Opinion
No. 35083-1-II.
October 31, 2007.
Appeal from a judgment of the Superior Court for Kitsap County, No. 04-1-00822-9, Theodore F. Spearman, J., entered July 7, 2006.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Houghton, C.J., and Bridgewater, J.
The State charged David Brown with four counts of unlawful possession of a firearm, in violation of RCW 9.41.040(1)(a). The court convicted Brown on all counts. Brown now appeals the trial court's refusal to suppress the firearms evidence arguing that because the police informant was unreliable, the search warrant was invalid. We affirm.
FACTS
I. Informant's Arrest
On May 14, 2004, the Kitsap County Sheriff's Department responded to a report of a suspicious vehicle driving around new homes under construction. It was after 11:00 p.m. when the police deputies arrived and observed an adult male fleeing from the back deck of one of the new homes. The deputies soon located Paul Bickle in the adjacent wooded area with the aid of the K-9 unit. Bickle was attempting to remove an exterior window to the home when he saw police and fled. At the time of the incident, there had been numerous similar crimes committed in the area.
After the police arrested and searched Bickle, they uncovered a business card from a storage facility. The back of the card contained a unit number and a gate code. The police applied for and received a search warrant for the storage unit. After executing the warrant, they discovered evidence relating to the recent burglaries and tool sets and equipment associated with an automotive shop.
Shortly after his arrest, Bickle requested to speak with the sheriff's department regarding the burglaries. Bickle asked whether he could receive leniency if he provided helpful information to the police. The detectives assigned to the case informed Bickle that any leniency would depend on the amount of information he provided as well as the State's discretion in filing specific charges.
After voluntarily waiving his Miranda rights, Bickle told the detectives that the tools were Brown's. According to Bickle, Brown stole the items from an automotive shop in Kent. In exchange for storing the tools, Brown promised Bickle that he would supply him with methamphetamine. Bickle indicated that Brown had been his methamphetamine supplier for some time. Bickle also informed the detectives that he had been to Brown's residence in Fircrest several times in the past several months and that he had seen firearms, including AK-47s and semiautomatic handguns on site. Bickle also claimed that Brown rented two storage units in Port Orchard and that he had seen Brown's firearms in those units as well. Finally, Bickle stated that he and Brown coordinated the burglaries at the construction sites.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
II. Search Warrant
Based on Bickle's interview, Detective Ronald Trogdon applied for a search warrant for Brown's residence. In supplemental testimony supporting the application, Detective Trogdon informed the court that Bickle waived his Miranda rights and that he supplied the detectives with information concerning Brown's possession of firearms, which was unlawful given Brown's status as a convicted felon.
Detective Trogdon also informed the court that he investigated the origin of the automotive tools the detectives recovered from the storage unit and that he later learned an auto repair shop in Kent had reported these items stolen. Additionally, detectives confirmed Bickle's statement that Brown rented two storage units in Port Orchard.
The court then asked Detective Trogdon if he had promised Bickle anything in return for this information. Detective Trogdon testified that he told Bickle, "it depended upon the scope of the information that he gave and what the prosecutor felt about that." CP at 84. Detective Trogdon informed the court that the State was currently charging Bickle with second degree burglary. Detective Trogdon was familiar with Bickle from a previous case "involving numerous thefts, burglaries and car prowls several years ago for which Paul Bickle was arrested and sent to prison." CP at 64. Neither Detective Trogdon nor the prosecutor disclosed the fact that Bickle had nine previous convictions for crimes of dishonesty.
The court issued the search warrant for firearms at Brown's residence and at the storage facility. When the detectives executed the search warrant at Brown's home, they discovered three shotguns and a rifle in the bedroom closet. The State then charged Brown with four counts of first degree unlawful possession of a firearm, violations of RCW 9.41.040(1)(a).
III. Motion to Suppress
Before trial, Brown moved to suppress the firearms the police seized using the search warrant. Brown argued to the trial court, as he does here, that Bickle did not meet the veracity prong of the Aguilar-Spinelli test. Additionally, Brown argued that the trial court should suppress the warrant under Franks v. Delaware, 438 U.S. 154, 156-57, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), because the police either recklessly or intentionally omitted evidence of Bickle's criminal history when seeking the warrant. Finally, Brown argued that the warrant was stale because Bickle told Detective Trogdon he had seen the firearms two months earlier. For the purposes of the hearing, the State conceded that Detective Trogdon either intentionally or recklessly omitted Bickle's full criminal history, but the State argued that the evidence was not material. The State reasoned that the issuing court was aware of Bickle's present criminal charges as well as previous arrests and jail sentences and, thus, had sufficient knowledge of Bickle's previous crimes of dishonesty.
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).
The trial court denied Brown's motion to suppress. It reasoned that Bickle satisfied the veracity prong because he was a named informant and his statements were against his penal interests. As to the prior convictions, the trial court agreed with the State that the omissions were not material because the issuing court need only be aware of the nature of the past crimes rather than the date and cause number of the convictions.
The trial court then held a bench trial on stipulated facts and found Brown guilty on all four counts of unlawful possession of a firearm. Brown appeals.
ANALYSIS
Brown argues that the trial court erred in finding that Bickle's information satisfied the veracity prong of the Aguilar-Spinelli test.
I. Standard of Review
We review a court's determination of probable cause for a search warrant under an abuse of discretion standard. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). We grant great deference to the issuing court and resolve doubts of probable cause in favor of the warrant. Cole, 128 Wn.2d at 286.
II. Validity of the Search Warrant
To determine a search warrant's validity, Washington courts follow the two-prong test derived from Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). State v. Fisher, 96 Wn.2d 962, 965, 639 P.2d 743 (1982). In order for a police officer to secure a search warrant based on an informant's tip, the officer must demonstrate the informant's (1) veracity and (2) basis of knowledge. State v. Jackson, 102 Wn.2d 432, 443, 688 P.2d 136 (1984). Brown does not contest Bickle's basis of knowledge, and thus we need only address the veracity prong of the Aguilar-Spinelli test.
The State may demonstrate the veracity of its informant by showing either (1) a proven track record of accurate information or (2), even if nothing is known about the informant, that the facts and circumstances give rise to an inference of reliability. State v. Lair, 95 Wn.2d 706, 710, 630 P.2d 427 (1981). Washington courts have granted substantial weight to informants who police designate by name in their search warrant applications. State v. O'Connor, 39 Wn. App. 113, 121, 692 P.2d 208 (1984). Even the fact that the police suspect a named informant of criminal wrongdoing does not "vitiate the inference of reliability." State v. Northness, 20 Wn. App. 551, 558, 582 P.2d 546 (1978).
If the informant is under suspicion for criminal activity, courts can look to other indicators of reliability. State v. Rodriguez, 53 Wn. App. 571, 576, 769 P.2d 309 (1989). In addition to the informant's identity, they will often to look at whether the informant provides detailed information or makes statements against his penal interests. See e.g., Lair, 95 Wn.2d at 710-11; State v. Chenoweth, 127 Wn. App. 444, 455, 111 P.3d 1217 (2005); O'Connor, 39 Wn. App. at 122-23.
In O'Connor, the police executed a controlled buy and arrest for a stolen car stereo. O'Connor, 39 Wn. App. at 115. Following the arrest, the suspect offered to serve as a police informant against the defendant, who had provided the suspect with the stolen property. The informant admitted to having sold stolen property for the defendant for over a year, and he provided the defendant's name and address. Additionally, the police investigated the car stereo and learned that it matched a description of an item lost during a burglary. O'Connor, 39 Wn. App. at 115. Based on this information, the police obtained a search warrant for the defendant's property.
In upholding the propriety of the search warrant, Division one of our court held that the informant demonstrated veracity because (1) the search warrant identified the informant by name; (2) the informant made a statement against penal interests; and (3) the informant was able to provide detailed information regarding the defendant as well as the stolen property. O'Connor, 39 Wn. App. at 121-23. Specifically, the O'Connor court noted:
In summary, we have a detailed statement against penal interest by a named informant. Significantly, this statement was given following Miranda . . . warnings, thus establishing the arrestee/informant's awareness that his statements could be used against him in a criminal prosecution.
39 Wn. App. at 123 (citation omitted).
This case is not unlike O'Connor. Here, as in O'Connor, the informant did not possess a track record of accurate information, but there were sufficient indicia of reliability to trust his veracity. O'Connor, 39 Wn. App. at 121. The search warrant named the informant in both cases, which O'Connor indicates is relevant to a finding of veracity. Both informants were being held as a suspect for crimes, yet courts have found that this fact alone does not vitiate the inherent trustworthiness in statements from a named informant. See O'Connor, 39 Wn. App. at 120 (noting that the Aguilar-Spinelli construct is aimed primarily at unnamed informants). Importantly, both Bickle and the informant in O'Connor made statements against penal interests by implicating themselves in crimes during the course of their interviews, and did so while in custody. Further, both provided information with sufficient detail to further buttress their reliability.
Brown primarily attempts to challenge the trial court's ruling by arguing (1) Bickle's status as a suspect renders him unreliable; (2) Bickle's statements about Brown's firearms were not against penal interest; and (3) the issuing court's ignorance as to Bickle's extensive criminal history weighs against a finding of credibility. These arguments fail.
First, as stated above, Bickle's status as a suspect did not render him unreliable. Northness, 20 Wn. App. at 558. Second, while Brown is correct that Bickle's statement concerning Brown's firearms was not against Bickle's penal interest, we evaluate Bickle's statement in its entirety.
The evidence at the CrR 3.6 hearing demonstrated that Bickle gave Detective Trogdon a detailed description of his criminal activity as it related to Brown and that Bickle implicated himself in numerous crimes outside of the firearm statement. Bickle had no way of knowing that the detectives would only pursue an investigation related to the firearms as opposed to the burglaries, possession of stolen property, or the methamphetamine distribution. Had the police chosen to pursue these issues, Bickle could have very well found himself facing additional criminal charges. Bickle received Miranda warnings, but nonetheless gave a statement that subjected him to criminal liability. This is sufficient support for the trial court's finding that the statement was against penal interest. While Brown would like us to isolate Bickle's remarks concerning firearms from the rest of his statement, he provides no authority as to why we should construe Bickle's information in such a narrow fashion.
Lastly, the record does not suggest that the court would have declined to issue a search warrant had it been aware of every one of Bickle's felony convictions for crimes of dishonesty. The record demonstrates that the court knew that the police apprehended Bickle during an attempted burglary, that Bickle admitted a number of other current crimes, and that Bickle had numerous arrests and convictions in the past in connection to crimes of dishonesty. Brown does not explain how a list of specific convictions would have rendered Bickle unreliable when the court was well aware of his extensive pattern of crimes of dishonesty.
Since Brown failed to demonstrate that issuing the search warrant demonstrated an abuse of discretion, we affirm the trial court's ruling and Brown's convictions.
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., and Bridgewater, J., concur.