Opinion
No. 27326-1-III.
October 15, 2009.
Appeal from the Superior Court, Douglas County, No. 08-1-00069-2, John Hotchkiss, J., entered July 14, 2008.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Schultheis, C.J., and Korsmo, J.
The defendant here challenges the sufficiency of an affidavit to support a search warrant, and the sufficiency of the search warrant to authorize a search of his person and his home. We conclude that the affidavit supports the warrant and the warrant properly authorized the search of this defendant and his home. We therefore affirm the conviction for possession of a controlled substance.
FACTS
The superior court issued a warrant to search the home, vehicles, and person of a man named Herculano Hernandez for an unlawfully possessed firearm, contraband, or things otherwise criminally possessed. This warrant was based on an affidavit alleging that Herculano Hernandez (a/k/a "Tamales," "Tomallero," Herculano Jimenez, and Herculano Samaniego) was an illegal alien in possession of a black 9 mm pistol.
Detective Keith Kellogg executed the warrant. He contacted a man and a woman at the home. The man said he was Herculano Hernandez. Mr. Hernandez's pesticide license and pay stubs, however, identified him as Herculano Jimenez. And his Washington state identification card identified him as Luis Samaniego.
Detective Kellogg read Miranda warnings to Mr. Samaniego and explained that he had a warrant to search for a pistol. Mr. Samaniego denied having a pistol. The detective searched Mr. Samaniego and discovered two baggies of cocaine and one empty baggie containing cocaine residue in his pants pocket. Mr. Samaniego told the detective that the cocaine was for his personal use. Police searched Mr. Samaniego's house and found four digital scales, hundreds of plastic baggies with the corners cut out of them, and inositol, an agent used to cut cocaine.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
They arrested Mr. Samaniego. And the State charged him with unlawful possession of a controlled substance with intent to deliver. Mr. Samaniego moved to suppress the drug evidence on the ground that the search was based on a warrant that was not sufficiently particular because "it did not contain an accurate name or description of the person to be searched." Clerk's Papers (CP) at 7. The trial court concluded that the warrant was sufficiently particular even though it identified Mr. Samaniego as Herculano Hernandez. And the court found that the warrant correctly stated that Mr. Samaniego lived at the home identified in the warrant with his wife and two children. It also found that Mr. Samaniego matched the warrant's description of Mr. Hernandez: a short, light-skinned, Hispanic male. The trial court denied Mr. Samaniego's motion. And a jury found Mr. Samaniego guilty of possession of a controlled substance.
DISCUSSION
Mr. Samaniego contends that the affidavit in support of the search warrant was inadequate. He argues that it did not show that Mr. Samaniego was involved in criminal activity simply by possessing a pistol. The affidavit did not say the firearm had been stolen or that "Tamales" or "Tomallero" could not legally possess a firearm. Mr. Samaniego concedes that the affidavit showed a man named Herculano Hernandez was an illegal alien and, therefore, could not legally possess weapons. But he maintains that the affidavit does not show that he is Herculano Hernandez.
We review the court's decision to issue a search warrant for abuse of discretion. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008). Our review is "limited to the four corners of the affidavit supporting probable cause." Id. And we defer to the judge's determination of probable cause and resolve all doubts in favor of the validity of the warrant. State v. Chenoweth, 160 Wn.2d 454, 477, 158 P.3d 595 (2007).
Mr. Samaniego raises this issue for the first time on appeal. And we generally will not review an issue raised for the first time on appeal unless it is a "manifest error affecting a constitutional right." RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995). Mr. Samaniego does not claim or show that the error alleged here is a manifest constitutional error because he does not show that the outcome of his trial would have been different but for the error. See State v. Warren, 134 Wn. App. 44, 57, 138 P.3d 1081 (2006), aff'd, 165 Wn.2d 17, 195 P.3d 940 (2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2007, 173 L. Ed. 2d 1102 (2009).
Nonetheless, a warrant that lacks probable cause is unconstitutional. State v. Nusbaum, 126 Wn. App. 160, 166, 107 P.3d 768 (2005). And evidence obtained by means of an unlawful search and seizure is inadmissible. Mapp v. Ohio, 367 U.S. 643, 648, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). The drugs seized under the warrant here would, then, have been inadmissible if the warrant was not based on probable cause. And, without that drug evidence, we will assume the State would have lacked sufficient evidence to prove that Mr. Samaniego possessed a controlled substance. See RCW 69.50.4013(1).
A judge properly issues a search warrant only upon a determination of probable cause. State v. Jackson, 150 Wn.2d 251, 264, 76 P.3d 217 (2003). Probable cause requires "facts and circumstances sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity." Id.
Detective Kellogg's affidavit stated that an informant had seen a man who resided at 4210 10th Street SE in East Wenatchee carry a black 9 mm pistol on the small of his back. Detective Kellogg's investigation suggested the man's name was Herculano Hernandez. And Immigration and Customs Enforcement informed Detective Kellogg that Herculano Hernandez was an illegal alien. Herculano Hernandez would then have unlawfully possessed a firearm. See State v. Maddox, 152 Wn.2d 499, 505, 98 P.3d 1199 (2004) (issuing judge is entitled to draw reasonable inferences from affidavit's facts). The judge, then, had probable cause to issue the warrant that authorized a search for evidence of unlawful possession of a firearm. Jackson, 150 Wn.2d at 264.
"It is a class C felony for any person who is not a citizen of the United States to carry or possess any firearm, without first having obtained an alien firearm license from the director of licensing. In order to be eligible for a license, an alien must provide proof that he or she is lawfully present in the United States." RCW 9.41.170(1).
Mr. Samaniego next notes that the warrant must be sufficiently definite for an officer to identify with reasonable certainty the person or things to be seized and contends that this one is not. He argues that the warrant here was based on an affidavit that did not show that Herculano Hernandez was the same person as Mr. Samaniego or any of the other aliases.
Mr. Samaniego also contends that the trial court's conclusion that the warrant here was valid is based in part on an erroneous finding that he fits the warrant's description of the person to be searched. He claims the finding was improperly based on the trial court's observation; an observation, he argues, that was not available to the judge who authorized the search. And, for that reason, he challenges the court's finding that the issuing judge had all the information stated in the findings when he issued the warrant. Finally, Mr. Samaniego challenges the finding that he owned any of the vehicles listed in the warrant; he argues that the affidavit never said he owned or drove any of the vehicles. Mr. Samaniego also contends that the warrant here did not name or describe him with sufficient particularity.
Again, we review de novo the question of whether a search warrant meets the Fourth Amendment's particularity requirement. State v. Garcia, 140 Wn. App. 609, 622-24, 166 P.3d 848 (2007). The Fourth Amendment and Washington's criminal rules require that a search warrant describe with particularity the person to be searched. U.S. Const. amend. IV; CrR 2.3(c); State v. Rollie M., 41 Wn. App. 55, 58, 701 P.2d 1123 (1985).
"The validity of a warrant authorizing the search of a person depends essentially upon whether it describes that person with such particularity as to be identified with reasonable certainty." State v. Martinez, 51 Wn. App. 397, 399, 753 P.2d 1011 (1988). A warrant is sufficiently particular, for example, if it identifies the person to be searched by name, occupation, physical description, peculiarities, and/or place of residence. Rollie M., 41 Wn. App. at 59.
The warrant here identified the person to be searched by name, personal appearance, and place of residence:
Herculano * Hernandez (11-07-1976) is Hispanic male, approximately 5'-01" in height and approximately 150 pounds in weight. Hernandez is described as being a very light skinned Hispanic. Hernandez is known to live at 4210 10th St. SE in East Wenatchee, WA.
CP at 15. Mr. Samaniego argues that this description of the person to be searched was not sufficiently particular to authorize a search of his person because his name is not Herculano Hernandez and he is not 5'1" and 150 pounds. Mr. Samaniego is 5'4" and 170 pounds. The State concedes that Mr. Samaniego's name is not Herculano Hernandez. Resp't's Br. at 15.
A search warrant is, however, valid if it contains sufficient facts to establish probable cause independent of the challenged information. State v. Coates, 107 Wn.2d 882, 888, 735 P.2d 64 (1987). And, even omitting the name, height, and weight identifiers, the warrant here adequately described Mr. Samaniego as the person to be searched. It identified the person to be searched as "a very light skinned Hispanic" who "is known to live at 4210 10th St. SE in East Wenatchee, WA." CP at 15. Mr. Samaniego fits this description and he concedes as much. Appellant's Br. at 12. This warrant, then, properly limited the authorized search to a described person living at a particular address. The warrant was valid. And the trial court did not err by denying Mr. Samaniego's suppression motion.
Finally, Mr. Samaniego argues that Detective Kellogg exceeded the scope of a warrantless frisk for weapons when he searched the small watch pocket of Mr. Samaniego's pants for weapons and discovered one gram of cocaine. We generally review de novo the reasonableness of a search. State v. Hoffman, 116 Wn.2d 51, 97-98, 804 P.2d 577 (1991).
Mr. Samaniego's challenge, however, assumes that the search warrant authorizing the search of his person was invalid. It was not and it authorized Detective Kellogg to search Mr. Samaniego for and seize any contraband or other things criminally possessed, as permitted by CrR 2.3(b). CP at 15. And that is what Detective Kellogg did. The search and seizure here was, therefore, permissible and reasonable.
We affirm.
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.
SCHULTHEIS, C.J. and KORSMO, J., concur.