Opinion
No. 35379-2-II.
February 26, 2008.
Appeal from a judgment of the Superior Court for Jefferson County, No. 06-1-00104-0, Craddock D. Verser, J., entered August 17, 2006.
Remanded by unpublished opinion per Armstrong, J., concurred in by Houghton, C.J.; Quinn-Brintnall, J., dissenting.
Adrian Perez, Sr. appeals his conviction of methamphetamine manufacture, arguing that the search that revealed a "rolling methamphetamine lab" in the trunk of the car he was driving was unlawful. The State conceded below that the initial warrantless search of the trunk was unlawful, but argues that the officer's supporting affidavit, absent the improperly obtained information, is sufficient to establish probable cause to search the trunk. We agree, but the State must also establish that the police would have sought a warrant even if they had not looked in the trunk. Accordingly, we remand to the trial court to resolve this issue.
FACTS
One evening, Sheriff's Deputy Pernsteiner stopped the Perez's car because its license tabs had expired. Perez told Pernsteiner that he was borrowing the car, did not have his information with him, and believed that his license was suspended. He appeared very nervous, sweating and making "furtive movements" inside the car. Supp. Clerk's Papers (SCP) at 27. When Pernsteiner learned from his dispatch that Perez had felony and misdemeanor warrants outstanding, he removed Perez from the car and arrested him. A search of Perez revealed a small baggie of white powder in the front right watch pocket of his trousers. After being informed of and waiving his Miranda rights, Perez acknowledged that the powder was methamphetamine.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Pernsteiner and another sheriff's deputy, Charles E. McCarty, then searched the passenger compartment of the vehicle incident to the arrest. They discovered a small digital scale on the passenger side floor, some new coffee filters and a new coiled length of plastic hose in the back seat, and a baggie in the glove compartment containing several used hypodermic needles and used coffee filters. The baggie had a "strong chemical odor" about it, and the filters appeared to have been used to manufacture methamphetamine. SCP at 27. One of them contained several methamphetamine crystals. When asked about the items, Perez appeared very nervous and said that he had just borrowed the car, and asked why the deputies were searching it. The car was indeed registered to someone else.
After completing the search incident to arrest, the deputies opened the trunk of the vehicle and discovered a gallon can of toluene, a hose with a pressure gauge attached, a black metal cooking device, and a cardboard box containing several plastic two-liter bottles with different liquids inside, one containing a clear liquid with white crystals in the top half. In the deputies' experience, the items in the trunk constituted an active methamphetamine lab. They impounded the vehicle, closing the trunk until they could secure a search warrant.
Based upon these facts, a district court judge issued a search warrant, finding probable cause to believe that the crimes of possession with intent to manufacture, possession of drug paraphernalia, and possession of methamphetamine had been committed. The warrant authorized a search of the vehicle and containers within for "[c]ontraband, the fruits of the crime, or things otherwise criminally possessed." SCP at 25. During the search, the deputies seized the items they had originally discovered in the trunk. The State charged Perez with manufacture of methamphetamine and use of drug paraphernalia in violation of RCW 69.50.401(1) and RCW 69.50.412(1).
Perez moved to suppress the evidence obtained from the trunk. The parties agreed that the deputies' initial search of Perez's trunk was "without legal basis" but disagreed about whether, after the illegally obtained information was excised from the warrant affidavit, the remaining information was sufficient to establish probable cause for the trunk search. SCP at 31.
The trial court noted that "[t]he affidavit in support of this search warrant could have and should have been more complete." SCP at 38. Nevertheless, the court denied the suppression motion, concluding that the affidavit established probable cause to believe there was a controlled substance in the vehicle's trunk.
After a bench trial based solely on the warrant affidavit, the trial court convicted Perez of methamphetamine manufacture and acquitted him of use of drug paraphernalia. Perez raises two issues on appeal: (1) whether the search warrant affidavit, after excising the improper material, established probable cause to search the trunk for evidence of possessing methamphetamine or manufacturing methamphetamine, and (2) whether the court erred by finding probable cause to search the trunk without also finding that the officers would have sought a warrant even if they had not first looked in the trunk.
ANALYSIS
The parties agree that the deputies' initial search of the trunk was unlawful. The evidence challenged here, however, was seized not during the illegal search, but during a subsequent search conducted pursuant to a warrant. If the warrant was based on information obtained independently from the unlawful search and sufficient to establish probable cause, the evidence is admissible under the independent source rule. State v. Gaines, 154 Wn.2d 711, 718, 116 P.3d 993 (2005).
I. Foundation for Independent Source Rule
Perez argues that the State failed to prove that the deputies would have obtained the warrant even absent their unlawful search of the trunk, as required by Murray v. United States, 487 U.S. 533, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988) (cited in Gaines, 154 Wn.2d at 721). The State does not address the issue.
Murray held that a warrant search cannot be genuinely independent from a previously illegal search if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry. Murray, 487 U.S. at 542. The Court remanded to the trial court to determine whether the agents would have sought a warrant independently of the illegally obtained facts. Murray, 487 U.S. at 543-44. Murray thus requires trial courts to do a separate factual inquiry into the effect of illegally obtained information upon the officer's decision to seek the warrant. State v. Spring, 128 Wn. App. 398, 403, 115 P.3d 1052 (2005), review denied, 156 Wn.2d 1032 (2006).
In Gaines, the defendant, like Perez, argued that the State must prove that the police would have sought the warrant for his trunk absent the information obtained from a previous "improper glance" inside the trunk. Gaines, 154 Wn.2d at 721. Our Supreme Court affirmed because the trial court had found that "the police would have obtained the items in the trunk `through the course of predictable police procedures.'" Gaines, 154 Wn.2d at 721 (citations omitted). The court held that this finding supported the conclusion that the police would have sought a search warrant for the defendant's trunk even without the "improper glance." Gaines, 154 Wn.2d at 721.
Here, the trial court made no findings as to whether the deputies would have sought a warrant for the trunk if they had not illegally seen the trunk's contents. Accordingly we remand for the trial court to resolve this factual issue. If the trial court finds that they would have, the next issue will be whether an issuing magistrate could find probable cause to issue a warrant for the trunk based on the officer's affidavit with the improper parts excised.
II. Probable Cause
Perez argues that the facts in the warrant affidavit, after excising the illegally obtained information regarding the contents of the trunk, did not give rise to probable cause; therefore, the warrant violated article I, section 7 of the Washington Constitution and was invalid. Specifically, he argues that Deputy McCarty's warrant affidavit did not establish (1) that the items in the passenger compartment related to manufacture, (2) even if they did, that any evidence would be found in the trunk, and (3) that manufacturing components would fit inside the locked trunk of a car. Without these pieces of information in the affidavit, Perez reasons, "[t]here was no basis to authorize a search of the trunk under Article I, Section 7." Br. of Appellant at 10. He appears to also argue that the absence of these specific facts forced the judge to rely on "blanket inferences" as prohibited by State v. Thein, 138 Wn.2d 133, 147, 977 P.2d 582 (1999). Br. of Appellant at 12.
An affidavit establishes probable cause if it sets forth sufficient facts to lead a reasonable person to conclude there is a probability that criminal activity has taken place and that evidence of the criminal activity can be found at the place to be searched. State v. Maddox, 152 Wn.2d 499, 509, 98 P.3d 1199 (2004). Accordingly, probable cause requires a nexus between criminal activity and the item to be seized, and also a nexus between the item to be seized and the place to be searched. Thein, 138 Wn.2d at 140 (quoting State v. Goble, 88 Wn. App. 503, 509, 945 P.2d 263 (1997)). Determining probable cause is a practical, commonsense decision, taking into account all the circumstances set forth in the affidavit and drawing commonsense inferences. Maddox, 152 Wn.2d at 509. Probable cause requires only a probability of criminal activity, not a prima facie showing. Maddox, 152 Wn.2d at 510.
In reviewing whether probable cause supports a warrant, we consider only those facts brought to the attention of the issuing judge when the warrant was requested: here, the facts in the warrant affidavit. State v. Murray, 110 Wn.2d 706, 709-10, 757 P.2d 487 (1988).
We agree with the trial court that the affidavit did not connect the plastic hose and the unused coffee filters to methamphetamine manufacturing. But the warrant also authorized the officers to search for evidence of methamphetamine possession. The evidence supporting this part of the warrant consisted of the methamphetamine found on the defendant and a baggie in the glove compartment containing several used hypodermic needles and used coffee filters, one containing methamphetamine crystals, which appeared to the officer to have been used to manufacture methamphetamine.
As a preliminary matter, Perez challenges the trial court's ruling because it relied on cases decided under the Fourth Amendment rather than under the Washington Constitution. He argues that Thein is controlling and held that warrants must be supported by specific facts linking the criminal activity to the place searched; "broad generalizations" are not enough. Thein, 138 Wn.2d at 148-49. But the Supreme Court did not decide Thein under the Washington Constitution as Perez contends. See generally Thein, 138 Wn.2d at 145-46 (reviewing conflicting conclusions in other federal and state jurisdictions). Thus, Thein did not set the higher state standard that Perez argues for.
In Thein, the court held that an affidavit fails to establish probable cause to search a known criminal's residence if it lacks a sufficient factual basis to conclude that evidence of illegal activity will likely be found at that residence. Thein, 138 Wn.2d at 147. The affidavit in that case contained evidence sufficient to permit an inference that the defendant was involved in drug dealing, but asserted that on those facts alone there was probable cause to search his residence because "it is generally a common practice for drug traffickers to store at least a portion of their drug inventory and drug related paraphernalia in their common residences." Thein, 138 Wn.2d at 138-39 (citations omitted). The court held that an officer's "general conclusions" are not enough to establish the required nexus. Thein, 138 Wn.2d at 145. Perez argues that the trial court, in finding probable cause for a trunk search whenever drugs are present in the passenger compartment, made an implicit assumption about the behavior of "criminals with contraband in the passenger compartments of their cars" that is analogous to the generalization in Thein. Br. of Appellant at 11.
Perez's analogy rests on an assumption that the trunk and passenger compartment of a vehicle are separate "places" for which the police must independently establish probable cause. Yet the United States Supreme Court, under somewhat different facts, has held that a vehicle is one premises, reasoning that "[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." United States v. Ross, 456 U.S. 798, 825, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). The Court elaborated:
In that case, the Court was considering the proper scope of a warrantless search under the automobile exception established in Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925), but held explicitly that "the scope of the warrantless search authorized by that exception is no broader and no narrower than a magistrate could legitimately authorize by warrant." Ross, 456 U.S. at 825.
A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. . . . A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search. When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions . . . between glove compartments, upholstered seats, trunks, and wrapped packages . . . must give way to the interest in the prompt and efficient completion of the task at hand.
Ross, 456 U.S. at 820-22.
Ross can be factually distinguished because there the probable cause, based on an informant's tip, was specifically for the trunk, and the dispute related to a container inside the trunk. Ross, 456 U.S. at 800-01. Although the Court did not explicitly hold that the presence of drugs in the passenger compartment establishes probable cause to search for more in the trunk, its reasoning supports the State's position here. Specifically, the Court treated a vehicle as one "premises" and rejected any "nice distinctions" between "glove compartments, upholstered seats, trunks, and wrapped packages." Ross, 456 U.S. at 820-21. We hold that an issuing magistrate could reasonably infer that the contraband found on the defendant and in the passenger compartment established probable cause to believe the officers would find more in the trunk.
We remand for the trial court to find, after further hearing if necessary, whether the officers would have sought a search warrant for the car's trunk even if they had not known of the truck's contents. The trial court shall file its findings on this issue with the Court of Appeals, and we will then enter a final decision.
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.
HOUGHTON, C.J., concur.
Probable cause for a search warrant involves an issue of law that we review de novo. In re Det. of Petersen, 145 Wn.2d 789, 799-800, 42 P.3d 952 (2002); State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). See also State v. Nusbaum, 126 Wn. App. 160, 166-67, 107 P.3d 768 (2005). We perform this de novo review in the light of common sense and resolve all doubts in favor of the warrant. State v. Young, 123 Wn.2d 173, 195, 867 P.2d 593 (1994). When, as here, the affidavit contains material improperly considered by the issuing magistrate, the appropriate remedy is to excise the material and determine whether there remains sufficient content in the warrant affidavit to support a finding of probable cause. See State v. Sweet, 23 Wn. App. 97, 101, 596 P.2d 1080 (adopting Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978)), review denied, 92 Wn.2d 1026 (1979). An affidavit establishes probable cause if it sets forth sufficient facts to lead a reasonable person to conclude there is a probability that criminal activity has taken place and that evidence of the criminal activity can be found at the place to be searched. State v. Maddox, 152 Wn.2d 499, 509, 98 P.3d 1199 (2004).
Applying these principles to the affidavit at issue here, sufficient probable cause exists to support the warrant. The affidavit sets forth sufficient facts to lead a reasonable person to conclude that criminal activity has taken place and that evidence of the criminal activity will be found in the automobile to be searched.
On 5-30-06 at about 2000 hours, Deputy Pernsteiner was patrolling the Irondale area when he observed a red Chevy Cavalier in front of him with registration tabs showing 3/04. There was a temporary permit in the back window of the car that appeared to have expired on 5-09-06. As he got behind the car it immediately turned into the driveway of 201 East Moore Street. He conducted a traffic stop on the car and advised the driver why he stopped him. The driver said that he was just borrowing the car and was unable to produce any information. The driver appeared very nervous, he was sweating and displayed furtive movements inside the car. The driver told [Deputy] Pernsteiner that his name was Adrian Perez 3-25-66 and thought his license was suspended. Dispatch advised that Perez had a felony and misdemeanor warrant and was [driving with license suspended/revoked]. Perez was removed from the car and placed under arrest. Deputy Pernsteiner searched Perez in front of his patrol car and located a small baggie of white powder in his front right watch pocket of his trousers. He immediately advised Perez of his [ Miranda ] warnings and he stated that he understood his rights and would speak with him. Deputy Pernsteiner asked Perez what the white powder was and he confirmed that it was methamphetamine. He also located a small baggie containing 2 small white pills in the same pocket. Perez told him that the pills are Oxycontin and that he suffers from back pain and has a prescription for the pills.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
I assisted Deputy Pernsteiner in searching the car incident to arrest, I located a small digital scale on the passenger side floor and a baggie containing several used hypodermic needles was found in the glove compartment of the vehicle. The baggie was later opened and it contained several coffee filters which appeared to have been used to manufacture methamphetamine. There was a strong chemical odor about the bag. One of the filters contained several white crystals that [field] tested positive for methamphetamines. A quantity of coffee filters and a new unused coiled length of plastic hose were found in the back seat. Deputy Pernsteiner asked Perez about the items in the car and he said that the stuff in his pocket was his, but he just borrowed the car. When I started to search the car, Perez turned towards me and asked why we were searching the car and seemed very nervous during the entire contact.
Clerk's Papers at 27.
I respectfully disagree that the proper remedy is a remand to determine the subjective intention of the law enforcement officers involved in the search. In my view, whether probable cause to issue a warrant exists independent of the search of the vehicle's trunk is a question of law to be determined objectively and independent of the subjective belief or intention of the investigating officers. See State v. Potter, 156 Wn.2d 835, 842, 132 P.3d 1089 (2006); State v. White, 97 Wn.2d 92, 102-04, 640 P.2d 1061 (1982) (ruling that an arrest is not invalid for lack of legal authority or probable cause simply because the criminal statute a defendant is arrested under is later found to be unconstitutional); State v. Moore, 54 Wn. App. 211, 214-15, 773 P.2d 96, review denied, 113 Wn.2d 1027 (1989) (discussing "four corners" rule, which prohibits challenges to a facially valid warrant affidavit that, objectively read on the document's face, establishes probable cause). Reading the redacted warrant affidavit in this case in context and in a common sense manner, I would hold that the affidavit establishes probable cause to believe that evidence of the crime of manufacturing methamphetamine will be found in the vehicle the officers sought to search.
Perez had only a small amount of methamphetamine on his person but he was driving a car with a scale and coffee filters that appeared to have been used to manufacture methamphetamine and had white crystals that tested positive for methamphetamine. These items suggest manufacture and delivery, not mere possession, of methamphetamine. When combined with the strong chemical odor from the used coffee filters, and the presence of the unused coffee filters in the same package as plastic tubing gives rise to a reasonable probability that criminal activity has taken place in and around the vehicle (possession and distribution of methamphetamine) and that evidence of the criminal activity will likely be found in the vehicle.
Presence of coffee filters and evidence defendant was acting in concert with another person to acquire more than the legal quantity of ephedrine is sufficient to establish corpus delecti for methamphetamine manufacturing. State v. Brockob, 159 Wn.2d 311, 333, 150 P.3d 59 (2006).
Accordingly, I respectfully dissent. I would hold that the determination of probable cause is objective; independent of the subjective beliefs or intentions of investigating officers. Murray v. United States, 487 U.S. 533, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988), relied on by the majority, is factually distinguishable from this case. The agents in Murray did not disclose to the magistrate that they made a prior warrantless entry of the warehouse at issue, nor did they include any observations made during that entry in their application for a warrant. See State v. Gaines, 154 Wn.2d 711, 721, 116 P.3d 993 (2005). In addition, it is not clear whether the information in the Murray warrant application was obtained before or after the unlawful entry of the warehouse. In other words, it is not clear whether the agents in Murray obtained additional information as a result of the unlawful warehouse entry that they would not have otherwise sought. If the agents in Murray obtained the information in the warrant application after entering the warehouse, a finding that the evidence on which the warrant was requested was genuinely independent of the illegal search would be constitutionally required. But if, as here, the evidence on which the warrant issued was obtained before and, therefore, necessarily independent of the later unlawful search of the defendant's trunk, such a finding is unnecessary.
Likewise, Gaines is not on all fours with the instant case. In Gaines, the trial court that heard the suppression hearing found that the police would have obtained the items in the trunk "through the course of predictable police procedures." Gaines, 154 Wn.2d at 721. In my opinion, those "predictable police procedures" were an impound and inventory search. In any event, the Gaines court held that this finding supported the conclusion that the police would have sought a search warrant for Gaines's trunk based on facts gathered independently (and before) the improper glance inside the trunk. The court also noted that the vehicle played a central role in the reported crimes.
Here, when the improper material (which police obtained after the information properly obtained during the lawful traffic stop) is excised from the search warrant application, the necessarily independent and untainted portions of the search warrant affidavit support a finding of probable cause without reference to the unlawful search of the trunk. These facts established that probable cause existed to issue a warrant to search a vehicle that had a strong chemical odor and was known to contain coffee filters used to manufacture methamphetamine, scales probably used to weigh methamphetamine for distribution, and crystal residue that tested positive for methamphetamine. Accordingly, I would affirm.