Opinion
No. 23803-2-III.
March 27, 2007.
Appeal from a judgment of the Superior Court for Okanogan County, No. 03-1-00060-2, Jack Burchard, J., entered January 26, 2005.
Counsel for Appellant(s), Donald G. Miller, Attorney at Law, Spokane, WA.
Counsel for Respondent(s), Stephen Michael Bozarth, Okanogan County Prosecutors Office, Okanogan, WA.
Affirmed by unpublished opinion per Brown, J., concurred in by Sweeney, C.J., and Kulik J.
Brandon Alexander appeals his conviction for possession of methamphetamine with intent to deliver and possession of drug paraphernalia. He contends the trial court erred in denying his suppression motion and concluding the community corrections officers and police conducted a valid "warrantless" search of his house. Because Mr. Alexander's sentence included a search condition, and this search was based upon reasonable suspicion of criminal conduct, we affirm.
FACTS
On February 20, 2003, Mr. Alexander's mother, Nicole Alexander, called community corrections officer (CCO) Jeanie Anderson and told her she was worried her son was using and or selling drugs. Ms. Alexander managed the apartment where Mr. Alexander lived. She said he was withdrawn, not working, not paying his bills, his electricity was turned off, his windows were darkened, he was sleeping all day, he was leaving at odd hours, and he had irregular traffic coming and going from his apartment. She said drugs had been a problem for him and she knew that some of the people coming and going from the apartment had drug connections. She was concerned about him and the safety of the others in the building.
Based on training and experience, CCO Anderson believed these observations were indications of methamphetamine use. She determined Mr. Alexander was still on supervision, and as a condition of his supervision, he was subject to search of his person, residence, automobile, and other personal property. CCO Anderson, CCO Dan Gordon, and Police Officer Eric Stephenson went to Mr. Alexander's apartment to search his residence. Mr. Alexander's wife, Jennifer Alexander, opened the door and CCO Anderson explained who she was, asked to be let in, and then explained she was there to conduct a search. Ms. Alexander let them in. She was not told she did not have to submit to a search. Neither Mr. nor Ms. Alexander asked them to leave.
Upon entering the residence, CCO Anderson noticed Mr. Alexander immediately "darted" into the bedroom. Report of Proceedings (RP) at 29. His actions lead her to believe "he had some stuff in there." Id. CCO Anderson asked Mr. Alexander to come out and she searched the bedroom.
She found methamphetamine and drug paraphernalia and turned the investigation over to Officer Stephenson. Officer Stephenson arrested Mr. Alexander. After being advised of his rights, Mr. Alexander provided a written statement admitting to possessing and intending to deliver methamphetamine.
The State charged Mr. Alexander with possession of methamphetamine with intent to deliver and possession of drug paraphernalia. Mr. Alexander unsuccessfully moved to suppress evidence and dismiss the case. On May 6, 2004, Mr. Alexander entered into a stipulated continuance, reducing his charges if he followed certain conditions for two years. A breach of the agreement would result in a bench trial on stipulated evidence.
On October 21, 2004, the court held a compliance hearing. The court vacated the stipulated continuance and directed the State to reinstate prosecution. The court held a stipulated facts hearing and found Mr. Alexander guilty of both charges. Mr. Alexander appealed.
ANALYSIS
The issue is whether the trial court erred in deciding the officers possessed a "well-founded" suspicion Mr. Alexander violated a sentencing condition justifying the search of his apartment. Mr. Alexander contends the search was impermissible under the knock and talk rules of State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).
We review a court's suppression conclusions of law de novo. State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003). Unchallenged findings are verities on appeal. Id. Warrantless searches are presumed unconstitutional. Wash. Const. art. I, § 7; State v. Hastings, 119 Wn.2d 229, 234, 830 P.2d 658 (1992). A warrant exception exists to search a probationer's person, home, car, or effects upon a "well founded suspicion that a probation violation has occurred." State v. Patterson, 51 Wn. App. 202, 204-05, 752 P.2d 945 (1988); RCW 9.94A.631; State v. Campbell, 103 Wn.2d 1, 22, 691 P.2d 929 (1984). A well-founded suspicion is less than probable cause. Patterson, 51 Wn. App. at 205. An officer does not need consent to search a probationer's home if the search falls within the statutory probationer exception. RCW 9.94A.631; Campbell, 103 Wn.2d at 22; see Ferrier, 136 Wn.2d at 115-16.
An informant's tip may serve as the basis for a search if there is "some indicia of reliability to support the inference that the informant is telling the truth." Patterson, 51 Wn. App. at 205. A named citizen informant may be presumed reliable when no suspicious circumstances exist to rebut that presumption, i.e., informant appears to be a participant in the crime; informant is implicated in another crime and is seeking leniency; informant has a motive to falsify information; or, informant provided the information out of spite. State v. Rodriguez, 53 Wn. App. 571, 574-77, 769 P.2d 309 (1989).
Here, the unchallenged facts show Mr. Alexander's mother contacted CCO Anderson and provided observations causing her to believe her son was involved in drug activity. She expressed concern for him and others. Nothing suggests her reliability should be questioned. See id. at 574-77. Based on training and experience, CCO Anderson believed these observations to be indications of drug use in violation of his sentence conditions. The observations were more than innocuous facts when viewed in light of the CCO's training and experience. See State v. Samsel, 39 Wn. App. 564, 570-71, 694 P.2d 670 (1985). Based on this information, CCO Anderson had adequate information to support a "well founded suspicion that a probation violation . . . occurred." Patterson, 51 Wn. App. at 205.
Finally, Mr. Alexander's Ferrier argument is inapplicable. Ferrier addressed a warrantless search in a knock and talk consent situation, and held the individual must be advised of the right to refuse consent. Ferrier, 136 Wn.2d at 115. Here, the officers had a lawful reason to conduct a warrantless search; the basis for the search did not hinge upon consent. RCW 9.94A.631; Campbell, 103 Wn.2d at 22; Patterson, 51 Wn. App. at 204-05.
In passing, Mr. Anderson initially argued the trial court erred in convicting him under RCW 69.50.401(a)(1)(ii), rather than RCW 69.50.401(a)(1)(iii), for possession of powder methamphetamine. In his reply brief, he concedes the issue is moot in light of the recent decision in State v. Cromwell, 157 Wn.2d 529, 140 P.3d 593 (2006).
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.
WE CONCUR:
Sweeney, J.
Kulik, J.