Opinion
No. 38375-6-II.
January 20, 2010.
Appeal from a judgment of the Superior Court for Clallam County, No. 07-1-00587-0, S. Brooke Taylor, J., entered September 5, 2008.
Affirmed by unpublished opinion per Houghton, J., concurred in by Van Deren, C.J.; Quinn-Brintnall, J., concurring separately.
Brad Shirley appeals his conviction for unlawful possession of a controlled substance (methamphetamine), arguing that the trial court erred in denying his CrR 3.6 motion to suppress evidence seized using a search warrant. Pro se, he raises an additional issue relating to the search warrant. We affirm.
FACTS
On December 22, 2007, Clallam County Sheriff's Deputy Karl Koehler stopped a vehicle for a defective headlight. The driver, Joe Smith, and the passenger, David Granson, both had outstanding warrants for their arrest. Koehler searched the vehicle incident to their arrests and found methamphetamine and marijuana. Granson also had an open beer container, in which Koehler found what looked like methamphetamine.
A short time later, Deputy John Keegan interviewed Smith about the incident. During the interview, Smith admitted that he was addicted to methamphetamine and that he had used it earlier in the day. Smith also admitted to collecting money from others in the past in order to buy methamphetamine and deliver it. Smith stated that he had known Granson for about six months and that Granson used illegal drugs.
Before the traffic stop, Smith and Granson were on their way to Shirley's residence to purchase drugs. Smith and Granson had gone to Shirley's residence the night before for the same purpose. According to Smith, Granson had entered Shirley's house without any methamphetamine and emerged with some. Smith spoke of earlier occasions where he purchased drugs from Shirley through Granson. Smith also mentioned that he gave $300 to Granson for rent, but he actually expected Granson to use the money to buy drugs to sell at a profit.
After midnight on December 23, Keegan sought a telephonic search warrant for Shirley's residence. Keegan told the judge that Granson had previous convictions for "violation of uniformed [sic] controlled substance act" and that Shirley had "previous arrests for . . . possession of Methamphetamine and possession with intent." Clerk's Papers (CP) at 65. Keegan also told the judge that other officers had witnessed a lot of vehicle traffic at Granson's house recently, including seeing Shirley's truck. The judge found probable cause and issued the search warrant.
Keegan also sought a search warrant to search Granson's residence.
On December 28, Keegan and other officers executed the search warrant on Shirley's residence. Once inside, Keegan encountered Shirley in the bathroom with the toilet bowl filling with water. Keegan arrested Shirley and read him his Miranda rights. The officers found cash, drug paraphernalia, and "crib notes" in the residence. Report of Proceedings (July 30, 2008) at 80.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Keegan then contacted a different judge by telephone to secure an addendum to the original December 23 search warrant in order to expand its scope to include several vehicles parked at the residence, including Shirley's jeep. The judge allowed the addendum.
Even though the transcript of Keegan's telephonic request for the addendum and the addendum itself is not a part of the record on appeal, Shirley agreed at argument before this court that the trial judge granted the addendum to expand the search warrant's scope.
Keegan and another officer, Deputy Gomez, then searched the jeep and discovered a sizeable sum of currency in the center console and a small canister. Crime laboratory testing on the residual contents of the canister yielded a positive result for methamphetamine.
The State charged Shirley with felony unlawful possession of a controlled substance (methamphetamine) and misdemeanor unlawful possession of 40 grams or less of marijuana. RCW 69.50.4013(1); RCW 69.50.4014. Shirley moved under CrR 3.6 to suppress the evidence seized from his jeep for lack of probable cause to support the warrant.
Without a hearing, the trial court issued a memorandum opinion and denied the motion. Before trial began, the trial court dismissed the marijuana charge for insufficient evidence. A jury found Shirley guilty of the remaining charge and he appeals.
ANALYSIS Search Warrant Affidavit
Shirley first contends that the trial court erred in denying his CrR 3.6 motion to suppress evidence seized under the search warrant. He argues that the warrant's supporting affidavit fails to establish probable cause and that Smith's statements to Keegan do not meet the Aguilar-Spinelli test requirements.
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).
We review the trial court's conclusion that an informant meets the Aguilar-Spinelli test de novo as a matter of law. Petersen v. State, 145 Wn.2d 789, 800, 42 P.3d 952 (2002). We review a factual determination of whether an informant is credible and reliable for abuse of discretion, that is, whether tenable grounds or reasons support the determination. Petersen, 145 Wn.2d at 800; State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (1997).
The State asks us to review for abuse of discretion. We decline to do so as that is not the proper standard of review.
A search warrant affidavit establishes probable cause to support a search where it sets forth facts from which an ordinary, prudent person would conclude that a crime has occurred and that evidence of the crime would be found at the location to be searched. State v. Perez, 92 Wn. App. 1, 4, 963 P.2d 881 (1998). We review the magistrate's decision to issue the warrant for abuse of discretion. State v. Maddox, 152 Wn.2d 499, 509, 98 P.3d 1199 (2004). Our review is limited to the four corners of the affidavit. State v. Murray, 110 Wn.2d 706, 709-10, 757 P.2d 487 (1988). But the trial court's assessment of probable cause is a legal conclusion that we review de novo. State v. Chamberlin, 161 Wn.2d 30, 40-41, 162 P.3d 389 (2007).
We evaluate the search warrant affidavit it in a commonsense, practical manner, rather than hypertechnically. Perez, 92 Wn. App. at 4. And we afford great deference to a magistrate's determination of probable cause. State v. Young, 123 Wn.2d 173, 195, 867 P.2d 593 (1994). But we do not defer to a magistrate's decision if the information on which it is based is insufficient to establish probable cause. Perez, 92 Wn. App. at 4. We resolve any doubts in favor of the validity of the warrant. State v. Garcia, 63 Wn. App. 868, 871, 824 P.2d 1220 (1992).
In Washington, where an informant's tip forms the basis for probable cause, the Aguilar-Spinelli test applies. State v. Jackson, 102 Wn.2d 432, 433, 688 P.2d 136 (1984). Under Aguilar-Spinelli, an affidavit of probable cause to support a search warrant must set forth facts establishing an informant's veracity and basis of knowledge. State v. Mejia, 111 Wn.2d 892, 896-97, 766 P.2d 454 (1989). The knowledge prong requires the issuing judge to determine whether the informant has personal knowledge of those facts; the veracity prong requires the issuing judge to determine whether the informant has truthfully related the facts. Mejia, 111 Wn.2d at 896-97. Aguillar-Spinelli's knowledge prong is satisfied where the informant has personally witnessed the facts asserted and is passing on firsthand information. State v. Duncan, 81 Wn. App. 70, 76, 912 P.2d 1090 (1996). Here, Smith witnessed firsthand the information he passed on to Keegan, including that (1) he was going to go to Shirley's residence with Granson to purchase drugs; (2) Smith takes Granson to Shirley's residence to purchase drugs frequently; and (3) the night before the arrest, he took Granson to Shirley's residence where Granson entered without methamphetamine and returned with it. Thus, the affidavit sufficiently established Smith's basis of knowledge to satisfy the first prong of Aguilar-Spinelli. As for the veracity prong, a number of factors established Smith's credibility. First, he was a named informant. See State v. Estorga, 60 Wn. App. 298, 305, 803 P.2d 813 (1991). Second, he had an incentive to be truthful because he was admitting to unlawful activity, delivering and selling drugs, and risked unfavorable treatment if he lied to the police. See Estorga, 60 Wn. App. at 304-05. Third, he made statements against his penal interest, admitting he was a methamphetamine addict, among other things. See Jackson, 102 Wn.2d at 437. And fourth, sufficient independent corroborating evidence supported his information about Shirley's criminal activity, where Keegan confirmed that Shirley's car had been seen at Granson's own residence for extended periods. See State v. Murray, 110 Wn.2d 706, 712, 757 P.2d 487 (1988). Smith provided sufficient information by which the issuing judge could have found Smith's veracity established for purposes of Aguilar-Spinelli.
Washington courts continue to follow the Aguilar-Spinelli test despite the United States Supreme Court's adoption of a "totality of the circumstances" test in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), finding the Gates test inapplicable to the Washington State Constitution, article I, section 7. See State v. Vickers, 148 Wn.2d 91, 111-12, 59 P.3d 58 (2002); State v. Jackson, 102 Wn.2d 432, 440-43, 688 P.2d 136 (1984).
Shirley also argues that the statements made by Smith to Keegan first came from Granson, which amounts to "double hearsay." Appellant's Br. at 15. Shirley cites State v. Laursen, 14 Wn. App. 692, 695, 544 P.2d 127 (1975), for the proposition that the trial court should have evaluated Smith's and Granson's statements separately under Aguilar-Spinelli. The trial court did not examine Granson's statements. The Laursen court, however, did not establish such a bright line rule and instead simply noted that "when a [judge] receives an affidavit containing such twice-removed statements, he need not summarily reject this double hearsay information, but should evaluate the information in order to determine whether the affiant's immediate informant gathered his information in a reliable way and from a reliable source." 14 Wn. App. at 695.
Smith's statements to Keegan were not statements Smith heard from Granson, as Shirley asserts. Smith instead based his statements on his own observations and inferences drawn from the conduct of others, namely Granson. See Jackson, 102 Wn.2d at 437 (personal observations satisfy the basis of knowledge prong when the informant declares he personally has seen the facts asserted and is passing on firsthand information). Shirley's double hearsay argument fails.
On the ultimate issue of probable cause, the information Smith provided, coupled with the affidavit as a whole, leads to a reasonable, commonsense determination that there was a probability that Shirley was involved in criminal activity and that officers would find evidence of the criminal activity at his residence. The trial court properly denied Shirley's motion to suppress the evidence seized through the search warrant.
Search Warrant Scope
Next, Shirley contends that Keegan's and Gomez's search of Shirley's jeep exceeded the scope of the warrant issued by the first judge. Shirley did not raise this argument below; he asks us to review it for the first time on appeal under RAP 2.5(a). Generally, a defendant waives any issues not raised in the trial court. RAP 2.5; State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005). But a defendant can raise alleged manifest constitutional errors for the first time on appeal. RAP 2.5(a); State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988).
Shirley's claim is problematic because it relies on a misapprehension of the facts. Once at Shirley's residence, Keegan sought an addendum to the original search warrant to add the jeep to the warrant's scope. The second judge approved the addendum. Keegan's and Gomez's search of the jeep was plainly within the expanded warrant's scope.
Alternatively, Shirley argues that his trial counsel provided ineffective assistance for failing to seek suppression for exceeding the warrant's scope. An appellant claiming ineffective assistance of counsel must show deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Presumably, Shirley's trial counsel did not object because he knew of the addendum, which brought the jeep within the search warrant's scope. Thus, counsel did not provide ineffective assistance. Shirley's arguments as to exceeding the search warrant's scope fail.
Statement of Additional Grounds
In his statement of additional grounds, Shirley claims that Keegan's statement to the first judge that Shirley had a prior conviction for unlawful possession with intent to deliver (methamphetamine) was false. Therefore, he argues that it was improper for Keegan to say so in order to obtain a search warrant.
RAP 10.10.
Defendants may challenge an affidavit for false statements. State v. Stephens, 37 Wn. App. 76, 78, 678 P.2d 832 (1984). But they must show that the affidavit contains intentional or deliberate falsehoods; whereas, negligent or innocent mistakes do not suffice. Stephens, 37 Wn. App. at 78.
Keegan's statement in the affidavit differs slightly from Shirley's contention. Keegan in fact stated that Shirley had "previous arrests for . . . possession of Methamphetamine and possession with intent," not convictions. CP at 65 (emphasis added). Because Shirley fails to show that Keegan intentionally or deliberately misstated Shirley's criminal history, his argument fails.
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.
I concur:
Van Deren, C.J.
Only probable cause supports a valid search warrant. State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). A determination of probable cause is a legal conclusion, a question of law, and the appropriate standard of review is always de novo. In re Det. of Petersen, 145 Wn.2d 789, 799, 42 P.3d 952 (2002); State v. Chamberlin, 161 Wn.2d 30, 40-41, 162 P.3d 389 (2007). As the majority recognizes, in Chamberlin, our Supreme Court applied the de novo review standard to the trial court's probable cause assessment. But as a legal conclusion, de novo is the appropriate standard for reviewing the issuing magistrate's probable cause determination as well. See In re Petersen, 145 Wn.2d at 799. Although many cases state that we review the magistrate's decision to issue a warrant for an abuse of discretion, see, e.g., State v. Jackson, 150 Wn.2d 251, 264-65, 76 P.3d 217 (2003); State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002); State v. Nelson, 152 Wn. App. 755, 772, 219 P.3d 100 (2009); State v. Olson, 73 Wn. App. 348, 354, 869 P.2d 110, review denied, 124 Wn.2d 1029 (1994); State v. Condon, 72 Wn. App. 638, 642, 865 P.2d 521 (1993), review denied, 123 Wn.2d 1031 (1994), it is the decision to issue a warrant after a valid determination of probable cause that is subject to the sound exercise of the magistrate's discretion, not the legal conclusion of probable cause. In re Petersen, 145 Wn.2d at 799-800. A court reviewing the legality of a search warrant must determine de novo whether probable cause supports the warrant. In re Petersen, 145 Wn.2d at 799-800. Accordingly, I concur in the result only.