Opinion
No. 33920-0-II.
January 3, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-01639-0, Thomas Felnagle, J., entered October 7, 2005.
Counsel for Appellant(s), Sheri Lynn Arnold, Attorney at Law, WA.
Counsel for Respondent(s), Todd Andrew Campbell, Pierce Co Pros Attorneys Ofc, WA.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Armstrong and Hunt, JJ.
Chad Jensen appeals his conviction of three counts of first degree possession of stolen property, RCW 9A.56.140(1), .150(1). He argues that the trial court improperly admitted evidence found in a search and erred in denying his motions to suppress and dismiss brought at trial and after the State rested. We affirm.
FACTS
On March 30, 2004, a Pierce County Sheriff's Department detective was in the area of Jensen's father's house in Puyallup, where Jensen lived at the time. The detective sought information to secure a warrant to search the house because he believed Jensen trafficked in stolen property.
The detective's name is Jay Jensen. For purposes of clarity, we refer to him as detective.
The detective based his belief on reports from citizen informants who observed Jensen at burglary sites and burglary victims who had retrieved stolen items from his father and his father's house. A number of area burglaries involved the same pattern of the perpetrator cutting a large chain or lock with a cutting tool. The detective had previously seen Jensen with a pair of bolt cutters in the bed of his truck. The detective also had information that a March 13, 2004 search of storage lockers rented in Jensen's name revealed stolen property.
The Pacific Police Department conducted the search pursuant to a King County search warrant.
While he was in the area of Jensen's father's house, the detective saw Jensen leaving his father's driveway in a gold truck pulling a large white commercial trailer with a tractor on it. The truck lacked a front license plate, a moving violation. The trailer had a license plate.
The detective called the Law Enforcement Support Agency (LESA) records division and requested a records search on the trailer license plate. The records report indicated that the trailer license plate was associated with a smaller blue homemade utility trailer.
The detective did not stop the truck immediately because he did not think it was safe to pass through traffic at the time. He lost sight of the truck and requested assistance from Washington State Patrol (WSP) officers. He told WSP officers that Jensen was driving a truck missing a license plate and hauling a trailer that did not have the appropriate license plate. He also provided information about his personal experience regarding Jensen. Two-and-one-half to three hours later, WSP officers stopped Jensen heading east on I-90.
WSP officers drew guns after stopping Jensen because the situation had "escalated" beyond the point of a traffic stop for a missing license plate. II Report of Proceedings at 79. Nothing in the record indicates why the incident escalated.
Shortly after WSP officers stopped Jensen, the detective arrived at the site. Jensen was the only person in the truck. The detective arrested him, read him his Miranda rights, and then asked him who owned the tractor. Jensen responded, "Some guy. I have his name at home." Report of Proceedings (RP) (July 6, 2005) at 40.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The detective then searched the truck cab. He found three baggies containing methamphetamine and a license plate. He did not find any ownership documents for the truck, trailer, or tractor.
The detective ran the vehicle identification numbers (VIN) for the truck, trailer, and tractor. The VIN search revealed that owners of the truck, tractor, and trailer had reported them stolen.
The day after Jensen's arrest, the detective applied for a warrant to search Jensen's father's house, basing the application on reports from citizen informants. He also provided information about the use of cutting tools in a number of the burglaries and Jensen's possession of bolt cutters; the stolen property police found in Jensen's storage lockers; and Jensen's arrest for the stolen truck, trailer, and tractor. A superior court judge granted the search warrant.
The detective obtained a warrant and searched the house the same day. During the search, officers found several custom-made wagons, which a vendor from a local swap meet reported stolen in October 2003.
On April 2, 2004, the State charged Jensen with four counts of first degree possession of stolen property and one count of unlawful possession of a controlled substance.
Count I for the truck, count II for the tractor, count III for the trailer, and count IV for the custom-made wagons.
On July 6, 2005, at a pretrial CrR 3.6 hearing, Jensen moved to suppress evidence found pursuant to the search warrant. He argued that the search warrant was not valid because insufficient evidence established the citizen informants' basis of knowledge and credibility and because the information in the application was stale. He did not raise any other grounds for suppression. The superior court judge denied the motion.
Jensen's jury trial began on August 15, 2005. Before jury selection started, he moved to suppress "all evidence" and to dismiss. Clerk's Papers (CP) at 51. He argued that his arrest was invalid, claiming, "[W]e have a bad search warrant that's the basis for a bad arrest. . . . So, this case must be dismissed. The evidence has to be suppressed. The arrest has to be suppressed." I RP at 7. The State argued that his motion was untimely.
The superior court judge hearing the case determined that the motion was timely but denied it. The judge found that "there's no basis for [the motion to suppress], given the fact that [the judge at the CrR 3.6 hearing] has already ruled that the search warrant was valid." I RP at 17. The judge further said that "to suggest that this Court ought to re-examine that decision with the idea that I might find otherwise on a related, but somewhat different, matter is inappropriate." I RP at 17.
Before the State rested, it moved to dismiss count I of first degree possession of stolen property (involving the truck). Jensen did not object and the trial court granted the motion.
After the State rested, Jensen moved to dismiss counts II and III of first degree possession of stolen property (involving the trailer and tractor) and the unlawful possession of a controlled substance count. He claimed that, based on the testimony at trial, the detective's stop was pretextual, there was not probable cause for his arrest, and that the search of the truck's cab subsequent to the arrest was unlawful.
The trial court denied Jensen's motion, stating, "[T]he defense can't use their declining to set a 3.6 hearing as a substitute for what we now have as an imperfect record with regard to the 3.6 issue. . . . [T]o take what was allowable at trial and say that's the parameters on which to make a decision on a motion to suppress is fundamentally unfair." III RP at 180.
The jury found Jensen guilty of three counts of first degree possession of stolen property. It found him not guilty on the count of unlawful possession of a controlled substance. He appeals.
ANALYSIS CrR 3.6 Motion
First, Jensen claims the trial court erred in denying his CrR 3.6 motion to suppress and that the search warrant was invalid.
Standard of Review
We review a trial court's denial of a motion to suppress by considering whether substantial evidence supports the challenged findings and whether those findings support the trial court's conclusions of law. State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001). Jensen does not challenge any of the trial court's findings of fact; accordingly, we consider them verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
Staleness
Jensen argues that the trial court should have suppressed the evidence because information in the warrant application was stale and could not show ongoing criminal activity. We disagree.
An affidavit in support of a search warrant must set forth sufficient facts and circumstances to establish a reasonable probability that criminal activity is occurring or is about to occur. State v. Higby, 26 Wn. App. 457, 460, 613 P.2d 1192 (1980). We use common sense when determining if information is stale and may consider the amount of time between the known criminal activity and the issuance of the warrant, the nature and scope of the suspected criminal activity, and the nature of the items the applicant seeks to seize. State v. Maddox, 152 Wn.2d 499, 505-06, 98 P.3d 1199 (2004). The key is whether the property sought is on the premises the applicant seeks to search at the time the judge issues the warrant. State v. Johnson, 17 Wn. App. 153, 156, 561 P.2d 701 (1977).
Although the events detailed in the search warrant application span nearly two years, they suggest a commonsense determination of continuing and contemporaneous possession of stolen property at Jensen's father's house. The application lists two occasions when theft victims recovered stolen property from Jensen's father or his father's house. These events showed that Jensen engaged in a pattern of keeping stolen property at his father's house. Jensen's March 30, 2004 arrest involving stolen property and the stolen property recently revealed in his storage lockers established ongoing suspected criminal activity.
A review of the information in the search warrant application provides a commonsense presumption that Jensen engaged in ongoing criminal activity and would be storing stolen property, such as the custom-made wagons, at his father's house. The information in the warrant was not stale.
Citizen Informant
Also, Jensen claims the warrant application did not contain sufficient evidence to establish the citizen informants' basis of knowledge or reliability. Again, we disagree.
An issuing judge may base its determination of probable cause on information from an informant. State v. Gaddy, 152 Wn.2d 64, 71, 93 P.3d 872 (2004). An affidavit supporting a search warrant that relies on information from citizen informants must establish the informants `reliability and sufficiently identify the basis for the informants' information. State v. Jackson, 102 Wn.2d 432, 433, 435, 688 P.2d 136 (1984) (citing Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964)).
A. Basis of Knowledge
An informant's personal observations satisfy the basis of knowledge prong when the informant declares he or she personally has seen the facts asserted and is passing on first-hand information. Jackson, 102 Wn.2d at 437. Here, the affidavit included first-hand observations by citizen informants. One named informant stated that he personally retrieved his stolen property from Jensen's father. Another named informant filed a police report for a stolen lawnmower and later stated that she found the stolen lawnmower at Jensen's father's house. And a third named informant reported that Jensen's swap meet booth was close in proximity to a vendor who reported stolen merchandise.
The trial court correctly concluded that the citizen informants had a sufficient basis of knowledge because they personally saw the facts asserted and were passing on first hand observations.
B. Reliability
An issuing magistrate may presume a named citizen informant reliable. State v. Rodriguez, 53 Wn. App. 571, 574-75, 769 P.2d 309 (1989). As we have explained,
When the informant is an ordinary citizen . . . and his identity is revealed to the issuing magistrate, intrinsic indicia of the informant's reliability may be found in his detailed description of the underlying circumstances of the crime observed or about which he had knowledge. If the underlying circumstances are sufficiently detailed to satisfy the first prong of Aguilar-Spinelli, they may themselves provide built in credibility guides to the informant's reliability, thus fulfilling the second prong as well. The detailed information encompassed in the affidavit's internal content attests to the informant's reliability by its very specificity; no independent corroboration is required.
State v. Northness, 20 Wn. App. 551, 557, 582 P.2d 546 (1978) (citations and internal quotation marks omitted).
Here, the affidavit satisfied the basis of knowledge prong because of the citizen informants' first-hand observations. Accordingly, because the informants in the affidavit were named citizens who provided detailed information about their first-hand observations, the affidavit also satisfied the reliability prong.
Nexus Between Crimes and Property
Additionally, Jensen argues that the search warrant was invalid because it only provided circumstantial facts which failed to link him to the crimes committed and failed to establish a connection to his father's property. We disagree.
We review a magistrate's issuance of a search warrant for abuse of discretion. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). A magistrate may not issue a search warrant absent probable cause. Cole, 128 Wn.2d at 286. We accord the issuing magistrate great deference in its determination of probable cause and resolve any doubts as to the existence of probable cause favor of the warrant. Cole, 128 Wn.2d at 286.
Probable cause exists when an affidavit supporting the search warrant sets forth facts sufficient for a reasonable person to conclude the defendant probably is involved in criminal activity. Cole, 128 Wn.2d at 286. Facts that, standing alone, would not support probable cause can do so when viewed together with other facts. Cole, 128 Wn.2d at 286. A magistrate may "draw reasonable inferences from the facts and circumstances set forth in the supporting affidavit." State v. Maffeo, 31 Wn. App. 198, 200, 642 P.2d 404 (1982).
The issuing judge properly drew reasonable inferences from the facts and circumstances set forth in the supporting affidavit. Although the facts and circumstances in the affidavit, standing alone, might not have supported probable cause, the issuing judge properly found that when viewed together with other facts in the affidavit, the facts and circumstances provided probable cause to issue the warrant.
The information in the warrant application was not stale; the named citizen informants provided first hand observations for the warrant affidavit; and the issuing magistrate did not abuse its discretion because the facts and circumstances, when viewed together, provided probable cause to issue the warrant. Accordingly, the trial court did not err in denying Jensen's CrR 3.6 motion to suppress.
Motion to Suppress at Jury Trial
Next, Jensen argues that the trial court erred in denying his motion to suppress made at his jury trial. We disagree.
The Superior Court Criminal Rules "provide for the just determination of every criminal proceeding." CrR 1.2. A trial court must construe them "to secure simplicity in procedure, fairness in administration, effective justice, and the elimination of unjustifiable expense and delay." CrR 1.2.
Jensen first moved to suppress evidence found at his father's house at a July 6, 2005 CrR 3.6 hearing. He argued that the search warrant was invalid, and the judge hearing the matter denied his motion. But at his CrR 3.6 hearing, he did not move to suppress based on an arrest lacking probable cause.
Instead, on August 9, 2005, prior to jury selection, Jensen moved to suppress "all evidence obtained" and dismiss the matter. CP at 51. He argued that the search warrant was invalid and, as a result, did not provide probable cause for his arrest. He did not present any new evidence to support his motion and conceded that the CrR 3.6 hearing judge had already decided the search warrant issue.
The trial court properly exercised its discretion in denying Jensen's motion. Jensen had the opportunity to argue this motion at his CrR 3.6 hearing, but he declined to do so.6 When he raised this motion at trial, he placed the trial court in a position of making a ruling that directly conflicted with the CrR 3.6 hearing judge's ruling. The trial court recognized that the CrR 3. hearing judge had already resolved the grounds upon which Jensen brought his motion.
If Jensen wishes to challenge his counsel's failure to raise this issue at his CrR 3.6 hearing, he would have to raise it in a personal restraint petition under RAP 16.4.
Accordingly, the trial court properly acted within its discretion under CrR 1.2 by eliminating any "unjustifiable expense and delay."
Motion to Dismiss After the State Rested
After the State rested its case, Jensen moved to dismiss, arguing that the State improperly presented evidence found after (1) a pretext stop, (2) an arrest without probable cause, and (3) an invalid search of the cab of the truck incident to his arrest. He argues that the trial court should have dismissed his case because trial testimony did not prove that his arrest was lawful. We disagree.
We review a denial of a motion to dismiss criminal charges for manifest abuse of discretion. State v. Woods, 143 Wn.2d 561, 582, 23 P.3d 1046 (2001). Dismissals are "`an extraordinary remedy available only when there has been prejudice to the rights of the accused which materially affected his or her rights to a fair trial.'" Woods, 143 Wn.2d at 582 (quoting State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993)) (internal quotation marks omitted). A trial court abuses its discretion when its decision is manifestly unreasonable or rests on untenable grounds. State v. C.J., 148 Wn.2d 672, 700, 63 P.3d 765 (2003).
A motion to suppress must be timely. State v. Baxter, 68 Wn.2d 416, 423, 413 P.2d 638 (1966) (holding exclusion of improperly obtained evidence is a privilege, which the defendant can waive if he does not seasonably object); see State v. Duckett, 73 Wn.2d 692, 694-95, 440 P.2d 485 (1968). Motions to suppress made at the close of the State's case are clearly untimely. Baxter, 68 Wn.2d at 424.
After the State rested, Jensen moved to dismiss, asserting that trial testimony did not support admission of the evidence. But his motion is a challenge to evidence that he should have moved to suppress in his CrR 3.6 hearing. Had he challenged the evidence at a CrR 3.6 hearing, the State would have been able to submit hearsay testimony that it could not submit at trial regarding the stop, arrest, and subsequent search of the truck. He bases his motion on an incomplete record and seeks to benefit from his failure to raise these suppression issues at his CrR 3.6 hearing. The trial court did not abuse its discretion in denying his motion to dismiss.
Even if Jensen properly raised this motion at his CrR 3.6 hearing, the limited record before us shows a lawful arrest. The detective observed him driving without a license plate, which is a moving violation. When the detective ran a LESA records request for the trailer license plate, the report showed that the license plate was associated with a different trailer. Additionally, the detective had reports from citizen informants regarding Jensen's involvement in burglaries and knowledge that police recently found stolen property in storage lockers rented in his name. Based on this information, the detective had a reasonable suspicion, grounded in specific and articulable facts, that he was involved in a crime. See State v. Kinzy, 141 Wn.2d 373, 384-85, 5 P.3d 668 (2000). Therefore, the stop was not pretextual.
That WSP officers conducted the stop does not alter this analysis based on the "fellow officer" rule. See State v. Mance, 82 Wn. App. 539, 542, 918 P.2d 527 (1996).
After the detective stopped Jensen, he ran a records check for the VIN of the truck, trailer, and tractor, which revealed they were stolen. Because the detective knew of facts and circumstances, based on reasonably trustworthy information sufficient to warrant a person of reasonable caution to believe that Jensen had committed an offense, probable cause existed for his warrantless arrest. See State v. Terrovona, 105 Wn.2d 632, 643, 716 P.2d 295 (1986).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
________________ Armstrong, J.
________________ Hunt, J.