Opinion
No. 61339-1-I.
March 9, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-1-05905-7, Cheryl B. Carey, J., entered January 23, 2008.
Affirmed by unpublished per curiam opinion.
Time Meippen appeals his convictions for assault in the first degree, robbery in the first degree, and unlawful possession of a firearm. The convictions stem from an incident in which Meippen entered a tobacco shop, shot the shop's clerk in the head with a handgun, and took cash from the shop's register. Meippen contends that the trial court erred by refusing to suppress physical evidence found in his primary vehicle — a spent shell casing and live ammunition that matched a spent shell casing found at the scene of the crime — because there were insufficient facts stated in the investigating police detective's search warrant affidavit to justify the issuance of the warrant authorizing the search of the car. Concluding that the warrant was properly issued and that the motion was, accordingly, properly denied, we affirm.
Daniel Hong was working at his job as a clerk at the Cigarland tobacco shop in the Northgate neighborhood of Seattle when a young man walked into the store. Hong recognized him; the young man had previously been into the store approximately 15 times attempting to purchase cigarettes while Hong was working. Hong had always refused to sell cigarettes to the young man because he was not old enough to buy them. On the day in question, the young man was wearing a gray hooded sweatshirt and dark pants.
As usual, the young man asked Hong if he would sell him cigarettes. As usual, Hong responded that he would not. The young man then picked up a package of candy and set it on the counter. Hong proceeded to ring up the purchase as the young man put money on the counter. Looking downward, Hong then opened up the cash register drawer to make change. At this point, Hong felt something slam into his head. He fell to the floor.
As Hong lay dazed on the floor, he heard rustling above him. He then heard the sound of someone running across the store and out the door.
Before the young man had entered the store, Samantha Sterkel had been sitting outside the next-door Subway sandwich shop in which she worked, smoking a cigarette while on a break. She witnessed a young man wearing a sweatshirt with the hood up, dark pants, and red gloves walk into Cigarland; it was not busy at the time, and he was the only customer. Soon, she heard what she described as a "couple of pops," and saw the young man run out of Cigarland with "money and items flying everywhere" from the pockets of his sweatshirt.
Sterkel then went into Cigarland. At first, she could not see anyone. However, as she approached the counter, she saw Hong lying on the floor in what she described as a "fetal position." His hands were covering his face. There was blood smeared across the floor and on his face underneath his hands. Sterkel asked him if he was "okay" and where his telephone was. He did not respond. Sterkel then hurried out of Cigarland and called 911 from the Subway shop.
Seattle Police officers arrived at Cigarland minutes after receiving the call. Other emergency responders directed the officers to a spent shell casing lying on the ground behind the counter, about three feet from where Hong was lying.
The police then spoke with Hong, who was still alive and conscious. Hong neither realized that he had been shot in the head nor understood why he was bleeding so badly; he seemed to think that he had been hit with something. Notwithstanding this, Hong was able to identify his assailant as a regular customer and accurately describe what the young man had been wearing. Hong was eventually transported to the hospital and treated for a single gunshot wound.
Seattle Police Detective Thomas Conrad was the primary detective assigned to the Cigarland robbery. After reviewing footage from the four security cameras inside Cigarland, each of which had captured the incident from a different angle, Conrad went to the hospital to speak with Hong.
During their discussion, Hong told Conrad what he could remember about the robbery, including that his assailant was a regular customer and what the assailant had been wearing. Hong also remembered that his assailant had previously been in Cigarland with someone he had described as his "cousin"; while they were there, the assailant's purported cousin had used a Micronesian passport as identification to buy tobacco. Hong recalled that while they had been in the store, the two had spoken together in a language other than English, which Hong presumed to be Micronesian based on the passport that he had seen. Hong also remembered that his assailant had once mentioned that he attended Nathan Hale High School.
Two days after the shooting, Conrad telephoned Seattle Police Officer Wendy Boyd, who was assigned to Nathan Hale. Conrad described what had happened at Cigarland and what he had learned from Hong. Boyd immediately told Conrad that Meippen fit Hong's description of the suspect, that he was actually a student at Summit K-12 (an alternative school across the street from Nathan Hale), and that he drove a purple Cadillac. Boyd then referred Conrad to David Raybern, the security guard assigned to Summit.
Like Boyd, Raybern immediately identified Meippen as matching Hong's description. Raybern also stated that Meippen's primary vehicle was a purple Cadillac.
Conrad then obtained a photograph of Meippen and created a photomontage containing it, along with photographs of five similar-looking men. Conrad showed the montage to Hong, as well as to Hannah Yang, one of Hong's coworkers who had also interacted numerous times at Cigarland with the person who had attacked Hong. Hong immediately identified the photograph of Meippen as showing the person who had shot him. Likewise, Yang separately identified the picture of Meippen as the individual who regularly came into Cigarland and attempted to buy tobacco without identification.
Based on this information, Conrad sought a warrant to search Meippen's apartment, the purple Cadillac, and Meippen's person. The affidavit submitted in support of a finding of probable cause to search recounted the details of the robbery, everything that Conrad had learned since, and stated that Meippen's "primary vehicle is the above purple Cadillac," identifying the car driven by Meippen by its Washington license number. The warrant application also stated that Meippen's residence was an apartment that he shared with his mother. Based on Conrad's affidavit, the warrant was issued by a King County Superior Court judge.
The warrant was served shortly thereafter. In Meippen's bedroom, police officers discovered a sweatshirt, t-shirt, pants, and shoes that matched those worn by Hong's assailant in the security camera footage, as well as Hong's and Sterkel's descriptions. In the purple Cadillac, they found an expended shell casing and two undischarged ammunition cartridges that exactly matched the expended shell casing found on the ground next to Hong's head in the Cigarland store. They also found a red glove in Meippen's pants pocket and $140 in cash on his person.
Meippen was arrested and ultimately charged with assault in the first degree, robbery in the first degree, and unlawful possession of a firearm based on the allegation that he possessed the pistol used in the assault while still a minor. Prior to trial, Meippen moved to suppress the evidence obtained in the search of the car, contending that Conrad's affidavit failed to state facts sufficient to support a determination of probable cause to believe that evidence of the Cigarland robbery would be found therein. The trial court denied Meippen's motion, and allowed the State to present at trial evidence of the items found in the car.
A jury found Meippen guilty of both the assault and robbery charges. In a severed proceeding, the trial court found Meippen guilty of the unlawful firearm possession charge.
II
Meippen's primary contention is that the search warrant obtained by Conrad was issued without establishing probable cause to search the Cadillac in which the spent shell casing and ammunition cartridges were found. According to Meippen, the physical evidence of the shell casings and cartridges should have been suppressed, and its erroneous admission requires reversal of his convictions. We disagree. Conrad's affidavit provided sufficient information linking the Cadillac to the crime to support a finding of probable cause.
A search warrant may be issued only upon a determination of probable cause. State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). "Probable cause exists if the affidavit in support of the warrant sets forth facts and circumstances sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime can be found at the place to be searched." Thein, 138 Wn.2d at 140. A magistrate's determination that the facts stated in a warrant application establish probable cause and thus justify the issuance of a warrant is reviewed for abuse of discretion. State v. Smith, 93 Wn.2d 329, 352, 610 P.2d 869 (1980); State v. Dalton, 73 Wn. App. 132, 136, 868 P.2d 873 (1994). That is, where an investigating officer properly seeks a search warrant and a judge issues the warrant after determining that the application establishes probable cause to search, any "[d]oubts should be resolved in favor of the validity of the warrant" on appeal. State v. Garcia, 63 Wn. App. 868, 871, 824 P.2d 1220 (1992) (citing State v. Fisher, 96 Wn.2d 962, 964, 639 P.2d 743 (1982); State v. Partin, 88 Wn.2d 899, 904, 567 P.2d 1136 (1977)). However, unlike the actual determination of probable cause by the issuing magistrate, the trial court's assessment of the magistrate's probable cause ruling in deciding a suppression motion is reviewed de novo on appeal. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008).
Meippen bases his contention that Conrad's affidavit was insufficient to justify a probable cause determination on two cases: Thein and Dalton. In Dalton, we reversed the defendant's conviction for manufacturing marijuana, concluding that the application for a warrant to search the defendant's home had stated no facts that tied the home to illegal conduct. Dalton, 73 Wn. App. at 140. Specifically, we stated that tips by anonymous informants that the defendant later planned to sell marijuana in Alaska could not reasonably support the inference that the defendant had marijuana at his home in Washington. We adopted the reasoning that "`[p]robable cause to believe that a man has committed a crime on the street does not necessarily give rise to probable cause to search his home.'" Dalton, 73 Wn. App at 140 (quoting Commonwealth v. Kline, 234 Pa. Super. 12, 17, 33 A.2d 361 (1975)).
In Thein, our Supreme Court ruled similarly, holding that mere conclusory assertions in a warrant application about the common habits of drug dealers were not enough, by themselves, to support the issuance of a warrant to search a suspected drug dealer's home for contraband. Thein, 138 Wn.2d at 150-51. Specifically, the court held that the conclusory assertion in a police officer's affidavit that "it is generally a common practice for drug traffickers to store at least a portion of their drug inventory and drug related paraphernalia in their common residences," in the absence of any statements actually tying the defendant's home to suspected criminal activity, was insufficient to "establish a nexus between evidence of illegal drug activity" and the place to be searched. Thein, 138 Wn.2d at 138-39, 151.
Both of those cases differ from this case. Unlike the affidavit at issue in Dalton, Conrad's affidavit was not based on an anonymous tip of dubious reliability that Meippen might engage in criminal activity at some later date and in some other state. To the contrary, there were significant facts — for example, positive identification by the victim of Meippen as the Cigarland assailant — stated in Conrad's warrant application to support the inference that Meippen had already committed a crime and that evidence of that crime might either be found in his apartment, where he could be expected to dispose of his clothing, or in the purple Cadillac, his "primary vehicle."
Unlike the warrant application in Thein, the facts stated in Conrad's warrant application had nothing to do with generalized assumptions about the behavior of a certain class of criminals, such as drug dealers. Instead, Conrad's affidavit set forth specific and explicit facts supporting the conclusion that Meippen had been the person who came into the Cigarland store, shot Hong in the head, and ran out of the store with the contents of the cash register.
To be entirely clear: the magistrate who issued the warrant for the search of the Cadillac could reasonably infer from the facts stated in the affidavit that (1) Meippen had committed the crimes of robbery and assault in the Cigarland store, (2) the Cigarland store was sufficiently far from Meippen's home that Meippen may have driven to and from the scene of the crime, (3) the purple Cadillac was Meippen's primary vehicle, (4) if Meippen drove away from the scene of the shooting, he likely used his primary vehicle to do so, (5) because Meippen lived in an apartment with his mother, he was unlikely to keep a contraband weapon therein, and (6) because of these facts, evidence related to the crime might be located within the Cadillac.
Contrary to Meippen's implication, Conrad's affidavit was not required to spell out this chain of reasoning explicitly in order for the judge to have acted within the scope of her discretion by issuing the warrant to search the Cadillac. On the contrary, it is well established that magistrates reviewing warrant applications are entitled to rely upon their own "common sense and experience" to determine what inferences may "reasonably to be drawn from the facts" stated in the applications for purposes of making probable cause determinations. Thein, 138 Wn.2d at 148-49. This being the case, it is unsurprising that numerous appellate opinions have upheld the issuance of search warrants for vehicles on similar (or less) evidence than was presented to the issuing judge herein. See, e.g., State v. Clark, 143 Wn.2d 731, 749-50, 24 P.3d 1006 (2001) (combination of prior criminal history and inadmissible polygraph evidence sufficient for probable cause to search vehicle).
There were sufficient concrete facts articulated in Conrad's warrant application to establish the required nexus between the Cadillac and the Cigarland robbery such that the judge did not abuse her discretion by issuing the warrant to search the Cadillac. Because of this, the trial court did not err by refusing to suppress the evidence obtained as a result of the search. There was no error.
III
In a pro se pleading, Meippen also asserts several additional grounds for reversal of his conviction. None has merit.
First, Meippen contends that the composition of the jury was unconstitutional because it excluded lower-income jurors and jurors from lower-income neighborhoods. There is no evidence whatsoever that this is true.
Second, Meippen contends that his attorney was so incompetent that his representation violated Meippen's constitutional right to effective assistance of counsel. According to Meippen, this is so because the attorney failed "to call witnesses from the crime-lab, to testify on behalf of their `reports'" regarding the security camera footage, and because he failed "to question a very critical part" of the State's case. But Meippen does not articulate why examination of the crime-lab employees would have aided his case, what particular part of the State's case his counsel failed to challenge, or how doing so would have altered the outcome of the trial. This being the case, we can discern nothing in Meippen's argument that would justify the conclusion that his attorney was anything but competent.
Third, Meippen contends that someone (he never says who) tampered with the evidence against him. Again, there is no evidence whatsoever that supports this assertion.
Fourth, Meippen contends that his robbery and assault convictions were for the "same offense" and thus, presumably, violate the Double Jeopardy Clauses of the state and federal constitutions. Meippen's contention is based on his misconception that a single course of criminal conduct cannot result in multiple convictions and multiple punishments, even where the legislature intends for that to be the case. He is wrong. See, e.g., State v. Freeman, 153 Wn.2d 765, 776, 108 P.3d 753 (2005) ("the legislature did intend to punish first degree assault and robbery separately") (emphasis added).
Finally, Meippen appears to contend that his separate convictions for assault and robbery should have only combined to raise his offender score by a single point because the sentences imposed for those convictions are to run concurrently. This contention is simply wrong. See RCW9.94A.589(1)(a) ("[W]henever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score."); RCW 9.94A.525(2)(a) ("Class A . . . prior felony convictions shall always be included in the offender score"). There was no error.
Affirmed.