Opinion
No. 21037-5-III.
Filed: February 12, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Chelan County. Docket No: 01-1-00192-3. Judgment or order under review. Date filed: 04/08/2002. Judge signing: Hon. Lesley a Allan.
Counsel for Appellant(s), Donald G. Miller, Attorney at Law, 422 W Riverside Ave Ste 518, Spokane, WA 99201-0302.
Counsel for Respondent(s), Roy S. Fore, Attorney at Law, Chelan County Courthouse, PO Box 2596, Wenatchee, WA 98807-2596.
Steven Sines appeals his jury convictions for: (1) rape of a child in the first degree — RCW 9A.44.073 (two counts); (2) child molestation in the first degree — RCW 9A.44.083 (two counts); and (3) unlawful possession of marijuana — RCW 69.50.401(d). He contends the trial court erred when it denied his CrR 3.6 motion to suppress evidence based on an allegedly defective search warrant. Based on the rule of law set forth in State v. Douglas, 71 Wn.2d 303, 428 P.2d 535 (1967), we determine the trial court did not abuse its discretion when it determined the officer requesting the search warrant was under oath at the time he recited the facts supporting probable cause to the judge. Accordingly, the convictions are affirmed.
Facts
On April 23, 2001, an 11-year-old girl reported to a school counselor that she had been sexually abused by her father. The school counselor contacted a Child Protective Services caseworker, Rocci Hildum, who accompanied Detective Sergeant Bruce Long of the Chelan County Sheriff's Office to the school to interview the girl in the presence of the counselor. The girl described an incident of sexual contact with her father that had occurred the previous night. She told the officer that a semen stain might be found on the floor of her bedroom next to her bed.
The decision was made to place the young girl in foster care pending further investigation of the case. Accordingly, it was the sergeant's opinion that time was of the essence in obtaining a warrant to search the Sines residence for evidence of the reported crime because school was about to be dismissed for the day and he did not want the victim's mother to become alarmed when the child did not come home directly after school. The closest judge, available to issue a search warrant, was at least 30 minutes away. Based on the information gathered during the interview, at approximately 3:10 p.m. Sergeant Long telephoned a trial court judge serving on the Chelan County Superior Court bench. The call was recorded contemporaneously with the search warrant application and a transcript was later prepared. Of importance to this appeal is the fact that the trial court neglected to immediately administer an oath to Sergeant Long prior to receiving his information regarding the warrant application. Even so, based on the evidence presented to the judge by the sergeant regarding the alleged crime and the specific evidence of that crime expected to be found in the Sines home, the court approved the search warrant application.
A search of the Sines residence resulted in the discovery of evidence of the described semen stain on the bedding and floor in the victim's room. During the course of the search for other evidence of the crime, officers discovered, in plain view, a large quantity of marijuana in the master bedroom. Based on discovery of the evidence of a different crime, Sergeant Long again telephonically contacted the same judge in order to request expansion of the scope of the original search warrant in order to authorize the seizure of biological samples from Mr. Sines and the authority to search for, and seize, evidence of illegal drugs and related items. During the second conversation, the court suddenly realized it had inadvertently neglected to place Sergeant Long under oath prior to accepting the information related to the initial warrant application. The court administered the oath for both warrants at that time. After being sworn in, Sergeant Long testified the information given in the first warrant application was true and correct. After hearing the testimony relevant to the expansion of the scope of the search warrant, the second warrant request was also authorized by the trial court. Evidence related to the sexual abuse and the illegal drugs were seized by law enforcement officers.
Mr. Sines was later charged with two counts of rape of a child in the first degree, two counts of child molestation in the first degree, and one count of unlawful possession of marijuana. Prior to trial, he filed a CrR 3.6 motion to suppress the evidence seized. He argued the initial search warrant, which resulted in the discovery of the incriminating evidence, was invalid because the facts offered as evidence of probable cause of the sexual crimes had not been presented under oath. The State argued there is no formal procedure set forth in CrR 2.3 on how an oath must be administered. It maintained that case law merely required the person requesting the search warrant to unequivocally state his or her understanding of the obligation to tell the truth and his or her knowledge that legal consequences existed for the failure to do so. At the conclusion of the hearing, the court determined that no formal oath had been given prior to the issuance of the initial search warrant. It also determined the child had not consented to the search of her room nor did the exclusionary rule apply. Relying on CrR 2.3, which provides that a warrant must issue on sworn testimony, and realizing that different judges use different verbiage when swearing in witnesses, the court determined the State had presented sufficient evidence that Sergeant Long understood the oath requirement of CrR 2.3 and had presented `sworn testimony' in his first telephonic application for a search warrant. Accordingly, it found the initial search warrant valid and denied Mr. Sines's motion to suppress the evidence. Later, written findings and conclusions, which reflected the court's oral decision, were entered.
Report of Proceedings (RP) at 77.
After a jury trial, Mr. Sines was found guilty on all five counts. He received a standard range sentence. This timely appeal resulted.
Discussion
The sole issue on appeal is whether the trial court erred when it denied Mr. Sines's CrR 3.6 motion to suppress evidence seized based on an allegedly defective search warrant. He specifically assigns error to the court's finding of fact 10 and conclusions of law 8 and 9.
Finding of Fact 10 states: `That following the interview, Sergeant Long applied for a warrant, using the procedures of CrR 2.3.' Clerk's Papers (CP) at 138.
Conclusion of Law 8 states: `That Sergeant Long was `under oath' at the time of the initial application through his representations that he was an `affiant', that he was making an `affidavit', and that he was `on oath.'' CP at 142.
Conclusion of Law 9 states: `That Sergeant Long's recitals satisfied the requirements of CrR 2.3, and the United States and Washington State Constitutions by showing that he was conscience [sic] of the obligation to speak the truth and was promising to do so.' CP at 143.
The decision to issue a search warrant is based on the abuse of discretion standard. In re Pers. Restraint of Yim, 139 Wn.2d 581, 595, 989 P.2d 512 (1999). Our review of the trial court's decision to deny a motion to suppress evidence based on an invalid search warrant must necessarily include a de novo review of the issuing court's decision to grant the search warrant in the first place. State v. Perrone, 119 Wn.2d 538, 549, 834 P.2d 611 (1992). Any doubts are resolved in favor of the validity of the warrant. State v. Kennedy, 72 Wn. App. 244, 248, 864 P.2d 410 (1993). There are two requirements for the issuance of a valid search warrant. First, the warrant must be supported by probable cause to believe that evidence of a crime will be found in the place searched. Second, the facts supporting the probable cause must be sworn to under oath or accompanied by an affidavit. CrR 2.3(c).
This appeal pertains only to the sworn testimony, or oath element. The parties agree Sergeant Long did not receive any type of formal oath from the court until after the first search warrant had issued and was served. Accordingly, the critical issue becomes whether conscious statements made by an experienced officer telephonically applying for a search warrant may satisfy the requirement that a search warrant issue only upon probable cause supported by sworn testimony.
The warrant procedure is described in CrR 2.3(c), which states in relevant part: `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 . . . or sworn testimony establishing the grounds for issuing the warrant. The sworn testimony may be an electronically recorded telephonic statement.' (Emphasis added.) The State urges us to affirm the trial court's decision that Sergeant Long was under oath at the time he telephonically presented the affidavit of probable cause. It claims the sergeant made the call for the search warrant only because time was of the essence. Further, the sergeant was an experienced law enforcement officer who knew an oath was to be administered when requesting a search warrant. He also testified he knew at the time he applied for the warrant he was under an obligation to tell the truth. Similarly, the judge knew an oath was to be administered and simply forgot to do so until two hours later. The State contends this was the result of an honest mistake and the lack of a formal oath did not prejudice Mr. Sines under these circumstances.
The transcript of the telephonic warrant application and a review of the search warrant that issued are crucial to our conclusion in this matter. After securing permission to record the conversation and checking that the tape recorder was working, Sergeant Long stated:
Okay. Uh, Your Honor, uh this is an affidavit for a search warrant in the Superior Court of Chelan County, State of Washington, County of Chelan versus Steven Sines, and that's spelled S-I-N-E-S.
The undersigned on oath states uh that the affiant believes that evidence of the crime of child molestation and rape of a child[;] and contraband, fruits of the crimes and things otherwise criminally possessed or other things by means of which a crime has been committed[;] and a person for whose arrest there is probable cause[;] are located in, on or about the following described premises, vehicle and person.
CP at 205 (emphasis added). After describing the Sines residence, Sergeant Long said, `Your Honor, the affiant's belief is based upon the following facts and circumstances.' CP at 206 (emphasis added). After describing the facts and circumstances that led him to believe there was probable cause for the issuance of a search warrant, the sergeant gave the court his training experience and background stating:
I'm currently a sergeant with the Chelan County Sheriff's Office, have been employed in law enforcement for approximately 15 years. I've graduated from the Washington State Police Academy in Spokane, Washington. I also have a 4 year degree in criminal justice from the University of Washington. I've also had at least a hundred hours in continuing education and training in sexual assaults and child sexual assaults, crime scene processing and rape investigations through the Washington State Criminal Justice Training Center.
I have also worked on or completed on my own at least 40 prior sexual assault investigations involving both adults and children and have collected evidence in cases and have applied for and received search warrants in similar cases.
CP at 207. At the end of his recitation, Sergeant Long stated: `Your Honor, that concludes that affidavit, do you have any questions?' CP at 208 (emphasis added). Having no questions, the court approved the search warrant. The search warrant states in relevant part: `TO ANY PEACE OFFICER IN THE STATE OF WASHINGTON: Upon the sworn complaint made before me it appears that there is probable cause to believe that the crime(s) of child molestation and rape of a child has been committed.' CP at 204 (emphasis added).
During the suppression hearing the sergeant testified that based on his experience as a law enforcement officer and the number of times he had applied for search warrants in the past, he knew what the terms affiant, on oath, and affidavit meant in the context of applying for the initial search warrant. He also testified that he believed he was under oath at the time of the telephonic application and that he was swearing to tell the truth and knew there were legal consequences for failing to tell the truth at that time. He told the court he had applied for 25 or 30 search warrants in the past and had never had a problem with any of them. Based on these facts and the rule of law that says no particular form is required for an oath, the trial court determined Sergeant Long was under oath when he applied for the search warrant.
Mr. Sines disagrees. He maintains the trial court abused its discretion when it determined the issuing court found valid the search warrant without requiring the recitation of some type of oath that informed the sergeant he was subject to legal consequences if the information he was about to recite was not truthful. However, in this state, no particular ritualistic form is necessary in order to place someone under oath. State v. Lewis, 85 Wn.2d 769, 771, 539 P.2d 677 (1975). Black's Law Dictionary defines oath in relevant part as:
A solemn declaration, accompanied by a swearing to God or a revered person or thing, that one's statement is true or that one will be bound to a promise. The person making the oath implicitly invites punishment if the statement is untrue or the promise broken. The legal effect of an oath is to subject the person to penalties for perjury if the testimony is false.
Black's Law Dictionary 1099 (7th ed. 1999).
In State v. Douglas, 71 Wn.2d 303, 428 P.2d 535 (1967), our Supreme Court decided a similar case, which we find determinative. The Douglas case involved an application for a search warrant, although in the presence of the magistrate, which is distinguishable from our facts. The law enforcement officer requesting the warrant and the magistrate conversed about the case then the officer filled out and signed the affidavit of probable cause in the magistrate's presence. The magistrate read and signed the affidavit, without ever placing the officer under oath. The search warrant then issued, a search was completed, and stolen goods were recovered. After being charged with grand larceny, Mr. Douglas filed a motion to suppress the stolen goods because the magistrate had not ever administered an oath to the officer prior to receiving his affidavit of probable cause or issuing the search warrant. The motion was denied. In affirming the trial court's denial, our Supreme Court stated:
The affidavit signed by the officer contained much of the same language as was contained in the affidavit read telephonically by Sergeant Long to the judge and the resulting search warrant. The similar language stated "[officer's name and department] being first duly sworn on oath deposes and says." Douglas, 71 Wn.2d at 309.
We do not commend the failure to comply literally with the statute and the constitution by the officer and the court commissioner, and see no adequate excuse for it — however, the authorities support the proposition that what occurred here amounted to the taking of the necessary oath by [the officer].
Id. at 310. It went on to hold it believed the officer could have been held legally responsible if the facts in the affidavit he signed were false, making the search warrant illegal. Id. The court then stated: "We think, by construction, what occurred amounted to the taking of the necessary oath by the affiant. One may speak as plainly and effectually by his acts and conduct as he can by word of mouth." Id. (quoting Atwood v. State, 146 Miss. 662, 111 So. 865, 866 (1927)). We recognize the Douglas case is over 35 years old and has not again been cited in a search warrant case. However, the rule of law set forth therein has not been overruled. We also note that several federal cases reach the same conclusion as did the Douglas court. In United States v. Stefanson, 648 F.2d 1231, 1235 (9th Cir. 1981), the court held the failure to administer an oath prior to the officer's reading of the affidavit of probable cause did not invalidate the search warrant because the technical violation of the rule was neither deliberate nor prejudicial. As such, the constitutional oath requirement was substantially satisfied. Id. The court reasoned that suppression of evidence seized under such a warrant was not required unless there was: (1) prejudice, in the sense that the search would not have occurred or would not have been so abrasive if the search warrant rule had been followed to the letter; or (2) evidence of intentional and deliberate disregard of a provision of the rule. Id. We determine it was not an abuse of the trial court's discretion to conclude Sergeant Long was under oath when he telephonically read the facts supporting probable cause to the issuing judge.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, C.J. KATO, J., concur.