Opinion
No. 36373-9-II.
August 26, 2008.
Appeal from a judgment of the Superior Court for Mason County, No. 06-1-00410-8, James B. Sawyer II, J., entered May 21, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, C.J., and Quinn-Brintnall, J.
Michael E. Manning appeals his conviction for possession of a controlled substance with intent to deliver — methamphetamine. He contends that the trial court erred in denying his motion to suppress evidence because the affidavit supporting the search warrant was defective. We affirm.
FACTS
Michael Manning was arrested on October 4, 2006, when a search warrant was executed at his residence in Belfair, Washington. The warrant was based on information from a confidential informant, later disclosed as Neil Devitt, indicating methamphetamine was being used and distributed at Manning's residence. During the search of Manning's single-wide mobile home, police found several small bags and containers of a white crystalline powder that was later determined to contain methamphetamine, along with a container holding more than 8 grams of a cutting agent commonly used with methamphetamine, two smoking pipes with drug residue in the bowls, a triple-beam scale, a powder scale, and other paraphernalia associated with drug use and distribution, and several firearms. The State ultimately charged Manning with one count of possession with intent to deliver methamphetamine and four counts of second degree unlawful possession of a firearm.
Before trial, Manning moved for disclosure of the confidential informant's identity, which the court granted. Manning also moved to suppress evidence obtained in the search, arguing that the underlying affidavit did not establish probable cause supporting the warrant's issuance. The court denied the motion.
During trial, Manning renewed his suppression motion arguing that the underlying affidavit was deficient because, during the telephone affidavit seeking the warrant, the affiant, Detective Chad Birkenfeld, made a material omission to the issuing judge reflecting on the informant's credibility. The court ruled that there had been no material omission and denied the renewed suppression motion.
Following presentation of evidence at trial, the jury found Manning guilty of count I but was deadlocked on the other four counts — the firearm charges. The trial court declared a "hung jury and a mistrial" as to counts two through five. 3 RP at 428. The court subsequently sentenced Manning to a standard range sentence of 16 months on his conviction for count I. Manning timely appealed.
DISCUSSION
Manning contends that the trial court erred in denying his motion to suppress evidence. This is so, he argues, because the affidavit upon which the search warrant was issued was deficient. Specifically, he contends that Detective Birkenfeld made a material omission about the informant during the telephonic application for a search warrant, thereby rendering the affidavit deficient, the search warrant invalid, and suppression of the evidence obtained in the resulting search proper. We disagree.
Detective Birkenfeld stated to the issuing judge that the informant "is out of custody" when, in fact, the informant was subject to electronic home monitoring. CP at 78.
Our Supreme Court recently addressed a similar challenge to a search warrant affidavit that also relied on information from an informant. The court opined, "[s]crutinizing a warrant affidavit for evidence of negligent omissions or misstatements is . . . inconsistent with our State's established jurisprudence governing search warrant challenges." State v. Chenoweth, 160 Wn.2d 454, 477, 158 P.3d 595 (2007). Chenoweth reiterated that a search warrant is "entitled to a presumption of validity." Chenoweth, 160 Wn.2d at 477 (citation omitted). The decision to issue a search warrant is highly discretionary. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). A reviewing court generally gives great deference to the magistrate's determination of probable cause and "view[s] the supporting affidavit for a search warrant in a commonsensical manner rather than hypertechnically." Chenoweth, 160 Wn.2d at 477. Accordingly, appellate courts will generally resolve doubts concerning the existence of probable cause in favor of the Page 4 validity of the search warrant. Chenoweth, 160 Wn.2d at 477. Notably, material misstatements or omissions will invalidate a search warrant only when made recklessly or intentionally. Chenoweth, 160 Wn.2d at 484. Moreover, a trial court's conclusion that the affiant did not recklessly omit material facts in obtaining a search warrant will be upheld where such determination is not clearly erroneous. Chenoweth, 160 Wn.2d at 484. As discussed below, Manning fails to overcome the presumption that the search warrant was properly issued and valid.
Manning argues that Detective Birkenfeld's omission in the warrant affidavit — that Devitt was under electronic home monitoring — negated the basis for the informant's credibility, thereby eviscerating probable cause for issuing the warrant. We disagree.
A search warrant may issue only upon a determination of probable cause. State v. Atchley, 142 Wn. App. 147, 161, 173 P.3d 323 (2007) (citing Cole, 128 Wn.2d at 286). Probable cause exists where there are facts and circumstances sufficient to establish a reasonable inference that the defendant is involved in criminal activity and that evidence of the criminal activity can be found at the place to be searched. Atchley, 142 Wn. App. at 161 (citing State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999)). "To establish probable cause, the affidavit for a search warrant `must set forth sufficient facts to lead a reasonable person to conclude there is a probability that the defendant is involved in criminal activity.'" Atchley, 142 Wn. App. at 161 (quoting State v. Cord, 103 Wn.2d 361, 365-66, 693 P.2d 81 (1985)). Probable cause requires only a probability of criminal activity, not a prima facie showing. State v. Maddox, 152 Wn.2d 499, 505, 98 P.3d 1199 (2004). In determining probable cause, the magistrate makes a practical, commonsense decision, and is entitled to draw reasonable inferences from all the facts and circumstances set forth in the affidavit. Maddox, 152 Wn.2d at 505. As noted, a magistrate's determination of probable cause is reviewed for abuse of discretion, the determination is accorded great deference by the reviewing court, and doubts are to be resolved in favor of the warrant's validity. Atchley, 142 Wn. App. at 161; Chenoweth, 160 Wn.2d at 477.
When evaluating the existence of probable cause where, as here, information was provided by an informant, Washington applies the Aguilar-Spinelli two-pronged test addressing the informant's "veracity" and "basis of knowledge." Atchley, 142 Wn. App. at 161 (citation and internal quotation omitted). See also State v. Jackson, 102 Wn.2d 432, 443, 688 P.2d 136 (1984). The prongs are independent and both must be established in the affidavit. Jackson, 102 Wn.2d at 437. As the Jackson court explained, for an informant's tip (as detailed in an affidavit) to create probable cause for a search warrant to issue: (1) the officer's affidavit "must set forth some of the underlying circumstances from which the informant drew his conclusion" so that a magistrate can independently evaluate the reliability of the manner in which the informant acquired his information; and (2) the affidavit "must set forth some of the underlying circumstances from which the officer concluded that the informant was credible or his information reliable." Jackson, 102 Wn.2d at 435 (citations omitted).
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), abrogated by Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), but adhered to by State v. Jackson, 102 Wn.2d 432, 688 P.2d 136 (1984).
Further, the credibility of a confidential informant depends on whether the informant is a private citizen or a professional informant, and, if a citizen informant, whether his or her identity is known to the police. See Atchley, 142 Wn. App. at 162; State v. Ibarra, 61 Wn. App. 695, 699, 812 P.2d 114 (1991). When the identity of an informant is known, the necessary showing of reliability is relaxed, as the information is less likely to be given in self-interest. Atchley, 142 Wn. App. at 162; State v. Gaddy, 152 Wn.2d 64, 72-73, 93 P.3d 872 (2004). However, Washington requires a heightened showing of credibility for citizen informants whose identity is known to police but not disclosed to the magistrate. Ibarra, 61 Wn. App. at 700. Thus, to address concerns that the confidential citizen informant is not merely an anonymous troublemaker, the affidavit "must contain background facts to support a reasonable inference that the information is credible and without motive to falsify." Atchley, 142 Wn. App. at 162 (internal quotations and citations omitted). As noted in Jackson, the most common way to satisfy the "veracity" prong of the Aguilar-Spinelli test is to evaluate the informant's "track record" regarding whether he has provided accurate information to police on past occasions. Jackson, 102 Wn.2d at 437 (internal quotations and citations omitted). And to satisfy the "basis of knowledge" prong, the affiant "must explain how the informant claims to have come by the information" and "the informant must declare that he personally has seen the facts asserted and is passing on first-hand information." Jackson, 102 Wn.2d at 437.
These requirements are met by Detective Birkenfeld's telephonic affidavit. The affiant's statement of probable cause is based on information from an informant. According to the affidavit, the informant is known to the affiant, desires not to be identified for fear of reprisals, and has an established record of providing useful information to the affiant. The affiant specifically noted that the informant has assisted in "past . . . criminal investigations and most recently during a burglary investigation" leading to multiple arrests and the location of stolen property. CP at 78. The affiant stated that the informant had contacted him and "wishe[d] to provide information" in order to "remove sellers from [the informant's] community and family members." CP at 78. The affiant stated that the informant "does have a criminal history," noting convictions for malicious mischief, firearm offenses, VUCSA, and DWLS. CP at 78. Additionally, the affiant stated that the informant "is out of custody and has no charges pending." CP at 78.
As regards the informant's basis of knowledge, the affiant described three telephone calls from the informant in September and October of 2006, in which the informant described his just-completed visits to Manning's home. During each visit the informant observed two small scales suitable for weighing drugs, a large "bong" with methamphetamine residue in it, and small baggies containing methamphetamine residue scattered around the living area. Manning also monitored the driveway to his home with a surveillance camera system, and "kept a [police] scanner going." CP at 79. The informant additionally reported that during two of his visits many visitors were coming and going from Manning's residence.
The informant recognized the methamphetamine from his own past experience of monthly purchases of that drug from Manning over the past 10 years.
Based on the above information submitted in the telephonic affidavit, the judge ruled there was probable cause to believe that methamphetamine was being used and distributed at Manning's residence and approved a search warrant as requested. That determination was proper because the affidavit contained sufficient indicia of both the informant's veracity and his personal knowledge of the described events. Accordingly, the judge's probable cause determination is sustainable, and the ensuing search warrant is valid. See Chenoweth, 160 Wn.2d at 477; Jackson, 102 Wn.2d at 437.
Nevertheless, Manning contends that suppression of the evidence obtained in the search is required under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). This is so, he contends, because Detective Birkenfeld's statement in the affidavit that the informant was not in custody, was a material omission reflecting upon the informant's credibility and was made intentionally or with reckless disregard for the truth. Again, we disagree.
In Franks, the Supreme Court addressed at length the issue of whether a false statement by a government affiant made in the affidavit invalidates a search warrant. Franks, 438 U.S. at 167-72. As in the above analysis, Franks acknowledged the presumption that the affidavit supporting a search warrant is valid, see Franks, 438 U.S. at 171, but announced a limited rule that addressed alleged government misconduct and determined when a hearing on allegations of misstatements must be afforded and when the exclusion of seized evidence is mandated. Franks, 438 U.S. at 167-68. Relevant here, Franks provided that substantial procedural hurdles be met before fruits of a search must be excluded. The Court held
where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.
Franks, 438 U.S. at 155-56. As can be seen, to exclude evidence under Franks, Manning must first make a substantial preliminary showing of misconduct in order to get a hearing. He must then prevail at the hearing. Then, with the offending language corrected, the affidavit must fail to establish probable cause. Only if all of these hurdles are successfully negotiated will exclusion of evidence be warranted.
But Manning does not meet his burden of making a substantial preliminary showing that Detective Birkenfeld's statement — that the informant was not in custody — was a knowingly and intentionally false statement or that it was made with reckless disregard as to its truth. Though the Fourth Amendment demands a "truthful" factual showing sufficient to comprise probable cause, this does not mean that every fact recited in the affidavit is necessarily correct. All that is required is that "the information put forth is believed or appropriately accepted by the affiant as true." Franks, 438 U.S. at 165.
Here, when Manning renewed his motion to suppress during trial, the trial court took testimony on the matter out of the jury's presence. In response to repeated questioning from defense counsel, Detective Birkenfeld consistently testified that he did not believe that Devitt had any criminal cases pending during the time he was providing information to the detective about Manning. Nor did the detective know that Devitt was on electronic home monitoring. The trial court opined that while defense counsel had demonstrated that the informant was indeed on home monitoring at the relevant time, he had not established that the affiant had any knowledge to that effect or had made any material misrepresentations to the issuing judge, thus the court was not inclined to alter its prior ruling denying suppression. Devitt was then made available to testify and under questioning from defense counsel stated that he had received pre-approval from his "probation officer" regarding his activities for Detective Birkenfeld. 3 RP at 261. Devitt also testified that he "believe[d]" he had discussed his home monitoring with Detective Birkenfeld and that the detective knew about the home monitoring. 3 RP at 262.
The record indicates that during the relevant time period Devitt and Detective Birkenfeld communicated primarily by telephone, Devitt's monitoring anklet was concealed under his pants, and that Devitt spent considerable time away from home each day traveling for his job despite the home monitoring.
The court denied the renewed motion to suppress, ruling that there was no material omission, and the facts submitted to the issuing judge were sufficient to support the warrant. In so ruling, the court explained that it was making a "credibility call" between the disparate testimony of Devitt and Detective Birkenfeld as to whether the detective knew about Devitt's home monitoring. 3 RP at 274. That determination is supported by the record and is sustainable.
Moreover, as to Manning's reliance upon Franks, he simply fails to make a preliminary showing of misconduct as required by Franks. While factual inaccuracies or omissions in a warrant affidavit may invalidate the warrant under the Fourth Amendment if the defendant establishes that they are both material and made in reckless disregard for the truth, a "showing of mere negligence or inadvertence is insufficient." Chenoweth, 160 Wn.2d at 462 (citing Franks, 438 U.S. at 171). See also State v. Garrison, 118 Wn.2d 870, 875, 827 P.2d 1388 (1992) ("`[o]mitted information that is potentially relevant but not dispositive is not enough to warrant a Franks hearing'") (quoting United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990)). See also Garrison, 118 Wn.2d at 873 ("Defendant failed to prove anything about reckless disregard for the truth by the omission, except the content of the omission. That is insufficient [under Franks]."). In sum, we hold that the trial judge did not err in denying Manning's motion to suppress. Accordingly, we affirm.
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.
Quinn-Brintnall, J., Van Deren, C.J., concur.