Opinion
No. 24054-1-III.
May 25, 2006.
Appeal from a judgment of the Superior Court for Grant County, No. 03-1-00781-4, Evan E. Sperline, J., entered March 22, 2005.
Counsel for Appellant(s), Douglas Dwight Phelps, Phelps Associates, 2903 N Stout Rd, Spokane, WA 99206-4373.
Counsel for Respondent(s), Teresa Jeanne Chen, Grant County Prosecutors Office, PO Box 37, Ephrata, WA 98823-0037.
John Dietrich III Knodell, Attorney at Law, Pros Atty Grant Co Crthse, PO Box 37, Ephrata, WA 98823-0037
Affirmed by unpublished opinion per Brown, J., concurred in by Schultheis, A.C.J., and Kato, J.
Gary Weisell appeals his stipulated bench trial conviction for manufacturing methamphetamine. Mr. Weisell contends the court erred in failing to suppress search warrant evidence because the supporting affidavit included improper facts collected from a pretext stop and a confidential informant (CI). We decide the CI met the necessary reliability and knowledge standards, but the pretext facts were improperly collected. Because the CI's facts, considered apart from the pretext facts supported probable cause for the search, we affirm.
FACTS
On August 18, 2003, a Moses Lake Food Pavillion employee reported two men had entered the store, purchased Red Devil lye and dry ice, two items used in methamphetamine manufacture, and left in a particularly licensed white Ford truck. Deputy Nick Dirks and Deputy Ray Lopez responded, locating the truck in a Wal-Mart parking lot before following it north out of the parking lot.
Eventually, Deputy Dirks stopped the vehicle for improper lane travel. When Deputy Dirks approached the truck, he found Gary Weisell was driving. Deputy Dirks saw a cooler and a bag of rock salt in the back of the truck. Deputy Dirks and Detective Brian Jones of the Interagency Narcotics Enforcement Team (INET) questioned Mr. Weisell and the passengers, James Nazworthy and Larry Caldwell, about their purchases. Mr. Caldwell was arrested after admitting the purchased items were for manufacturing methamphetamine and claiming manufacturing items found in a backpack. Mr. Weisell and Mr. Nazworthy were released after the stop.
On September 2, 2003, Detective Jones obtained a search warrant for Mr. Weisell's home. The supporting affidavit included facts from the August 18 traffic stop and information collected some days later from a CI. The affiant averred the CI met `reliable per law enforcement standards . . . [and had] particular knowledge into the manufacture of mhamphetamine using the NAZI (alkali metal anhydrous ammonia method).' Clerk's Papers (CP) at 48. Further, the CI had `provided information on numerous cases to INET and has at least four search warrants credited to them. During the execution of these search warrants the targeted substances were found, and arrests were made.' CP at 50. The CI had personally observed Mr. Weisell manufacturing methamphetamine and liquid anhydrous ammonia (NH3), a methamphetamine precursor, in his garage a few days prior. The CI described seeing numerous methamphetamine manufacture items: a can of Toluene, muriatic acid, pseudophedrine tablets, tubing, solutions, and an oxygen tank, in Mr. Weisell's garage. When officers executed the search warrant, they found ample evidence of methamphetamine manufacture.
Mr. Weisell was charged partly with manufacturing methamphetamine. Other charges were later dismissed when he agreed to a stipulated facts bench trial. Prior to the trial, Mr. Weisell unsuccessfully argued for suppression of all evidence based upon his theory that the warrant affidavit was tainted due to facts collected at a pretext stop. The trial court found the stop was justified by the facts and `consistent with all constitutional requirements.' CP at 84. The court reasoned the CI information, without consideration of the alleged pretext information was sufficient to support the warrant.
Mr. Weisell appeals.
ANALYSIS
The issue is whether, considering the CI portion of the supporting affidavit apart from the facts derived from the pretext stop, the court erred in denying Mr. Weisell's motion to suppress items found pursuant to the search warrant for Mr. Weisell's home.
We review a trial court's findings of fact on a motion to suppress for substantial evidence. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the court's findings. Id. at 644. Conclusions of law are reviewed de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996).
Mr. Weisell argues the truck stop was pretextual, because Deputy Dirks' subjective intent was to investigate possible criminal activity. The State half-heartedly agrees, but argues this stop was, nevertheless, legal. `[P]retextual traffic stops violate article I, section 7, because they are seizures absent the `authority of law' which a warrant would bring.' State v. Ladson, 138 Wn.2d 343, 358, 979 P.2d 833 (1999) (quoting Const. art. I, sec. 7). `Pretext is, by definition, a false reason designed to disguise a real motive.' Id. at 359 n. 11. In determining whether a `stop is prextual, the court should consider the totality of the circumstances, including both the subjective intent of the officer as well as the objective reasonableness of the officer's behavior.' Id. at 358-59.
`An officer may briefly detain occupants of a vehicle for investigation if the circumstances satisfy the Terry stop reasonable suspicion standard.' State v. Carlson, 130 Wn. App. 589, 593, 123 P.3d 891 (2005) (citing State v. Mendez, 137 Wn.2d 208, 220, 970 P.2d 722 (1999)). This requires `specific and articulable facts that, taken together with rational inferences from those facts, reasonably warrant the intrusion.' Terry, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Articulable suspicion is `a substantial possibility that criminal conduct has occurred or is about to occur.' State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986). Intrusion reasonableness is determined from the totality of the circumstances known by the officer at the inception of the stop. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Deputy Dirk learned the truck's occupants had purchased Red Devil lye and dry ice, items often associated with methamphetamine manufacture. But, this information is less than that found to be insufficient in Carlson, where the majority found the purchases were merely `legitimate and innocuous,' considering no pseudophedrine was involved. Carlson, 130 Wn. App. at 593. Under the facts, the investigatory stop did not meet the Terry reasonable suspicion standard, and the facts described after the stop were tainted. The initial report and observations prior to the stop could be included in the affidavit, but were alone insufficient to support probable cause for issuing the search warrant.
However, if an affidavit in support of a search warrant contains illegally obtained information, the search warrant may still be upheld if the remaining information is sufficient to independently establish probable cause. State v. Coates, 107 Wn.2d 882, 888, 735 P.2d 64 (1987). That is the case here, when considering the CI's input.
The warrant clause of the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington Constitution require that a search warrant be issued upon a determination of probable cause based upon `facts and circumstances sufficient to establish a reasonable inference' that criminal activity is occurring or that contraband exists at a certain location. State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999) (citing State v. Smith, 93 Wn.2d 329, 352, 610 P.2d 869 (1980)). Probable cause is established when an affidavit supporting a search warrant provides sufficient facts for a reasonable person to conclude there is a probability the defendant is involved in the criminal activity. State v. Young, 123 Wn.2d 173, 195, 867 P.2d 593 (1994).
Under the Aguilar-Spinelli test, to establish probable cause for issuance of a search warrant based upon an informant's tip detailed in an affidavit, the affidavit must demonstrate the informant's veracity and basis of knowledge. State v. Jackson, 102 Wn.2d 432, 435, 688 P.2d 136 (1984). The veracity prong requires the magistrate to determine if the informant has truthfully related the facts. Id. at 437. The recitation of an informant's previous record may be sufficient to establish veracity. See State v. Mejia, 111 Wn.2d 892, 895-97, 766 P.2d 454 (1989).
Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).
Here the affidavit sufficiently related the CI's reliability and basis of knowledge. The CI had given prior information leading to arrests and conviction. The CI's basis of knowledge is provided by his personal presence at the scene and his detailed knowledge of facts suggesting criminal evidence at that location. State v. Wolken, 103 Wn.2d 823, 827, 700 P.2d 319 (1985). The affidavit stated the CI personally observed Mr. Weisell manufacturing methamphetamine and liquid anhydrous ammonia (NH3) in his garage and described seeing numerous items associated with methamphetamine manufacture. The trial court correctly reasoned, `[I]t seems to me the search warrant was primarily issued on the basis of the CI's information and its more than enough.' Report of Proceedings at 25. In sum, the trial court did not err in its reasoning. The references to the pretext-facts stop were fleeting and insignificant to the probable cause determination. Even excluding all information about the pretext stop, ample facts supplied by the CI supported search warrant issuance.
Affirmed.
A majority of the panel has determined 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, A.C.J. and KATO, J., concur.