Opinion
No. 35397-1-II.
April 8, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 04-1-01853-4, Russell W Hartman, J., entered October 6, 2006.
Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Quinn-Brintnall and Penoyar, JJ.
William Frederick Olin appeals the denial of his motion to suppress evidence seized from his house pursuant to a search warrant obtained by law enforcement. He argues that the warrant lacks probable cause, fails the Aguilar-Spinelli test for informant veracity, and contains material factual omissions. Further, he argues that he was denied effective assistance of counsel because his attorney did not interview the informant before the suppression hearing. We affirm.
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).
Facts
I. Background
The Kitsap County Sheriff's Office received reports of two burglaries within a twenty-four-hour period in the same Port Orchard neighborhood. The burglar entered both homes through the garage. The burglar entered the Craig home on October 25, 2004, and the Craigs reported "a .22 calibre handgun, ID, checks, lap top computer, a Ford truck, air compressor and nail guns and credit cards" as missing. Clerk's Papers (CP) at 131. On October 26, 2004, the burglar entered the Benton home and took the wife's purse which contained "credit cards, checks, ID and other documents with the Benton name on them . . . [and] the keys to [their] vehicle. With the keys the suspect took the vehicle as well." CP at 131. The vehicle was described as a green Ford truck with a green fiberglass canopy.
A deputy familiar with the burglaries spotted a man driving the Bentons' truck without its canopy. Following a high speed chase, the police apprehended the driver. He initially gave a false name, but a deputy later identified him as Derek Smith. Authorities found a gun with the serial number removed, a bag containing amphetamines and drug paraphernalia, another bag with several precursor materials for manufacturing amphetamines, and several items belonging to the Bentons in the truck.
Detective Jon VanGesen interviewed Smith in jail. Smith said that, about two hours before the high speed chase, he was with Adam Graden and Matthew Snyder at Billy Olin's house, where he purchased and injected methamphetamine. Smith also said that he noticed a green Ford truck in Olin's garage. The truck did not have a canopy, but there was a fiberglass canopy in the garage next to the truck. Before he left, Adam Graden gave him the truck, but not the canopy. He believed the canopy was still in Olin's garage.
A judge issued a warrant allowing law enforcement to search Olin's house and the attached garage for evidence relating to the two burglaries as well as methamphetamine use and manufacture. During the search of the house, officers found items used to manufacture methamphetamine. When Olin was arrested, he waived his right to remain silent and confessed that he manufactured methamphetamine and that the items related to manufacture belonged to him.
II. Procedural History
The State charged Olin with one count of methamphetamine manufacturing. Olin challenged the warrant's validity and moved to suppress the evidence seized from his house. Following both a CrR 3.6 suppression hearing and a Franks hearing, the trial court upheld the warrant.
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
Seven months later, Olin's new attorney submitted a "motion for reconsideration of [ Franks] hearing to suppress the search warrant." CP at 82. He attached Smith's declaration that accused VanGesen of fabricating the content of their interview. The trial court denied the motion. Olin then stipulated to the facts and the trial court found him guilty as charged. Olin appeals.
ANALYSIS
I. Facial Validity of the Warrant
Olin first argues that the warrant is facially invalid because the affidavit does not support probable cause or demonstrate informant veracity.
A. Standard of Review
We examine search warrants de novo and evaluate them in a commonsense, practical manner to determine whether the facts support probable cause. State v. Perez, 92 Wn. App. 1, 4, 963 P.2d 881 (1998). And we review for abuse of discretion, giving great deference to a trial court's determination of probable cause. State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002).
B. Probable Cause
"A search warrant may issue only upon a determination of probable cause." "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). Accordingly, "probable cause requires a nexus between criminal activity and the item to be seized, and also a nexus between the item to be seized and the place to be searched." State v. Goble, 88 Wn. App. 503, 509, 945 P.2d 263 (1997).
Here, Officer Chad Berkenfeld's affidavit in support of the search warrant established the following relevant facts: (1) Berkenfeld believed that one person committed both the Craig and Benton burglaries because the crimes were committed within a twenty-four-hour time span, the victims lived within one-and-a-half blocks of each other, and the burglar used the same method of entry; (2) Smith possessed several of the items stolen from the Benton home; (3) Smith told VanGesen that Benton's truck had been stored in Olin's garage and that the stolen truck canopy remained in the garage; and (4) Smith said he used and purchased methamphetamine in Olin's home just hours before his arrest. Many of the stolen items were still missing when police sought the warrant.
Olin argues that the facts primarily implicate Graden, who did not live with Olin. But the affidavit shows that Olin's house was used to store items stolen from the Bentons and, therefore, was a likely place to find other items stolen by the same burglar. Despite Olin's assertion, the warrant does not target Olin's home merely because drug use took place there; rather, it establishes a nexus between both the methamphetamine possession and use and the possession of specific stolen items and his house.
Olin also argues that the search should have been limited to the attached garage. The affidavit, however, makes clear that methamphetamine use had recently occurred in the house and that at least one stolen item was still stored in the garage. The trial court did not err when it held that the affidavit established probable cause to search both the house and the garage.
C. Informant's Veracity
Olin next asserts that the search warrant affidavit failed to demonstrate Smith's veracity. Washington follows the Aguilar-Spinelli test for informant's tips supporting search warrants. Under that test, an affidavit based on an informant's tip establishes probable cause only if it demonstrates the informant's basis of knowledge and veracity. Vickers, 148 Wn.2d at 112.
At least three factors established Smith's veracity. First, Smith was identified. This factor is a strong indicator of reliability because Smith may be held accountable for false accusations. State v. Chenoweth, 160 Wn.2d 454, 483, 158 P.3d 595 (2007). Second, Smith made statements against penal interest when he admitted that he bought and used methamphetamine and that he possessed stolen property. "Statements against penal interest are intrinsically reliable because a person is unlikely to make a self-incriminating admission unless it is true." Chenoweth, 160 Wn.2d at 484. Finally, the reliability of admissions against penal interest may be greater in post-arrest situations because the arrestee risks disfavor with the prosecution if he lies. State v. O'Connor, 39 Wn. App. 113, 121, 692 P.2d 208 (1984). In light of these strong indications of reliability, the trial court did not err when it held that the Aguilar-Spinelli test was satisfied.
There is an apparent case law split on whether there is a presumption of reliability for named citizen informants when the informant is personally implicated in the criminal activity at issue. Contrast State v. Rodriguez, 53 Wn. App. 571, 576-77, 769 P.2d 309 (1989) (holding that suspicious circumstances greatly diminish the inference of an informant's reliability) with State v. Chenoweth, 127 Wn. App. 444, 454, 111 P.3d 1217 (2005) (holding that suspicion of a citizen informant does not vitiate the inference of reliability), aff'd on other grounds, 160 Wn.2d 454 (2007). We do not resolve this issue because we hold that Smith can be found reliable without the presumption.
D. Additional Arguments
Olin presents four additional arguments about the warrant's facial validity. First, Olin argues that the information in the warrant was stale because it was executed six days after police interviewed Smith. But there is no reason to believe that the numerous stolen or drug-related items would disappear in less than a week. See State v. Maddox, 152 Wn.2d 499, 506, 98 P.3d 1199 (2004) (ruling that "information is not stale for purposes of probable cause if the facts and circumstances in the affidavit support a commonsense determination that there is a continuing and contemporaneous possession of the property intended to be seized"). Second, he erroneously claims that the warrant did not incorporate Berkenfeld's affidavit. The warrant stated it was issued "upon the sworn complaint heretofore made and filed . . . and incorporated herein by reference." Ex. 1 at 1. Third, Olin asserts that the warrant was overbroad. But this argument rests solely on the erroneous assertion that the warrant did not incorporate Berkenfeld's affidavit, which explicitly linked possession of the truck canopy to the other stolen property. Finally, Olin states the warrant lacked specificity. This argument also fails because the warrant lists two specific crimes for which Olin was under suspicion and contains an itemized list of stolen items and methamphetamine and related paraphernalia.
Because none of Olin's challenges to the search warrant have merit, we hold that the search warrant was facially valid.
II. Franks Motion
Olin also argues that the trial court erred when it denied his Franks motion at the initial suppression hearing and when it denied his motion for reconsideration based on new evidence. Under Franks, an omission in a search warrant affidavit may invalidate the warrant only if the omission was both material and made intentionally or with "reckless disregard for the truth." State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985). An omission is material if it was necessary to the finding of probable cause. State v. Garrison, 118 Wn.2d 870, 874, 827 P.2d 1388 (1992).
At the Franks hearing, the trial court found that the search warrant application had four omissions: (1) Smith initially "lied about his name"; (2) Smith "purchased methamphetamine at Olin's home for $100 and exchanged part of that methamphetamine for the stolen Benton truck"; (3) Smith denied knowledge of methamphetamine-related material in the truck; and (4) the magistrate was told that Smith was a convicted felon, but not that he had multiple felony convictions for crimes of dishonesty. CP at 71. The trial court concluded these omissions were not material.
We agree with the trial court. The omitted facts were not necessary to a determination of probable cause and, thus, were not material. The affidavit contains much information that casts doubt on Smith's credibility, including the fact that Smith: (1) drove a stolen truck containing amphetamines, methamphetamine manufacturing equipment, a handgun with the serial number scraped off, keys, and financial and identity information owned by a burglary victim; (2) attempted to elude police in a high-speed chase in which he repeatedly tried to cause rear-end collisions with police vehicles; (3) told police to kill him after he was apprehended; (4) used methamphetamine two hours before his arrest; and (5) was a convicted felon and had a felony warrant for eluding.
The omitted facts speak solely to issues undermining Smith's credibility, but the affidavit clearly presents that issue and the omitted facts are less probative of a lack of credibility than are the included facts. We conclude that the trial court did not err when it held that no Franks violation occurred.
Further, even if the affidavit included the omitted facts, probable cause existed because the affidavit contained information from which an ordinary prudent person would conclude that a crime had been committed at Olin's residence. State v. Perez, 92 Wn. App. at 4.
B. Motion for Reconsideration
Olin asserts that the trial court erred when it denied his motion to reconsider its Franks ruling. The trial court reviewed Olin's motion on its merits under CrR 7.8(b)(2), which allows a court to grant relief from an order based on newly discovered evidence. "We review a trial court's CrR 7.8 ruling for an abuse of discretion," reversing only if the trial court based its decision on untenable grounds or reasons. State v. Zavala-Reynoso, 127 Wn. App. 119, 122, 110 P.3d 827 (2005); see also State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). Here, the trial court held that Olin failed to prove that the new evidence would "probably change the result of the [suppression hearing]" and "could not have been discovered before [the hearing] by the exercise of due diligence." CP at 125 (quoting State v. D.T.M., 78 Wn. App. 216, 219, 896 P.2d 108 (1995)); see also State v. Williams, 96 Wn.2d 215, 222-23, 634 P.2d 868 (1981)).
Both parties point to the trial court's failure to apply Kitsap County Local Court Rule (KCLCR) 59 on motions to reconsider. See Kitsap County Local Criminal Rule (KCLCrR) 1.1 (incorporating KCLCR 59 into criminal proceedings). KCLCR 59 motions must be brought within ten days of the order and Olin delayed nearly seven months. And Olin incorrectly asserts that CrR 7.8 pertains only to judgments. The rule plainly applies to "a final judgment, order, or proceeding." CrR 7.8(b) (emphasis added).
The record is clear that Smith was readily available before the suppression hearing. He was interviewed by VanGesen while being held in jail on charges closely related to the evidence against Olin. And there is no reason to conclude that a trial court would find credible Smith's accusations that VanGesen lied in his sworn declaration. Thus, the trial court did not abuse its discretion when it denied Olin's motion to reopen the issue of the search warrant's validity based on Smith's late declaration.
Smith's declaration states that he told VanGesen that he obtained the truck near, not at, Olin's house and could not remember where he purchased the drugs. And Smith claimed that VanGesen wanted to "get back at" him because Smith had previously led police on a wild goose chase by fabricating information against other suspects. CP at 106.
III. Assistance Of Counsel
Next, Olin argues that his counsel was ineffective because his trial attorney did not interview Smith before the suppression hearing. To prevail on this claim, Olin must show that deficient performance caused him prejudice, i.e., that the trial's result would have differed. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). Olin fails to allege prejudice or to brief this necessary element of his ineffective assistance claim. We do not ordinarily address claims without reference to the record or adequate briefing. See RAP 10.3(a)(6); Howell v. Spokane Inland Empire Blood Bank, 117 Wn.2d 619, 624, 818 P.2d 1056 (1991) (holding that an assignment of error unsupported by legal argument will not be considered on appeal).
Furthermore, when asked to vacate the conviction and allow a new hearing on the search warrant based on ineffective assistance of counsel, the trial court expressly concluded that Smith's declaration would not "probably change the result of the [hearing]." CP at 125 (quoting State v. D.T.M., 78 Wn. App. at 219). Because Olin has neither claimed or established prejudice, his claim of ineffective assistance fails.
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. and PENOYAR, J., concur