Opinion
No. 24085-1-III.
November 21, 2006.
Appeal from a judgment of the Superior Court for Benton County, No. 02-1-00939-9, Cameron Mitchell and Craig J. Matheson, JJ., entered November 8, 2004, and January 31, 2005.
Counsel for Appellant(s), Mason Jones Pickett, PICKETT LAW OFFICE, Kennewick, WA.
Counsel for Respondent(s), Julie Elizabeth Long, Benton County Prosecutors Office M/s G, Kennewick, WA.
Affirmed by unpublished opinion per Brown, J., concurred in by Kato and Kulik, JJ.
Jeffrey Watts was convicted in a bench trial of first degree theft for collecting on a false auto-insurance claim for damage and lost stereo equipment. We reject his appeal centered on whether search-warrant probable cause existed and whether his statements were voluntary. Accordingly, we affirm.
FACTS
In May 2001, Kennewick Police Officer Roman Trujillo responded to Mr. Watts' apartment on a malicious mischief call. Officer Trujillo learned specific stereo equipment was removed from Mr. Watts' truck in addition to window and paint damage. Neighbor Clay Meyers said he saw a "younger white male" "in the area of the truck when the alarm went off." Clerk's Papers (CP) at 66. Mr. Watts claimed over $11,000 damages, but settled for $7,888.37 from his insurance company. Officer Trujillo considered the incident suspicious because both vandalism and theft had occurred.
In August 2002, Rebecca (Becky) Hargrove, Mr. Watts' former girl friend, told Kennewick Police Sergeant Mark Weber that she was present when Mr. Watts staged the May 2001 incident to falsely collect the insurance. She told Sergeant Weber that Mr. Watts put the equipment back in his vehicle after the incident.
Sergeant Weber confirmed Ms. Hargrove's report that a previous claim had been made by Mr. Watts in 1999 for equipment loss of $6,717.04. Sergeant Weber requested and received Mr. Watts' insurance records and copies of invoices from a stereo shop, Traffic Jams. Sergeant Weber confirmed that Traffic Jams' employed a person mentioned by Ms. Hargrove. Further, Sergeant Weber learned that Traffic Jams' manager, Mark Gocus had recently seen Mr. Watts' vehicle in their shop. Mr. Gocus reported Mr. Watts had two chrome PPI amps in the vehicle and the same speaker assembly he always had. He was familiar with Mr. Watts' vehicle. Sergeant Weber dispelled his speculation that Traffic Jams might be involved.
Without mentioning his dispelled speculations about Traffic Jams or emphasizing the recent break-up between Mr. Watts and Ms. Hargrove, Sergeant Weber used this information in an affidavit to obtain a search warrant for Mr. Watts' vehicle. Sergeant Weber and Officer Christopher Guerrero went to Mr. Watts' home to execute the warrant. Sergeant Weber read Mr. Watts his Miranda rights. Mr. Watts was very polite and cooperative and waived those rights. Mr. Watts admitted his May 2001 wrongdoing. He led the police to his vehicle.
Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
The police then searched Mr. Watts' vehicle, finding the stereo equipment listed in the warrant. Sergeant Weber informed Mr. Watts of their search warrant and began to seize the stereo equipment. At this point, Mr. Watts told the police he did not know if he wanted to release the equipment without first talking to an attorney. Sergeant Weber explained they were seizing the equipment under the search warrant, regardless of whether he talked to an attorney.
Sergeant Weber then attempted to clarify whether Mr. Watts was invoking his right to counsel. Mr. Watts made additional, unsolicited statements to the police. Sergeant Weber again attempted to clarify whether Mr. Watts wanted to talk to an attorney. Mr. Watts then waived his right to counsel, a second time, and provided a written statement.
The State charged Mr. Watts with first degree theft. Mr. Watts unsuccessfully moved to suppress the evidence seized from his vehicle and his statements to police. Mr. Watts was found guilty in a stipulated facts bench trial. He appealed.
ANALYSIS A. Physical Evidence Suppression
The issue is whether the trial court erred in not suppressing the physical evidence seized under the warrant and concluding the search warrant affidavit established probable cause for the search. Mr. Watts contends the affidavit was insufficient because it did not mention that Ms. Hargrove had recently broken up with him and it did not mention Sergeant Weber's speculation that Traffic Jams might be involved in the May 2001 incident.
The trial court did not enter findings of fact or conclusions of law in the CrR 3.5 and CrR 3.6 hearing, but did provide a memorandum opinion sufficient to permit review. See State v. Clark, 46 Wn. App. 856, 859, 732 P.2d 1029 (1987).
We review a trial court's conclusions of law in a motion to suppress evidence de novo. State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003). The trial court's unchallenged findings of fact are treated as verities on appeal. Id. A trial court's decision to issue a search warrant is reviewed for an abuse of discretion. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). "Great deference" is given to that decision and all doubts are to be resolved in favor of the warrant's validity. Id.
Informant's tips are evaluated under the Aguilar-Spinelli basis of knowledge and credibility tests. CrR 2.3(c); State v. Salinas, 119 Wn.2d 192, 200, 829 P.2d 1068 (1992); State v. Tarter, 111 Wn. App. 336, 340, 44 P.3d 899 (2002). The standard is relaxed for a named citizen who provides first-hand information. Tarter, 111 Wn. App. at 340. But this relaxed standard does not apply if the informant has an apparent motive to falsify information or to provide information out of spite, such as Ms. Hargrove. State v. Rodriguez, 53 Wn. App. 571, 574-75, 769 P.2d 309 (1989).
Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).
When an informant has a motive to provide false information or is apparently spiteful, the credibility prong may be established by an independent police investigation. State v. Jackson, 102 Wn.2d 432, 438, 688 P.2d 136 (1984). The police must corroborate more than innocuous facts. Id. "[An] [i]ndependent police investigation should point out "probative indications of criminal activity along the lines suggested by the informant." State v. Duncan, 81 Wn. App. 70, 78, 912 P.2d 1090 (1996), quoted in Jackson, 102 Wn.2d at 438 (internal quotes omitted).
Here, Ms. Hargrove's personal knowledge is conceded. Our focus is corroboration in support of Ms. Hargrove's credibility. The police confirmed the 1999 insurance claim, the 2001 insurance claim, the use of Traffic Jams by Mr. Watts, and Officer Trujillo's assessment of the suspicious nature of the May 2001 malicious mischief report. Further, Sergeant Weber found that some of the allegedly stolen stereo equipment had been seen recently in Mr. Watts' vehicle by Mr. Gocus. And, Mr. Gocus was familiar with the truck and reported Mr. Watts "never had a Kicker system." CP at 69. These facts support Ms. Hargrove's statement. Thus, we agree with the trial court that sufficient corroborative facts supported warrant issuance. In other words, any deficiency in Ms. Hargrove's veracity was cured by an independent police investigation of more than innocuous details in her statements. Jackson, 102 Wn.2d at 438.
Next, Mr. Watts contends the police omitted material facts from the warrant affidavit by failing to mention Sergeant Weber's speculation that Traffic Jams might have been involved in the theft. A search warrant may be invalid if there is an omission of fact in the warrant affidavit that is both: (1) material, and (2) made deliberately or with reckless disregard for the truth. State v. Seagull, 95 Wn.2d 898, 908, 632 P.2d 44 (1981). A statement is made in reckless disregard for the truth if the officer making the statement seriously doubts its truthfulness. State v. Chenoweth, 127 Wn. App. 444, 456, 111 P.3d 1217 (2005), review granted, 156 Wn.2d 1031 (2006).
Sergeant Weber did not find any evidence to support his speculation. He did not include his unsupported speculations in the warrant affidavit. Sergeant Weber's speculations were unsubstantiated and were not material to whether Mr. Watts committed the crime charged. Seagull, 95 Wn.2d at 908. Further, no evidence shows the speculations were deliberately or recklessly omitted from the affidavit in disregard for the truth. Id.; Chenoweth, 127 Wn. App. at 456.
Finally, Mr. Watts contends he had a constitutionally protected privacy interest in the records from Traffic Jams and in his insurance records. Mr. Watts argues the police failed to use lawful methods to obtain the records. Although this concern is raised for the first time on appeal, it involves a manifest constitutional error that we review de novo. RAP 2.5(a)(3); State v. Curtis, 110 Wn. App. 6, 11, 37 P.3d 1274 (2002).
The Fourth Amendment protects privacy interests when a person exhibits a subjective expectation of privacy that society is willing to recognize as reasonable. State v. Christian, 95 Wn.2d 655, 659, 628 P.2d 806 (1981); State v. Duncan, 81 Wn. App. 70, 74, 912 P.2d 1090 (1996). A defendant bears the burden to establish a subjective expectation of privacy. Duncan, 81 Wn. App. at 74; State v. Jones, 68 Wn. App. 843, 850, 845 P.2d 1358 (1993). "Absent some indication of a desire to maintain privacy, [courts] are reluctant to find such an expectation in records held by a third party." Duncan, 81 Wn. App. at 74.
During the investigation, the police requested records from Mr. Watts' insurance company and it requested invoices from Traffic Jams (showing Mr. Watts' stereo purchases). Mr. Watts has not shown he had a subjective expectation of privacy in these records and he has not shown the police used unlawful means to obtain the information. Duncan, 81 Wn. App. at 74; Jones, 68 Wn. App. at 850.
B. Statement Suppression
The issue is whether the trial court erred in denying Mr. Watts' CrR 3.5 motion to suppress his statements and concluding the statements were not coerced.
As noted above, our review of suppression motions is de novo. We will not disturb a trial court's determination that a confession is voluntary if substantial evidence supports the decision by a preponderance of the evidence. State v. Aten, 130 Wn.2d 640, 664, 927 P.2d 210 (1996).
A confession is voluntary if it is made after the defendant has been advised of his Miranda rights and he "knowingly, voluntarily and intelligently waives those rights." Id. at 663. We review the totality of the circumstances to determine if the confession was coerced. State v. Broadaway, 133 Wn.2d 118, 132, 942 P.2d 363 (1997). This includes a review of "any promises or misrepresentations made by the interrogating officers." Id.
A defendant's equivocal request for counsel limits police interrogation to clarifying the defendant's request. State v. Robtoy, 98 Wn.2d 30, 38-39, 653 P.2d 284 (1982). A defendant's unequivocal request for counsel ceases all interrogation, "'unless the accused himself initiates further communication, exchanges, or conversations with the police.'" State v. Grieb, 52 Wn. App. 573, 575, 761 P.2d 970 (1988) (quoting Edwards v. Arizona, 451 U.S. 477, 485, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981)).
Here, the trial court specifically resolved the credibility issues for the State. We defer to the trial court's credibility determinations. Sergeant Weber and Officer Guerrero went to Mr. Watts' home to execute a search warrant. Sergeant Weber read Mr. Watts his Miranda rights. Mr. Watts waived his rights and admitted his involvement in the crime. He led the police to the garage where his vehicle was parked. Mr. Watts was very cooperative until the police began seizing evidence under the warrant.
Then, Mr. Watts told the police he did not know if he wanted to release the property until he talked to an attorney. Sergeant Weber told Mr. Watts he was seizing the equipment under the search warrant regardless of whether he talked to an attorney. Sergeant Weber asked Mr. Watts if he was invoking his right to counsel. Mr. Watts began making unsolicited statements to the police. Sergeant Weber told Mr. Watts he was interested in what he had to say, but he first needed to clarify whether he was invoking his right to counsel. Mr. Watts waived his right to counsel, for the second time, and provided a written statement. The police did not make any promises or threats in exchange for Mr. Watts' statements.
Although Mr. Watts did make an equivocal request for counsel, he initiated further, unsolicited communications with the police when Sergeant Weber attempted to clarify his request. Robtoy, 98 Wn.2d at 38-39; Grieb, 52 Wn. App. at 575. He then waived his rights for a second time.
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.
KATO and KULIK, JJ., concur.