5 Wash. App. 454

[No. 629-1.

Division One—Panel 1.

June 14, 1971.]

The State of Washington, Respondent, v. Leroy Arnold Harrison, Appellant.

Kempton, Savage & Gossard and Anthony Savage, Jr., for appellant.

Christopher T. Bayley, Prosecuting Attorney, and James J. Lamont, Deputy, for respondent.

Utter, J.

Leroy Harrison appeals his conviction of the crime of bookmaking. The sole issue raised by the six assignments of error is whether a sworn affidavit for a search warrant signed by a federal agent established probable cause to believe that interstate gambling was being conducted in certain premises. We hold probable cause was established and 'affirm the conviction of the defendant.

Clifford Winkler, Jr., Truman Adair Ordell, and Leroy Harrison were charged with the crime of bookmaking, and *455Winkler and Harrison were found guilty. Prior to the arrest of Harrison and his codefendants, an affidavit was signed by a federal agent alleging he had reason to believe that in an apartment specifically listed in Seattle, there was property being concealed relating to the operation of a gambling business in violation of federal laws prohibiting interstate gambling. A search warrant was issued for the apartment, based upon the agent’s affidavit, and upon executing it, Harrison and the others were arrested inside the apartment. Considerable gambling and bookmaking paraphernalia, later introduced at trial, over objection, as state’s exhibits, were seized.

The basis for attacking the issuance of the search warrant is that the affidavit1 did not establish that probable *456cause existed to believe interstate facilities were being used to conduct the gambling operations. An analysis of the affidavit indicates the first informant usually placed bets with one of the defendants on out-of-state horse racing events and was aware that defendant Clifford Winkler had been previously arrested and successfully prosecuted for violation of interstate gambling statutes.

*457The second informant told agent Smith that for approximately 1% years prior to June of 1969, he had done gambling business with Winkler and that the bets he placed were for horse races usually held outside the state of Washington.

The third informant advised agent Smith that he had conducted gambling transactions with Winkler for approximately 1 year prior to the issuance of the affidavit. Other bookies purchased “line” or “odds” information from Winkler who in turn obtained the information from outside the state of Washington. All sporting events from all over the country were held through Winkler’s gambling operation. The affidavit further reflected that an associate of Winkler’s had been previously arrested with information on sporting schedules from Chicago in his possession and that the en*458velope in which the information was contained had a return address on it listing an alias of Winkler’s. The affidavit also stated that this informant had observed Winkler placing a short-wave radio in an east-facing window of the apartment and that on the basis of agent Smith’s experience, short-wave radios were used to obtain immediate results of distant sporting events.

The reliability of the informants is not questioned by Harrison, and the content of their information as set out in the affidavit is the sole question before us.

To rise to the level of probable cause, the courts consider only probabilities, and a prima facie showing of criminal activity is not required. Affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial and, in judging probable cause, issuing magistrates are not to be confined by restrictions on the use of good common sense. Their determination of probable cause should be paid great deference by reviewing courts. Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969); State v. Barnes, 76 Wn.2d 234, 456 P.2d 337 (1969). Probable cause exists where “the facts and circumstances within their [the arresting officers] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280, 288 (1925).

The information of the third informant, set forth in the affidavit, would be sufficient, without reference to the other informants, to establish probable cause to believe interstate activities were taking place, if his statements could be credited as worthy of belief by the magistrate. Harrison attacks this informant’s information as failing to set forth, with sufficient specificity, the underlying circumstances from which the informant reached his conclusion. He contends Spinelli v. United States, supra and Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964) *459compel the conclusion that the magistrate would be unable to consider these allegations in the affidavit. Harrison specifically complains of the failure of the affidavit to set out where this particular informant obtained the information, how he obtained it—whether by telephone, mail, or telegraph—when he obtained it, whether Winkler admitted to the informant he did what was alleged, in what manner the informer obtained the information, and lastly on what basis the informant did gambling business with Winkler.

The court in Spinelli indicated a magistrate could not consider information in an affidavit in that case inasmuch as:

Though the affiant swore that his confidant was “reliable,” he offered the magistrate no reason in support of this conclusion. Perhaps even more important is the fact that Aguilar’s other test has not been satisfied. The tip does not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation. We are not told how the FBI’s source received his information — it is not alleged that the informant personally observed Spinelli at work or that he had ever placed a bet -with him. Moreover, if the informant came by the information indirectly, he did not explain why his sources were reliable. ... In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.

Although the questions raised by Harrison are not answered in detail in the informant’s tip set forth in the affidavit, there is no question about the reliability of the informer. In addition, sufficient facts are set forth in the affidavit to indicate that informer No. 3 had personally done gambling business with Winkler and Harrison and sufficient detail is set forth to indicate he was personally present at the premises where the gambling took place. These factors distinguish the present case from Spinelli *460and, although, more information undoubtedly would have been required at trial to prove the truth of the informer’s statements beyond a reasonable doubt, this is not the standard necessary to establish “probable cause.”

Inasmuch as the statement of informer No. 3 was sufficient standing alone to establish a basis upon which the magistrate’s exercise of discretion can be upheld, we do not comment on the other informants’ allegations contained in the substantiating affidavit for the search warrant, except to point out that they establish a high degree of internal corroboration of the stories and thereby aid in establishing probable cause.

The judgment of the trial court is affirmed.

Farris, A.C. J., and Williams, J., concur.

State v. Harrison
5 Wash. App. 454

Case Details

Name
State v. Harrison
Decision Date
Jun 14, 1971
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5 Wash. App. 454

Jurisdiction
Washington

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