warrant. We note that the juvenile was under oath, made a statement against penal interest in admitting the burglary, and was сarefully examined by the magistrate. An informant‘s veracity or reliability, and the basis of his knowledge are “closely intertwined issues that may usefully illuminate the commonsense practical Question whether ‘probable cause’ exists.”
State v. Bowers,
36 Wn. App. 119, 122, 672 P.2d 753 (1983). The testimony of the juvenile meets this test. Although unnamed, he testified before the magistrate that he was inside the defendant‘s residence 2 days before the
Defendant attempts to distinguish State v. Hett, 31 Wn. App. 849, 851, 644 P.2d 1187 (1982) on the ground that the juvenile burglar/informant who testified before the magistrate in that case was named. The court in Hett assessed the informant‘s credibility on the basis of all the surrounding circumstances. The fact that he was named in the affidavit was merely “considered with other indicia leading to a conclusion of reliability.” State v. Hett, supra at 852. Significantly, all of the other indicia relied upon to uphold veracity in Hett are present in the instant case: appearance before the magistrate, making statements against penal interest, and recounting of detailed facts supporting the inference of personal observation. State v. Hett, supra at 852. Defendant contends without citation of authority that revealing a name is an essential foundation, like the requirement of an oath, for receрtion of evidence by a court. Assignments of error unsupported by citation of authority will not be considered on appeal unless well taken on their face. State v. Kroll, 87 Wn.2d 829, 838, 558 P.2d 173 (1976). Having assessed the totality of these circumstances, the magistrate did not err in issuing the warrant. The motion to contravene and suppress was properly denied.
Defendant also argues that the search warrant was inadequate because the information supporting it was too remote in time. The warrant was issued 2 days after the break-in by the juvеniles, but only hours after information was obtained by officers concerning the contents of the home. A reasonable person could conclude under the facts
Defendant next contends that the search exceeded the scope of the warrant. In executing the warrant, the officers entered the kitchen. Expecting to find a closet or bedroom, an officer opened the door to the basement. The warrant was for the search of the downstairs apartment at the address given in the warrant. A commonsense reading of the warrant would include the connected basement as an integral part of the apartment. Beforе extending the search to the upstairs apartment, the officers noted speaker wires leading from the first floor upstairs, as well as an extension cord leading upstairs. The psilocybin mushrooms had been discovered growing in large quantities in the areas that had been searched in the lower apartment and basement. Based upon these findings, the officer telephoned the magistrate to obtain authority to extend the search to the entire building, from which 4,400 Mason jars containing psilocybin mushrooms were ultimately removed. Probable cause clearly existed for the extension of the authorized search to the entire residence.
Next, the defendant argues that the trial court erred when it held that the marijuana found at his residence was properly seized under the plain view doctrine. He contends that since marijuana was specified in the warrant, it could not have been found in his residence inadvertently and consequently the plain view doctrine does not apply.
The record in the instant casе reveals that the marijuana was discovered in a place where no reasonable expectation of privacy existed.
The requirement in [State v.] Daugherty, [94 Wn.2d 263, 616 P.2d 649 (1980), cert. denied, 450 U.S. 958 (1981)] that the discovery of contraband be “inadvertent” does not mean that the officer must act with a completely neutral and benign attitude when investigating suspicious activity. Such a rule would contradict the first requirement in Daugherty that the officer have a prior justification for the intrusion, id. at 267, when conducting an investigation of apparently clandestine activity that discloses evidence in “plain view.” Because such investigations necessarily demand an inquiring and cautious disposition оn the part of the officer involved, the term “inadvertent,” in the context of the plain view doctrine, simply means that the officer discovered the evidence while in a position that does not infringe upon any reasonable expectation of privacy, and did not take any further unreasonable steps to find the evidence from that position.
State v. Callahan, 31 Wn. App. 710, 712-13, 644 P.2d 735 (1982). The trial court did not err by denying the motion to suppress the marijuana.
Defendant assigns error to denial of his motion to dismiss, arguing that
Defendant also argues that even if the statute encompasses a natural plant containing psilocybin, the statute is void for vagueness and provides inadequate notice of the proscribed conduct. Guilty knowledge or intent is not a requirement of the statute, State v. Cleppe, 96 Wn.2d 373, 380, 635 P.2d 435 (1981), cert. denied, 456 U.S. 1006 (1982), thus distinguishing the present case from Fiske v. State, supra at 424, where a similar statute was held to be unconstitutional as applied.
Defendant also asserts that he had a reаsonable belief in the legality of his conduct and assigns error to the failure to instruct the jury accordingly and denial of his motion for a new trial. He argues that his offer of proof concerning a common misunderstanding of the law relating to psilocybin mushrooms justifiеd some instruction on his good faith belief or on ignorance and/or mistake of law or fact. Defendant cites no authority for this contention. A mistake of law is not a defense. State v. Takacs, 35 Wn. App. 914, 918, 671 P.2d 263 (1983). Every sane person is presumed to know the law. State v. Spence, 81 Wn.2d 788, 792, 506 P.2d 293 (1973), rev‘d on other grounds, 418 U.S. 405, 41 L. Ed. 2d 842, 94 S. Ct. 2727 (1974). The trial court properly refused instructions concerning defendant‘s assertеd good faith belief.
Defendant‘s motion for a new trial was based in part upon a contention of selective enforcement of the law concerning psilocybin mushrooms. In support of his motion, the defendant filed copies of newspaper articles published in the Bellingham Herald concerning mushrooms. One quoted a deputy prosecuting attorney as saying, “Halluci
Affirmed.
Durham, C.J., and Ringold, J., concur.Reconsideration denied September 6, 1984.
Review denied by Supreme Court December 7, 1984.