State Of Washington, V Troy Darrin Meyers ( 2018 )

LED
COURT OF APPEALS O~V I
STATE OF WASHINGTON
2OI8SEP—~ AM 9:30
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 77749-1-I
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
TROY DARRIN MEYERS, )
)
Appellant. ) FILED: September 4, 2018
SCHINDLER, J. — The court found Troy Darrin Meyers guilty of unlawful
possession of methamphetamine with intent to deliver and unlawful possession
of cocaine. Meyers seeks reversal of the convictions, arguing the court erred in
denying his motion to suppress the evidence seized from his house. Meyers
contends the affidavit in support of the search warrant did not support finding
probable cause to issue the search warrant. Meyers also contends the court
erred by imposing discretionary legal financial obligations. Because the affidavit
supports probable cause to issue the search warrant, we affirm the convictions.
But we remand to consider the ability to pay the discretionary $2,000 drug
enforcement fund fee and upon submission of a verified petition of indigency, the
$100 crime laboratory fee.
No. 77749-1 -1/2
FACTS
In 2014, an informant contacted Department of Corrections (DCC)
probation officer Rob Campbell about Troy Darrin Meyers selling drugs. DCC
Officer Campbell had worked with the informant for several years. The informant
told Campbell that because she did not get along with Meyers, he should talk to
Patrick Lenhart and Adrienne Woods.
In April, Campbell met with Lenhart and Woods. Campbell contacted
Vancouver Police Department East Precinct Neighborhood Response Team
Detective Erik Jennings. Detective Jennings met with Campbell, Lenhart, and
Woods. Woods agreed to work with the police to conduct a “controlled buy” of
methamphetamine from Meyers. Woods requested her identity and the
information she provided remain confidential.
On May 21, Woods called Meyers to arrange to meet him at his house to
buy methamphetamine. The police searched Woods to ensure she did not have
“money and contraband.” Detective Jennings gave Woods the prerecorded “buy
money.” A number of other officers also participated in the controlled buy.
During the approximate 10 minutes she was in Meyers’ house, Woods sent text
messages to Detective Jennings. After Woods left the house, she met Detective
Jennings and handed him a “baggie” with a white crystalline substance.
Detective Jennings confirmed the white substance was methamphetamine.
On May 23, 2014, Detective Jennings submitted an affidavit in support of
the request for a warrant to search Meyers’ residence for evidence of possession
of methamphetamine with intent to deliver. The affidavit refers to Woods as the
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No. 77749-1-1/3
“Cl.”1 Detective Jennings describes the relationship between the Cl and Meyers
and Woods’ previous purchases of methamphetamine.
[T]he CI stated he/she has known a white male subject identified as
Troy Meyers for approximately 9 months. During this time period,
the Cl stated he/she has purchased Methamphetamine from
[Meyers] 2 to 3 times a week. During the Cl’s friendship!
relationship with [Meyers], the CI stated he/she has made over 50
purchases of Methamphetamine from [Meyers]. When asked, CI
stated every time he/she has contacted [Meyers], he always had or
was able to obtain Methamphetamine. The Cl told me he/she has
been present on numerous occasions when [Meyers] has sold
Methamphetamine to others. During this interview, your affiant
obtained a photo of Troy Darrin Meyers and showed it to the Cl.
The Cl identified [Meyers] as the person he/she has purchased
Methamphetamine from.
The affidavit describes the May 21 controlled buy of methamphetamine
from Meyers.
Within the past 72 hours (May 21 May 23, 2014) your affiant
-
contacted. [sic] At this time, the CI stated he/she was ready to set
up a deal with [Meyers]. We then made arrangements to meet.
Detective Ruth and I met with the Cl and transported him/her to the
Vancouver West Police Precinct, 2800 NE Stapleton Rd. At this
time, the CI was searched. There were no drugs, money and/or
contraband located. I then had the CI telephone [Meyers] on his
cell phone (360-281-1568).
Following contact and as the two exchanged text messages, the Cl
made arrangements to purchase an undisclosed amount of
methamphetamine. Arrangements were then made for the CI to
travel to [Meyers]’s home, 9810 NE St., to conduct the transaction.
I provided the Cl with pre-recorded buy money, after which I and
other NRT[2] Detectives maintained watch over the Cl until he /
she’s arrival at [Meyers]’s residence. The Cl approached the front
door of 9810 N.E. 67th St and was observed entering the residence.
After a few minutes the Cl was observed exiting the front door. The
Cl was again kept under surveillance until he/she was contacted by
1 Confidential informant.
2 Neighborhood response team.
3
No. 77749-1 -114
law enforcement. Upon meeting up, the Cl immediately turned over
a clear plastic baggie, with what appeared to be a small quantity of
a white crystal substance, which appeared to be
Methamphetamine.
Again the CI was searched and there were no drugs, money and/or
contraband located.
The CI stated he/she purchased the Methamphetamine from
[Meyers]. The Cl stated he/she handed the money to [Meyers] who
provided him/her with the Methamphetamine, which he produced
from a black fire resistant lock box in his bedroom.
The Cl stated there were additional methamphetamine in the
residence as well as a digital scale, packaging material (plastic
baggies) and a drug “snort” plate.
The affidavit states the Cl also told Detective Jennings that Meyers’
girlfriend Virginia lives at the house and that Meyers owns the Chevrolet truck
and the bus parked in front of the house.
The affidavit states, “This Cl is providing this information out of a
community interest and frustration with the suspect’s drug dealing activities.”
The affidavit states the Cl has used drugs for more than eight years and has two
felony convictions, one gross misdemeanor conviction, and three misdemeanor
convictions.
The Cl has intimate knowledge of the drug subculture including
drug use and distribution. The CI has demonstrated his/her
knowledge of controlled substances, specifically Methamphetamine
by detailing his/her own involvement (8 plus years) with controlled
substance.
On May 23, a Clark County district court judge found probable cause to
issue a warrant to search Meyers’ residence for evidence of the crime of
possession of a controlled substance with intent to deliver.
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No. 77749-1-1/5
On May 28, the East Precinct Neighborhood Response Team executed
the search warrant. Before executing the search warrant, the police detained
Meyers. Meyers waived his Miranda3 rights. Meyers said he used cocaine and
sold methamphetamine to supplement his income. Meyers admitted he
“obtain[edj” a quarter pound of methamphetamine approximately every three
weeks. Meyers said there would be one to two ounces of methamphetamine and
possibly some cocaine inside a black safe on his bed. The police found a large
quantity of methamphetamine in small plastic bags, a small amount of cocaine, a
small amount of crack cocaine, and OxyContin in the black safe and a digital
scale and cash nearby. The police also found methamphetamine in a concealed
compartment in the master bedroom bathroom closet.
The State charged Meyers with possession of a controlled substance with
intent to deliver methamphetamine and unlawful possession of cocaine.
Meyers filed a motion to suppress the statements he made to the police
and several motions to suppress the evidence seized from his house.
The court held a hearing on the CrR 3.5 and CrR 3.6 motions on January
14 and April 24, 2015. Meyers asserted the search warrant was overbroad.
Meyers challenged the controlled buy and argued the affidavit did not support
finding the Cl reliable. Meyers argued the police did not conduct an adequate
search of the informant. Meyers argued the search warrant was invalid because
Detective Jennings did not disclose material information.
~ Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
5
No. 77749-1-116
At the hearing on January 14, the State identified the Cl as Adrienne
Woods and provided the informant file to the defense. The court admitted the
informant file into evidence as an exhibit. A number of witnesses testified at the
hearing, including DOC Officer Campbell, Detective Jennings, and Meyers.
On August 4, 2015, the court entered findings of fact and conclusions of
law on the CrR 3.5 and CrR 3.6 motions. The court found Meyers knowingly,
intelligently, and voluntarily waived his Miranda rights and his statements were
admissible. The court denied the CrR 3.6 motion to suppress the evidence
seized by the police. The court entered a seven-page decision on the CrR 3.6
motion.
Two months after entry of the CrR 3.6 findings of fact and conclusions of
law, Meyers filed a “Motion to Reopen Evidence in Suppression Hearing Based
upon Invalid Search Warrant[,J Unlawful Traffic Stop[,] Unlawful Arrest[,] Unlawful
Search of Person[,] Unlawful Search of Vehicle and Motion for Ruling on
Lawfulness of Seizure of Money.” The court granted the motion to rule on the
legality of seizing money from Meyers when he was arrested. The court ruled, “I
cannot find that there’s a sufficient nexus, and I am going to suppress the money
seized from his wallet.” The court denied the motion to reopen the evidentiary
hearing.
Meyers stipulated to a bench trial. The court found that “[o]n May 28,
2014,” Meyers “knowingly and unlawfully possessed methamphetamine. . . with
the intent to deliver the methamphetamine to another within 1000 feet of a school
bus stop” and “knowingly and unlawfully possessed cocaine.”
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No. 77749-1 -117
ANALYSIS
Meyers seeks reversal of the convictions. Meyers asserts the court erred
in denying his motion to suppress the evidence the police seized from his house.
Meyers asserts the affidavit in support of the search warrant does not establish
probable cause. Meyers contends the affidavit does not establish that Woods is
reliable and absent the material misrepresentations and omissions, the affidavit
does not support probable cause to issue the warrant.
The Fourth Amendment to the United States Constitution provides, “[Nb
warrants shall issue, but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched, and the persons or things to
be seized.” Article I, section 7 of the Washington Constitution provides that “[n]o
person shall be disturbed in his private affairs, or his home invaded, without
authority of law.”
A search warrant may issue only on a determination of probable cause.
State v. Jackson, 150 Wash. 2d 251, 264, 76 P.3d 217 (2003). Probable cause
exists when the affidavit in support of the search 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 may be found
at a certain location.” Jackson, 150 Wash. 2d at 264.
Veracity of the Informant
Meyers contends the affidavit does not establish probable cause based on
the information from Woods. Washington courts use the two-prong test in
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No. 77749-1 -1/8
Aguilar v. Texas, 378 U.S. 108, 84 5. Ct. 1509, 12 L. Ed. 2d 723 (1964),~ and
Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969),~
to evaluate the existence of probable cause based on information from a
confidential informant. State v. Jackson, 102 Wash. 2d 432, 435-43, 688 P.2d 136
(1984). The two-prong test addresses the informant’s (1) “basis of knowledge”
and (2) “veracity.” State v. Vickers, 148 Wash. 2d 91, 112, 59 P.3d 58(2002).
[T]o create probable cause for a search warrant to issue: (1) the
officer’s affidavit must set forth some of the underlying
circumstances from which the informant drew his conclusion so that
a magistrate can independently evaluate the reliability of the
manner in which the informant acquired his information; and (2) the
affidavit must set forth some of the underlying circumstances from
which the officer concluded the informant was credible or his
information reliable.
Jackson, 102 Wash. 2d at 435.
The affidavit of Detective Jennings sets forth facts and circumstances that
allowed the magistrate to independently evaluate reliability and showed the
information Woods provided was reliable. The affidavit states Woods admitted
she used drugs and purchased methamphetamine from Meyers more than 50
times in the previous nine months. Where a person admits self-incriminating
activity to the police, we presume the statement is true. State v. Chenoweth, 160
Wash. 2d 454, 483, 158 P.3d 595 (2007) (“Statements against penal interest are
intrinsically reliable because a person is unlikely to make a self-incriminating
admission unless it is true.”).
4Abroqated by Illinoisv. Gates, 462 U.S. 213, 103 S. Ct. 2317,76 L. Ed. 2d 527 (1983).
~ Abrogated by Gates, 462 U.S. 213.
8
No. 77749-1 -119
The affidavit states Woods identified the specific location of the
methamphetamine in Meyers’ locked bedroom safe and confirmed additional
methamphetamine, a digital scale, packaging material, and a drug “snort” plate
were present in the residence. See State v. Casto, 39 Wash. App. 229, 234, 692
P.2d 890 (1984) (Where the informant”’goes in empty and comes out full,’ his
assertion that drugs were available is proven, and his reliability confirmed.”
Probable cause may exist where the informant “can also assert that more drugs
are present, or where their presence can be presumed.”).
The affidavit states Woods also provided accurate information about
Meyers’ girlfriend Virginia and the vehicles Meyers owned.
The Cl stated [Meyers] lives at the residence with his girlfriend,
“Virginia”. The CI stated [Meyers] owns a “lowered” white Chevy
truck parked in the driveway and a large black tour style bus,
parked on the street in front of the residence. I later drove by the
residence and obtained the license plate of the white Chevy truck
parked in the driveway: Washington “B62684K” and the black tour
style bus parked on the street: “ALJ0759”.
Detective Jennings states, “[T]hese vehicles are both registered to Troy Darrin
Meyers. I also found police contacts regarding the Chevy truck and discovered
the name Virginia Wall.”
The affidavit set forth independent and corroborated facts to allow the
magistrate to independently evaluate the reliability of Woods and the
circumstances to conclude Woods and the information were credible.
As Meyers concedes, a properly executed controlled buy can establish
both the basis of the knowledge prong and the veracity prong. Casto, 39 Wn.
App. at 234. The affidavit supports finding a properly executed controlled buy.
9
No. 77749-1-1/10
Meyers challenges the finding that police “kept Woods under constant
visual surveillance” as she approached and then left Meyers’ house.
We determine whether substantial evidence supports the trial court’s
findings of fact and whether those findings support the conclusions of law. State
v. Garvin, 166 Wash. 2d 242, 249, 207 P.3d 1266 (2009). Substantial evidence is
evidence sufficient to persuade a fair-minded, rational person of the truth of the
finding. Statev. Levy, 156 Wash. 2d 709, 733, 132 P.3d 1076 (2006).
Unchallenged findings are verities on appeal. State v. Hill, 123 Wash. 2d 641, 644,
870 P.2d 313 (1994). We review conclusions of law pertaining to the
suppression of evidence de novo. Levy, 156 Wash. 2d at 733.
The court found the police and Woods were in contact throughout the
controlled buy.
Detective Jennings and other officers kept Woods under constant
visual surveillance as she approached and departed Meyers’
residence. Woods entered Meyers[’] residence and stayed inside
approximately 10 minutes. Detective Jennings received multiple
text messages from Woods while she was inside. The officers
maintained visual surveillance of the residence and Woods as she
exited and returned to the vehicle. Woods turned a plastic bag of
methamphetamine to the officers and she was searched by
Detective Gabriel who told Detective Jennings she located no
drugs, cash, or weapons on Woods’ person.[6]
Substantial evidence supports the challenged findings. Detective
Jennings and two other officers participated in the controlled buy. Detective
Jennings stated he parked about two blocks away from the house. Detective
Jennings testified he did not see Woods the entire time but he was in contact
with the other officers by radio to ensure “[s]he was observed the entire time.”
6 Emphasis added.
10
No. 77749-I-I/il
While Woods was inside the house for approximately 10 minutes, she sent text
messages to Detective Jennings. After she left Meyers’ house, she walked down
the street to the previously agreed upon meeting point. Detective Jennings
testified the other officers observed Woods after she left the house until he met
Woods at the meeting point.
Material Misrepresentations and Omissions
Meyers challenges the court’s finding that omissions in the affidavit were
not material. Material falsehoods that are intentionally included in the affidavit or
with reckless disregard for the truth, or deliberate or reckless omissions of
material information from the warrant may invalidate the search warrant. State v.
Ollivier, 178 Wash. 2d 813, 847, 312 P.3d 1 (2013). In Chenoweth, the Washington
Supreme Court held that under article I, section 7, only material falsehoods or
omissions made “recklessly or intentionally” invalidate a warrant. Chenoweth,
160 Wash. 2d at 478-79.
A misstatement or omission must be both (1) reckless or intentional and
(2) material. State v. Gentry, 125 Wash. 2d 570, 604, 888 P.2d 1105 (1995).
Negligence or innocent mistakes are insufficient to invalidate the warrant. State
v. Clark, 143 Wash. 2d 731, 751, 24 P.3d 1006 (2001). Recklessness is shown
where the warrant affiant entertained “‘serious doubts’ “as to the truth of facts or
statements made in the affidavit. Clark, 143 Wash. 2d at 751~ (quoting State v.
O’Connor, 39 Wash. App. 113, 117, 692 P.2d 208 (1984)). “Such ‘serious doubts’
are ‘shown by (1) actual deliberation on the part of the affiant, or (2) the
~ Internal quotation marks omitted.
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No. 77749-1-1/12
existence of obvious reasons to doubt the veracity of the informant or the
accuracy of his reports.’” Clark, 143 Wash. 2d at 751 (quoting O’Connor, 39 Wn.
App. at 117).
If the defendant establishes material misrepresentation or omissions,
“then the material misrepresentation must be stricken or the omitted material
must be included and the sufficiency of the affidavit then assessed as so
modified.” Ollivier, 178 Wash. 2d at 847. If at that point the affidavit fails to support
a finding of probable cause, “the warrant will be held void and evidence obtained
when the warrant was executed must be suppressed.” Ollivier, 178 Wash. 2d at
847. “The determination whether the qualifying information amounts to probable
cause is a legal question that is reviewed de novo.” Ollivier, 178 Wash. 2d at 848.
Meyers challenges Detective Jennings statement that before the
controlled buy, “the Cl was searched. There were no drugs, money and/or
contraband located.” Meyers asserts the statement is a material
misrepresentation or omission because Detective Jennings did not state he was
not personally present during the search. The court found:
DETECTIVE JENNINGS NOT PRESENT FOR SEARCH OF Cl
Detective Jennings had personal knowledge that the Cl was
searched. The court finds that any omission as to whether
Detective Jennings was personally present during the search is not
material.
Substantial evidence supports the finding that “any omission as to whether
Detective Jennings was personally present during the search is not material.”
The record establishes Detective Jennings directed and had personal knowledge
of the search. Detective Jennings testified that on the day of the controlled buy,
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No. 77749-1-1/13
a search of Woods “was conducted” at the precinct by Detective Julie Gabriel.
Detective Jennings stated, “When that search was completed, I was informed
Ms. Woods had no drugs on her, no money, no weapons.” After the controlled
buy, Detective Jennings drove Woods back to the precinct and Detective Gabriel
searched Woods again and found “nothing.” The unchallenged findings state:
Detective Jennings testified that Detective Julie Gabriel
searched the informant, Adrienne Woods before and after the
controlled buy that formed the basis for probable cause to arrest
Meyers and that Gabriel indicated to him that Woods had no drugs,
cash or weapons on her person.[8]
Meyers argues the court erred in finding the failure to include information
about Meyers’ “eviction” of Woods from his house and the payment to Woods of
$100 on May29 were not material and intentional omissions of fact. The findings
state:
A. CI’S EVICTION FROM MEYERS’ RESIDENCE
Detective Jennings testified that he knew Woods had been
kicked out of the Meyers residence but did not think there was any
animosity between Woods and Meyers. The court finds this
omission is not material or intentional.
B. CI PAID FOR HER SERVICES
The evidence in the record shows that Detective Jennings
paid Woods $100 on May 29, 2014, well after the search warrant
~ We also note the court rejected the argument that Woods “hid methamphetamine in her
vagina” as not credible. The unchallenged findings state:
Meyers argues that law enforcement failed to conduct a sufficient search
of the informant. He supplies no authority for the contention that searches prior
to a controlled buy should include a search of the genital area and of the vagina
or other body cavities.
To follow Meyers’ argument to its logical conclusion, the court must
believe that Woods hid methamphetamine in her vagina and retrieved the
methamphetamine from her vagina inside Meyers’ residence or after exiting,
while at the same time sending multiple texts to Detective Jennings. She would
have to somehow have known the amount of methamphetamine she was
purchasing in advance so that she could produce methamphetamine from her
vagina consistent with the amount of cash Detective Jennings supplied to her
and she would have to dispose of the cash provided for the purchase.
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No. 77749-1-1114
was served on May 28, 2014. (Defense Exhibit 8) No evidence in
the record indicates that Woods was giving [sic] any consideration
or benefit prior to the buy, thus the payment afterwards, absent any
evidence of an agreement to pay Woods for her services does not
constitute an omission.
The testimony showed Woods and Lenhart lived at Meyers’ house for nine
months. After Meyers and Lenhart had a dispute, Lenhart and Woods moved
out. But Meyers and Woods continued to have a good relationship. Detective
Jennings testified that he knew Woods and Lenhart had been “kicked out of the
house” but said, “There was no indication of animosity. . . . [T]here was no ill will
that I was told about between [Woods] and Mr. Meyers.” The unchallenged
findings state, “Detective Jennings . . . knew that Woods had been kicked out of
Meyers’ residence, but did not believe there was any animosity between Woods
and Meyers.”
There is no dispute that Detective Jennings “paid Woods $100 on May 29,
2014.” The record supports the finding that there was no evidence to indicate
that “Woods was giv[enj any consideration or benefit prior to the buy.”
Even if we assume failure to include information about the “eviction” and
payment are material omissions, the affidavit supports probable cause to issue
the search warrant. To establish probable cause, the facts need only show “the
probability of criminal activity, not a prima facie showing of it.” State v. Maddox,
152 Wash. 2d 499, 505, 98 P.3d 1199 (2004).
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
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No. 77749-1-1/15
and that evidence of the crime can be found at the place to be
searched.
Statev. Them, 138 Wash. 2d 133, 140, 977 P.2d 582 (1999).
Meyers also contends the court erred by failing to enter a finding on the
omission of the Oregon criminal convictions in the affidavit in support of the
search warrant. The record establishes Meyers did not present evidence about
the Oregon criminal convictions during the CrR 3.6 hearing. For the first time in
the motion to reopen the CrR 3.6 suppression hearing, Meyers argued a criminal
history report showed that in addition to the convictions in the affidavit, Woods
had Oregon convictions. The court responded, “I actually looked up her criminal
history, so I’m familiar with it.”
The court did not abuse its discretion in declining to reopen the
suppression hearing or err in denying the motion to suppress. State v. Luvene,
127 Wash. 2d 690, 711, 903 P.2d 960 (1995)
Legal Financial Obligations
Meyers contends the court erred by imposing legal financial obligations
(LFO5) without considering his ability to pay. The court imposed the $500 victim
assessment fee, a $2,000 drug enforcement fund fee, the $100 DNA9 fee, the
$200 criminal filing fee, and a $100 crime laboratory fee.
In State v. Blazina, 182 Wash. 2d 827, 837-38, 344 P.3d 680 (2015), the
Washington Supreme Court held RCW 10.01.160(3) mandates the sentencing
court to engage in an individualized inquiry into the defendant’s present and
future ability to pay discretionary LFOs.
Deoxyribonucleic acid.
15
No. 77749-1-1116
The court did not err by imposing the mandatory DNA, victim assessment,
and criminal filing fees. State v. Shelton, 194 Wash. App. 660, 673-74, 378 P.3d
230 (2016), review denied, 187 Wash. 2d 1002, 386 P.3d 1088 (2017); State V.
Gonzales, 198 Wash. App. 151, 154-55, 392 P.3d 1158, review denied, 188 Wash. 2d
1022, 398 P.3d 1140 (2017).
But the court erred by imposing the $2,000 drug enforcement fund fee
without engaging in an inquiry about Meyers’ present and future ability to pay.
The conclusory statement that “the defendant is presently indigent but is
anticipated to be able to pay financial obligations in the future” does not meet the
mandate to engage in an individualized inquiry about the present and future
ability to pay. Blazina, 182 Wash. 2d at 837-38.
RCW 69.50.430(2) mandates a $2,000 fine for an adult offender convicted
of a second or subsequent violation of specified provisions of the Uniform
Controlled Substances Act, chapter 69.50 RCW, and “[u]nless the court finds the
adult offender to be indigent, this additional fine may not be suspended or
deferred by the court.”1°
RCW 43.43.690(1) addresses imposition of the laboratory fee. RCW
43.43.690(1) states:
When an adult offender has been adjudged guilty of violating any
criminal statute of this state and a crime laboratory analysis was
performed by a state crime laboratory, in addition to any other
disposition, penalty, or fine imposed, the court shall levy a crime
laboratory analysis fee of one hundred dollars for each offense for
which the person was convicted.
But RCW 43.43.690(1) expressly states, “Upon a verified petition by the person
10 Emphasis added.
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No. 77749-1 -1117
assessed the fee, the court may suspend payment of all or part of the fee if it
finds that the person does not have the ability to pay the fee.”11
On remand, the court shall engage in an inquiry on the present and future
ability of Meyers to pay the $2,000 drug enforcement fund fee. If Meyers submits
a verified petition, the court shall also determine whether to suspend all or part of
the $100 crime laboratory fee.
Statement of Additional Grounds
Meyers raises a number of issues in his statement of additional grounds.12
Contrary to his assertion, the record shows the State provided a certified copy of
the affidavit in support of the search warrant and we granted his motion to
supplement the record with the hospital records.
Meyers argues the statements he made to the police were not voluntary.
The unchallenged findings do not support his argument. State v. Gasteazoro
Paniaqua, 173Wn. App. 751, 755, 294 P.3d 857 (2013) (unchallenged findings
of fact following a CrR 3.5 hearing are verities on appeal). Citing Bailey v. United
States, 568 U.S. 186, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (2013), Meyers argues
he was unlawfully detained while the police executed the search warrant. Unlike
in the case he cites, there was probable cause to arrest Meyers. See Bailey, 568
U.S. at 200-01.
Meyers claims the judge was biased. Meyers cannot show that a
reasonable person who knows and understands all the relevant facts would
11 Emphasis added.
12The other arguments Meyers makes are adequately addressed in the brief on appeal.
RAP 10.10(a).
17
No. 77749-1-1/18
conclude he did not receive a fair, impartial, and neutral hearing. State v.
Gamble, 168 Wash. 2d 161, 187, 255 P.3d 973 (2010).
Meyers contends the convictions constitute the same criminal conduct.
We review the determination of what constitutes the same criminal conduct for
abuse of discretion. State v. Johnson, 180 Wash. App. 92, 100, 320 P.3d 197
(2014). Possession of methamphetamine with intent to deliver and unlawful
possession of cocaine do not constitute the same criminal conduct. State v.
Hernandez, 95 Wash. App. 480, 484-85, 976 P.2d 165 (1999). Meyers asserts his
prior felony convictions wash out because his 2005 driving with a suspended
license conviction is unconstitutional. The record shows Meyers did not meet his
burden of establishing the prior conviction is unconstitutional. In re Pers.
Restraint of Williams, 111 Wash. 2d 353, 368, 759 P.2d 436 (1988).
We affirm the convictions but remand for an individualized inquiry into the
ability of Meyers to pay the $2,000 drug enforcement fund fee and if he submits a
verified petition, the $100 crime laboratory fee.
WE CONCUR:
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