TULALIP v. CUELLAR AND LOOKS TWICE

6 NICS App. 148, TULALIP v. CUELLAR AND LOOKS TWICE (August 2004)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

TULALIP, WASHINGTON

The Tulalip Tribes, Appellant/Plaintiff,

Patricia Cuellar and Shannon Looks Twice, Respondents/Defendants.

No.’s TUL-Cr-DO-2003-0403, 0404 (August 22, 2004)

SYLLABUS^*

Trial court found search warrant issued by another judge of the same court lacked sufficient grounds, and trial court therefore granted a motion to suppress the evidence seized under the warrant and dismissed the complaint. Court of Appeals holds (1) the standard of review to be applied to the original grant of the search warrant is the clearly erroneous standard, (2) the standard for the issuance of a search warrant is merely that it would be reasonable to seek the evidence in the place indicated in the affidavit supporting the motion for the warrant, (3) the judge issuing the search warrant had a reasonable basis for doing so, (4) it was error for the second judge to invalidate the issuance of the warrant by the first judge. Trial court order granting motion for suppression reversed and matter remanded for further proceedings.

Before: Jane M. Smith, Chief Justice; Edythe Chenois, Justice; John Sledd, Justice.

Appearances: Tom Russell, Tulalip Prosecutor’s Office, for Appellant, Tulalip Tribes; and Eric Peterson and Misty Cummings for Appellee, Patricia Cuellar; counsel Michael D. McGee did not appear for Appellee Shannon Looks Twice.

OPINION

Smith, C.J.:

SUMMARY

Tulalip Tribal Police received information from a traffic stop that Shannon Looks Twice had sold marijuana out of her fireworks stand #69, located on the reservation. An affidavit was written by the officer and presented to a Tulalip Tribal judge requesting that a search warrant be

6 NICS App. 148, TULALIP v. CUELLAR AND LOOKS TWICE (August 2004) p. 149

issued. After reviewing the affidavit and motion, the judge granted the search warrant. The search warrant was executed and two individuals were found to have marijuana on their person and under their control in the fireworks stand. The two individuals were Shannon Looks Twice and Patricia Cuellar. Both were cited for drug violations. Prior to trial, a motion was entered requesting the Court to suppress evidence seized as a result of the search warrant. A different judge heard the motion, reviewed the warrant and found that there were insufficient grounds to issue the warrant. He subsequently granted the motion and dismissed the cases. Appellant Tribes timely filed an appeal. An opening brief was filed by Appellant. Appellees failed to file a brief, but Appellee Cuellar was allowed to present supporting documentation at oral arguments. Counsel for Appellee Shannon Looks Twice did not appear at oral argument.

ISSUE

The issue before the Court is whether or not the judge who heard the motion to suppress was in error when he granted the motion to suppress and dismissed the case.

DISCUSSION

Appellant argues that the Court below should not have granted the motion to suppress. When reviewing a judge’s decision to issue a warrant, the standard of review is the clearly erroneous standard. This means that the reviewing judge should give deference to the issuing judge’s decision unless it is very clear that the issuing judge made an error in judgment. The issuing judge has the law enforcement affiant before him, he has the opportunity to observe the affiant’s integrity and truthfulness, and to ask questions that will help the judge to make a final decision on whether to issue a search warrant or not. Clearly the issuing judge is in possession of a great deal more information than a reviewing judge would have several days after the fact. The clearly erroneous standard also sets the tone for the review. Even though the reviewing judge would not have issued a search warrant on the same facts, he must put his personal opinion aside and give deference to the issuing judge’s decision and opinion, unless clearly erroneous. The Court of Appeals is given the same standard of review, though in the instant case we must look to the original decision to determine if the reviewing judge was in error.

The Courts historically encourage the use of search warrants over searches without warrants. They recognize that once a warrant has been obtained, intrusion upon interests protected by constitutional guarantees are less severe than might otherwise be the case. Federal appeals courts require that the initial determination of probable cause be given “great deference.” United States v. Alexander, 761 F.2d 1294 (9th Cir. 1985). Appellate courts have said an issuing magistrate’s warrant should be reversed on probable cause grounds only if it is “clearly erroneous.” United States v. Stannert, 762 F.2d 775, 779 (9th Cir. 1985). The duty of a reviewing court is simply to ensure that the issuing magistrate had a “substantial basis for conclud[ing] that probable cause existed.” Jones v. United States, 362 U.S. 257, 261 91960). A reviewing court “should not invalidate warrant[s] b;y interpreting affidavits in a hyper technical rather than a commonsense manner.” Illinois v. Gates, 462 U.S. 213, 236 (1983).

6 NICS App. 148, TULALIP v. CUELLAR AND LOOKS TWICE (August 2004) p. 150

In the instant case, Judge Bass had before him a request for a warrant to search a fireworks store for marijuana. The affidavit was issued based on the information given by a person who gave his name, address and date of birth. We agree that if a person is willing to put his name on a statement and reveal who he is, then that person should be entitled to credibility. He was not shielding himself by anonymity, which in this case might have been reasonable to request on his part. The affidavit also stated a specific stand, a specific person he bought marijuana from and that he had purchased drugs in the past from her. We are satisfied that he was knowledgeable about what he was talking about. It appears from the record that Judge Weissmuller, the reviewing judge, agreed Judge Bass up to this point. Where Judge Weissmuller appeared to disagree with Judge Bass was with the issue of staleness.

The informant indicated that he had bought drugs from Ms. Looks Twice two days before the affidavit was issued. While we might agree that two days might be questionable in some instances, in this case we must determine if the two day period was reasonable for Judge Bass to conclude that the drugs would still be at the fireworks stand. For probable cause to exist, a magistrate need not determine that the evidence sought is in fact on the premises to be searched or that the evidence is more likely than not to be found where the search takes place. United States v. Bowers, 534 F.2d 186, 192 (9th Cir. 1983). The magistrate need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit. United States v. Hendershot, 614 F.2d 648, 654 (9th Cir. 1980). Here the judge was presented with an affidavit that stated the informant had bought drugs from this person, at this stand, only two days before. She was at the stand three hours earlier on the day the affidavit was requested. It is reasonable to assume that a person selling drugs would have more than one bag of drugs to sell, especially since the affidavit indicated that drugs had been bought on at least four separate occasions.

Ms. Cuellar was at the fireworks stand when the search warrant was executed. Her case was based on evidence gathered as a result of the execution of the search warrant.

We find that Judge Bass had reasonable cause to issue the search warrant. We hold that Judge Weissmuller erred in finding that the search warrant was not valid and granting the motion to suppress.

Appellant Shannon Looks Twice did not participate either by filing a brief or appearing at oral arguments. We hold that Ms. Looks Twice waived her right to appeal by failing to prosecute her case.

It is THEREFORE ORDERED that the appeal is AFFIRMED. The Order granting the Motion to Suppress is reversed. This matter is remanded to the Trial Court for proceedings consistent with this Order.

The syllabus is not a part of the Court's Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this Reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.