Opinion
No. 56286-0-I.
October 9, 2006.
Appeal from a judgment of the Superior Court for Snohomish County, No. 03-1-01058-1, Stephen J. Dwyer, J., entered May 4, 2005.
Counsel for Appellant(s), Elaine L. Winters, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635.
Calvin Lee White (Appearing Pro Se), 21420 119th St Ne, Granite Falls, WA, 98252.
Counsel for Respondent(s), Lisa Danette Paul, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA, 98201-4060.
Affirmed by unpublished per curiam opinion.
Calvin Lee White ("White") was found guilty in a stipulated trial of possession of methamphetamine under RCW 69.50.401(d). On appeal, White contends the trial court erred in denying his motion to suppress evidence obtained during a search of his residence and in concluding the search warrant was supported by probable cause. White argues the affidavit in support of the search warrant did not establish probable cause because it did not demonstrate the informant's credibility. We affirm the trial court's denial of White's motion to suppress and his conviction for possession of methamphetamine.
FACTS
On April 28, 2003, at around 4:40 p.m., Deputy Scott Wells stopped Sundi R. Anderson ("Anderson") for a defective rear brake light while she was driving on Mountain Loop Highway in Granite Falls. Anderson admitted she did not have a driver's license because her license was suspended. After confirming Anderson's license was suspended, Deputy Wells arrested her.
Deputy Wells informed Anderson of her Miranda rights. Before stopping Anderson, Deputy Wells had observed the car she was driving parked in front of White's residence at 21420 119th St. N.E., in Granite Falls. After she waived her Miranda rights, Deputy Wells asked her whether she had any guns, knives, narcotics, or narcotic paraphernalia in the car. Anderson told him she had methamphetamine in a red backpack in the car. In the backpack, Deputy Wells found a white powdery substance, a small container of unknown pills, and a sandwich bag of green vegetable substance. Using a drug field testing kit, Deputy Wells tested the white powdery substance. The substance tested positive for methamphetamine. Deputy Wells then asked Anderson where she obtained the methamphetamine. Anderson responded, "`you guys know what's going on.'" Deputy Wells asked if Anderson just obtained the methamphetamine and she said she had. Deputy Wells also asked if Anderson obtained the methamphetamine from White and she said yes.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Later, at the police station, Anderson told Deputy Wells that she had been to White's house in the past? about six or seven times in the past few months? and had known him for some years. Anderson admitted to purchasing methamphetamine from White in five of these recent visits, but explained that she had only recently begun purchasing methamphetamine from him. Anderson told Deputy Wells she had gone to White's house around 3:00 or 3:30 that afternoon and purchased the methamphetamine and the marijuana found in her backpack from White. Anderson said she exchanged her Percocet pills for the methamphetamine and White went into his bedroom to get the methamphetamine. Anderson said she spent about 1 1/2 to 2 hours at White's residence and admitted to smoking some of the methamphetamine while there.
Anderson also admitted she was a methamphetamine addict, that she smoked methamphetamine, and was familiar with the appearance and taste of the drug. In addition, Anderson admitted to a criminal history, which includes criminal trespass in the first degree, theft in the third degree, and domestic assault in the fourth degree.
Based on Anderson's information, Deputy Wells applied for and obtained a search warrant that same day. Deputy Wells, in his affidavit in support of the search warrant, identified Anderson and described her criminal and drug history, her interactions with White, and the drug transaction that occurred that afternoon. The search warrant was issued around 9:45 p.m. and executed that evening. During the search of White's residence, the deputies found a white powder substance in a black leather pouch on the headboard above White's bed. The white powder tested positive for methamphetamine. The deputies also found drug paraphernalia and a container of loose white pills in White's bedroom. White admitted the drugs were his and that Anderson had been at his house that day. White was charged with possession of methamphetamine.
The deputies also found baggies containing a green leafy substance in a cupboard above the bed that tested positive for marijuana.
Before trial, White moved to suppress the methamphetamine seized by the deputies. White argued the affidavit in support of the search warrant was not based on probable cause because it did not establish Anderson was credible, the police did not corroborate the information, and Anderson's statements were not against her penal interest. The court denied the motion to suppress. Following a stipulated bench trial, the court found White guilty of possession of methamphetamine and sentenced him to eight months in jail. White appeals.
ANALYSIS Probable Cause for Search Warrant
White contends the affidavit in support of the search warrant was inadequate because it did not establish Anderson's reliability.
The court's decision to issue a search warrant is reviewed for abuse of discretion and is entitled to great deference. See State v. Jackson, 150 Wn.2d 251, 265, 76 P.3d 217 (2003); State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002). But, "[a] trial court's legal conclusion of whether evidence meets the probable cause standard is reviewed de novo." In re Det. of Petersen, 145 Wn.2d 789, 799, 42 P.3d 952 (2002); see also State v. Nusbaum, 126 Wn. App. 160, 166-167, 107 P.3d 768 (2005). Appellate courts review an affidavit supporting a search warrant "in the light of common sense" and with doubts resolved in favor of the warrant. See Vickers, 148 Wn.2d at 108-109.
Under the federal and Washington state constitutions, law enforcement officials may not engage in unreasonable searches. U.S. Const. amend. IV; Wash. Const. art. I, § 7. A search warrant must be supported by probable cause. Vickers, 148 Wn.2d at 108; CrR 2.3(c). "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." State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). The defendant bears the burden of establishing the search was unreasonable. State v. Hopkins, 113 Wn. App. 954, 958, 55 P.3d 691 (2002).
Washington courts follow the two-prong Aguilar-Spinelli test to evaluate whether an informant's information provides probable cause to support the issuance of a search warrant. State v. Jackson, 102 Wn.2d 432, 434, 688 P.2d 136 (1984); Spinelli v. United States, 393 U.S. 410, 415, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 12 L. Ed. 723 (1964). The magistrate must determine that (1) the informant had a "— basis of knowledge'" for the information provided, and that (2) the underlying circumstances establish the informant is credible or the information reliable (" — veracity'" prong). Jackson, 102 Wn.2d at 435. Both prongs must be met, but if one prong is not met, police may corroborate the information provided by the informant through independent investigation. Id. at 438.
White does not challenge the "basis of knowledge" prong. White focuses on the "veracity" prong and contends Anderson's information is not reliable for a number of reasons: (1) Anderson's statements against her penal interest do not establish reliability, (2) the police did not independently investigate the information she provided, (3) Anderson has no history of providing reliable information to the police, (4) Anderson provided vague and conclusory information, (5) Anderson is a drug addict with a criminal history, and (6) the timing of the search warrant does not support reliability.
Washington courts have identified various factors that establish informant reliability: whether the informant is named in the affidavit, whether the informant made statements against penal interest, whether the information was provided post-arrest, whether the informant has a track record of providing reliable information to police, how detailed and what kind of information the informant provided, and whether the information was corroborated. See State v. O'Connor, 39 Wn. App. 113, 119-121, 692 P.2d 208 (1984); see also State v. Lair, 95 Wn.2d 706, 711-712, 630 P.2d 427 (1981). No one factor is dispositive, and corroboration is not required. See O'Connor, 39 Wn. App. at 120.
Below, White argued Anderson's statements were not made against penal interest. For the first time on appeal, White concedes Anderson's statements were made against penal interest, but argues the statements do not establish her credibility because her arrest for possession of controlled substances gave her a motive to lie to "curry favor with the police." Appellate courts generally will not consider issues not raised below. RAP 2.5(a); Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d 351 (1983). Nevertheless, Anderson's statements against penal interest support her reliability. Washington courts have long recognized that "reliability attached to admissions against penal interest may be greater in post-arrest situations because the arrestee admitting the crime risks disfavor with the prosecution if he lies." O'Connor, 39 Wn. App. at 121-122 (holding veracity prong met where informant made post-arrest statements against penal interest, was identified, and provided sufficiently detailed information).
White also argues that because the methamphetamine in Anderson's backpack was later found to be from a different batch than that found in White's home, her reliability was undermined. Because appellate courts reviewing probable cause determinations to support warrants are limited to considering the information that was available to the issuing magistrate, this subsequent discovery is not relevant to this inquiry. See State v. Estorga, 60 Wn. App. 298, 304, 803 P.2d 813 (1991).
White also contends the affidavit was deficient because the police did not independently corroborate Anderson's information, and because Anderson lacked a history of supplying reliable information to the police. But, as this court stated in O'Connor, "although corroboration may be a factor in the veracity determination, Washington courts have never considered it a prerequisite to a reasonable inference of truthfulness." 39 Wn. App. at 120 (finding veracity prong met where, despite lack of independent corroboration of statements made against penal interest, other circumstances demonstrated the informant's reliability). Police are not required to independently investigate an informant's information so long as other circumstances show reliability. In any event, at least some of Anderson's information was corroborated. For instance, Deputy Wells had seen Anderson's car parked in front of White's residence just before he stopped her for a defective rear brake late. Anderson specifically stated she went to White's residence around 3:00 or 3:30 p.m. and stayed for about 1 1/2 to 2 hours. Consistent with Anderson's description, when Deputy Wells stopped her, it was around 4:40 p.m.
Additionally, whether an informant has a history of providing credible information to the police is only one factor to be considered. See Lair, 95 Wn. 2d at 710. In Lair, the veracity prong was met despite the fact the informant had no track record because several other circumstances established the informant's reliability, including statements made against penal interest, corroboration by other co-informants, and naming of the informant in the affidavit. 95 Wn.2d at 710-712. Here, the lack of an independent investigation of Anderson's information and the absence of a history as an informant are not dispositive because other circumstances demonstrated Anderson's veracity.
But relying on O'Connor, White claims Anderson's information was not detailed enough to demonstrate reliability, and that Anderson merely responded affirmatively to Wells' questions. We disagree. In O'Connor, this court held the veracity prong was met where the informant was named, gave post-arrest statements against penal interest, and provided information about a specific person at a specific residence, certain events on a certain date, and a description of stolen brand named items located at the residence. 39 Wn. App. at 120-123.
Similarly, Anderson was identified by name, gave post-arrest statements against her penal interest, and provided detailed information about the drug transaction. Anderson did not merely respond to Wells' questions, she also provided a detailed description of the events that took place during her visit. She described seeing White go into his bedroom and return to the living room with methamphetamine, exchanging Percocet pills for the methamphetamine, and smoking some of the methamphetamine in White's presence. Anderson truthfully admitted to possession of methamphetamine in her car and accurately provided Deputy Wells with the location of these drugs. Anderson also described the extent of her knowledge of White and the purpose for five of her recent visits to White's residence. Taken together, the information Anderson provided was sufficiently detailed to establish her reliability.
Without citing to authority, White also argues Anderson's drug addiction and criminal history make her unreliable. But, Washington courts have not held a drug addict or a person with a criminal history is per se unreliable. And, in State v. Chenoweth, 127 Wn. App. 444, 455, 111 P.3d 1217 (2005), rev. granted, 156 Wn.2d 1031 (2006), we held the veracity prong was met where the criminal informant was named, made statements against penal interest, and provided the amount and kind of detail sufficient to support an inference of reliability. Likewise, here, the veracity prong was met despite Anderson's drug addition and criminal record.
Washington courts have concluded informants in possession of drugs at the time of arrest or with a history of drug purchases meet the veracity prong where the informant made statements against penal interest and was identified in the affidavit. See State v. Estorga, 60 Wn. App. 298, 304-305, 803 P.2d 813 (1991) (finding veracity met where informant made post-arrest statements against penal interest after found in possession of amphetamine and marijuana obtained that day from the place in question); State v. Hett, 31 Wn. App. 849, 850-852, 644 P.2d 1187 (1982) (finding veracity prong met where juvenile informant arrested for attempting to break into defendant's home admitted to having purchased marijuana from defendant in the past and was named in the affidavit).
Without citing authority, White also claims the timing of the warrant did not support Anderson's reliability. Because White did not raise this below, we will not consider it on appeal. RAP 2.5(a); see also Shannon, 100 Wn.2d at 37.
Without citing to authority, White also argues identifying Anderson by name in the affidavit is not sufficient to establish probable cause. But, the parties do not dispute identification of Anderson is the only one factor to be considered in determining whether the affidavit was supported by probable cause.
We conclude the court did not err in denying White's motion to suppress evidence gathered during the search of White's residence and in concluding the search warrant was supported by probable cause. We affirm White's conviction of possession of methamphetamine.
As an additional ground for review, White argues he appeared on the sentencing date but was before the wrong judge. It appears White was not present before the proper judge for sentencing, and a warrant was issued. This claim appears to be aimed at another appeal before this court. Please see State v. White, Nos. 56562-1-I and 56563-0-I. In any event, the record does not indicate that at the rescheduled sentencing hearing on May 5, White's failure to appear at the first sentencing date influenced the court's sentence. The court declined to sentence White to the high end of the range and instead sentenced him to eight months.
DNA Sample
White argues the statute that requires convicted felons to provide DNA, RCW 43.43.754, is unconstitutional because it authorizes a warrantless search without probable cause in violation of the Fourth Amendment and Article 1, § 7 of the Washington Constitution.
We considered and rejected White's arguments in State v. Surge, 122 Wn. App. 448, 94 P.3d 345 (2004), rev. granted, 153 Wn.2d 1008, 111 P.3d 1190 (2005). The Supreme Court accepted review and Surge is currently pending before the Court. Therefore, we decline to engage in a review of the Gunwall analysis for the State constitutional claims and follow our opinion in Surge.
State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
White asks the court to exercise its discretion to waive appellate costs under RCW 10.73.160 because of his "limited financial resources and the superior court's decision not to impose any non-mandatory fees." White does not make a compelling argument justifying the waiver of costs. State v. Blank, 131 Wn.2d 230, 233, 243, 253, 930 P.2d 1213 (1997) (explaining appellate courts may order convicted indigent defendants who do not prevail on appeal to pay appellate costs, and determining defendant failed to provide any compelling argument justifying waiver even though the defendant was indigent and presently incarcerated).
GROSSE and COLEMAN, JJ.