Opinion
No. 30075-3-II
Filed: November 30, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 02-1-01454-6. Judgment or order under review. Date filed: 03/13/2003. Judge signing: Hon. Richard a Strophy.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.
Counsel for Respondent(s), James C. Powers, Thurston County Prosecuting Attorney Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6001.
Clarence Farmer appeals his conviction for unlawful possession of methamphetamine, arguing that the search warrant was invalid because the supporting affidavit did not establish the informant's veracity. Because the search warrant affidavit named the informant, the informant made statements against her penal interest, and the police corroborated some of the informant's information, we affirm.
FACTS
On August 12, 2002, Thurston County Sheriff's Deputy Ruben Mancillas stopped Sarah Davis for a traffic violation. When Davis offered to share information about drug activity in Thurston County, Mancillas contacted Deputy Greg Elwin, a member of the Street Enforcement Team. Mancillas told Elwin that Davis wanted to inform about drug activity to avoid a citation for driving with a suspended license.
Elwin interviewed Davis, who said that she and her boyfriend had lived on Farmer's property for at least six months. She had seen Farmer manufacture methamphetamine by using a baster to remove the top layer of a bi-layer liquid from a jar, filter the liquid, and dry the methamphetamine by heating it on a stove. Farmer gave Davis some of the methamphetamine, which she had used the day before she was stopped. Elwin told Davis he would have to verify her information for her to avoid a citation. Elwin never told Davis she would not be prosecuted for any drug activity she admitted to during the interview.
After the interview, Elwin used Davis's information to apply by telephone for a warrant to search Farmer's residence. Elwin did not include the fact that Davis provided information in exchange for not being cited for driving while license suspended, but the trial court held that this was not a material omission and that even if it were, the trial court would have found the affidavit sufficient. Farmer does not raise this issue on appeal.
Elwin's affidavit did not state whether Davis had supplied information before. District court judge Kip Stilz issued a warrant based on Elwin's affidavit. A warrant search at Farmer's residence yielded a baggie of methamphetamine.
The State charged Farmer with one count of unlawful methamphetamine possession. After the trial court denied Farmer's motion to suppress the methamphetamine, a jury convicted him as charged.
ANALYSIS
Farmer argues that the warrant affidavit fails because it does not establish Davis's veracity. Farmer further asserts that Davis's alleged statements against penal interest are insufficient to establish her veracity. The State concedes that Davis had no history of providing reliable information, but argues that a combination of three factors establish her veracity: (1) her statements against penal interest, (2) independent police investigation, and (3) the affidavit specifically named her.
We give great deference to the issuing judge's probable cause determination. State v. Young, 123 Wn.2d 173, 195, 867 P.2d 593 (1994) (citing State v. Huft, 106 Wn.2d 206, 211, 720 P.2d 838 (1986)). Probable cause exists if the supporting affidavit recites objective facts and circumstances which, if believed, lead a neutral and detached person to conclude, more probably than not, that evidence of a crime will be found at the search site. In re Det. of Petersen, 145 Wn.2d 789, 797, 42 P.3d 952 (2002) (citations omitted).
Where the State seeks a search warrant on the basis of an informant's statements, we test the affidavit against the two-pronged Aguilar-Spinelli test. State v. Jackson, 102 Wn.2d 432, 433, 688 P.2d 136 (1984). Under Aguilar-Spinelli, the search warrant affidavit must establish: (1) the basis for the informant's knowledge and (2) the informant's veracity. State v. Tarter, 111 Wn. App. 336, 340, 44 P.3d 899 (2002) (citing State v. Duncan, 81 Wn. App. 70, 76, 912 P.2d 1090 (1996)). The second prong is at issue here.
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 State can satisfy the veracity prong in two ways: (1) by establishing the informant's credibility, usually by showing that the informant has provided reliable information before, or (2) by establishing that the facts and circumstances under which the informant provided the information reasonably support an inference the informant is telling the truth. State v. Lair, 95 Wn.2d 706, 709-10, 630 P.2d 427 (1981) (citations omitted).
Various factors are relevant to inferring the informant's truthfulness. See State v. O'Connor, 39 Wn. App. 113, 120, 692 P.2d 208 (1984). An informant's statement against penal interest to a police officer is one. State v. Estorga, 60 Wn. App. 298, 304, 803 P.2d 813 (1991). Naming the informant in the affidavit is another. O'Connor, 39 Wn. App. at 120. And independent police investigation can corroborate an informant's tip. Jackson, 102 Wn.2d at 438. But verifying innocuous details is insufficient; the investigation must point to suspicious or criminal activity similar to what the informant suggests. State v. Kennedy, 72 Wn. App. 244, 249, 864 P.2d 410 (1993) (quoting Jackson, 102 Wn.2d at 438).
The State specifically named Davis in the affidavit. Davis also made statements against her penal interest when she admitted watching Farmer manufacture methamphetamine and then using it herself. Finally, Elwin talked with Farmer two weeks before Davis gave police information and Farmer admitted using methamphetamine. These factors all support the issuing magistrate's decision in favor of probable cause.
But Farmer argues that Davis's statements do not corroborate her veracity because, under the corpus delicti rule, she was not at risk of being charged with a drug crime.
The corpus delicti rule requires the State to produce evidence, independent of the accused's statements, sufficient to support a finding that someone committed the crime charged. State v. Bernal, 109 Wn. App. 150, 152, 33 P.3d 1106 (2001), review denied, 146 Wn.2d 1010 (2002) (citing City of Bremerton v. Corbett, 106 Wn.2d 569, 574-75, 723 P.2d 1135 (1986)). Farmer reasons that because the methamphetamine Davis allegedly saw him produce may have been completely consumed, the State could not prosecute her for that possession; thus, according to Farmer, her statements were not against her penal interest and do not help establish her veracity.
In Estorga, after police discovered marijuana and amphetamines in his home, a named informant agreed to provide information about a marijuana grow operation in exchange for a promise not to prosecute him for the drugs found in his home. Estorga, 60 Wn. App. at 305. The warrant affidavit containing the informant's statement had no information about his reliability. One of the defendants argued that the informant's statement against penal interest lent nothing to his credibility because he would be immune from prosecution if police discovered the grow operation; or if the police discovered no operation, the State could not prosecute because it could not establish the corpus delicti. We rejected the argument, concluding that the facts and circumstances gave the informant a strong motive to be truthful. Estorga, 60 Wn. App. at 303-05.
Statements like the one here are more likely to be reliable because people do not usually admit to possible criminal behavior, particularly to a police officer. Lair, 95 Wn.2d at 711. It would be the rare person who could freely admit criminal activity in reliance on a technical defense to charges that might follow. We find it highly unlikely that Davis admitted using methamphetamine only because she believed the State could not prove corpus delicti.
Giving great deference to the issuing magistrate, we conclude that the search warrant affidavit sufficiently corroborated the informant's veracity.
Affirmed.
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.
HUNT, J. and VAN DEREN, J., Concur.