State Of Washington v. Shawn Green ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 72863-6-1 g
Appellant,
DIVISION ONE h
v.
UNPUBLISHED OPINION ^>
SHAWN CORY GREEN,
Respondent. FILED: January 19, 2016 CD
CD
Trickey, J. — The State appeals the trial court's order suppressing
evidence and dismissing a charge of possession with intent to manufacture or
deliver a controlled substance, methamphetamine, against Shawn Green. It
claims that the trial court erred in concluding that there was not probable cause
to issue the search warrant. We disagree and affirm.
FACTS
On August 1, 2014, the Skagit County District Court issued a search
warrant for a residence at 219 Laurel Drive in Sedro-Woolley for violations of the
Uniform Controlled Substances Act, chapter 69.50 RCW. The warrant
authorized the search and seizure of controlled substances and drug
paraphernalia, among other items. The warrant was based on the written
affidavit of a sergeant with the city of Sedro-Woolley Police Department. We
describe the contents of this affidavit in greater detail later in this opinion.
The police executed the warrant on August 5, 2014. Inside the house
were three individuals, including Green, who was in the southwest bedroom. The
officers recognized Green from previous law enforcement contacts, and they
arrested him. Thereafter, the officers searched the house. They seized several
No. 72863-6-1 / 2
items from the southwest bedroom, including cell phones, a Washington State
Department of Corrections identification card, a "white crystal like substance,"
digital scales, and packaging materials.1
Based on this evidence, the State charged Green with one count of
possession with intent to manufacture or deliver a controlled substance—
methamphetamine. The charge included a school zone enhancement allegation.
Green moved to suppress the evidence on several bases. He argued that
the search warrant affidavit did not establish probable cause to search the
residence. He also argued that the search warrant was overbroad and vague.
Finally, he argued that several items seized were not supported by probable
cause or were not authorized by the warrant.
After a hearing, the trial court concluded that there was not probable
cause to believe that there would be drugs in the residence and, therefore, there
was not probable cause to issue the search warrant. It entered an order
suppressing any evidence located in the residence and dismissing the charge
against Green.
The State appeals.
ANALYSIS
The State argues that the trial court erred when it concluded that there
was not probable cause to issue the search warrant. We disagree.
"Probable cause exists if the affidavit in support of the warrant sets forth
facts and circumstances sufficient to establish a reasonable inference that the
Clerk's Papers (CP) at 39.
No. 72863-6-1 / 3
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). Thus, 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.'" Thein. 138 Wn.2d at 140 (quoting State v.
Goble. 88 Wn. App. 503, 509, 945 P.2d 263 (1997)).
We generally review the issuance of a search warrant for abuse of
discretion. State v. Neth. 165 Wn.2d 177, 182, 196 P.3d 177 (2008). We give
great deference to the issuing magistrate's determination of probable cause.
State v. Maddox. 152 Wn.2d 499, 509, 98 P.3d 1199 (2004); State v.
Chenoweth. 160 Wn.2d 454, 477, 158 P.3d 595 (2007). Our review is limited to
the four corners of the affidavit. Neth. 165 Wn.2d at 182. We view the affidavit in
a commonsense manner rather than hypertechnically. Chenoweth, 160 Wn.2d at
477. All doubts are resolved in favor of the validity of the warrant. Maddox. 152
Wn.2d at 509. However, "[w]hile we give great deference to the magistrate, that
deference is not unlimited." State v. Lyons, 174 Wn.2d 354, 362, 275 P.3d 314(2012). "We cannot defer to the magistrate where the affidavit does not provide
a substantial basis for determining probable cause." Lyons, 174 Wn.2d at 363.
The State devotes most of its appellate briefing to arguments that the trial
court erred by applying the wrong standard of review or by failing to give proper
deference to the magistrate.2 At the suppression hearing, the trial court acts in
an "appellate-like capacity." Neth, 165 Wn.2d at 182. "Although we defer to the
2Appellant's Br. at 2-3, 7-8; Appellant's Reply Br. at 2-8.
No. 72863-6-1 / 4
magistrate's determination, the trial court's assessment of probable cause is a
legal conclusion [that] we review de novo." Neth. 165 Wn.2d at 182. Because
we review the trial court's conclusion on probable cause de novo, and will give
proper deference to the magistrate's determination, we need not address these
arguments.
Our task is to determine whether the affidavit contains specific facts to
support the magistrate's determination of probable cause. We agree with the
trial court that it does not. The affidavit fails to establish a nexus between the
items to be seized—drugs and drug paraphernalia—and the place to be
searched—219 Laurel Drive.
The affidavit states that since 2007, the Sedro-Woolley Police Department
has been receiving complaints of illegal drug activity at 219 Laurel Drive, the
residence of Kirk Peters. Police have made arrests at this residence for various
offenses, including violations of the Uniform Controlled Substances Act. The
affidavit does not provide any details about these complaints or arrests.
The affidavit also describes the activities of a criminal informant (CI). It
states that the CI told law enforcement that he or she had purchased
methamphetamine from several different people at this residence for the past two
years. It also states that the police utilized the CI to make two controlled buys of
methamphetamine at this residence in the "latter part of July 2014."3
During the first controlled buy, Callie Swartz, one of the residents of 219
Laurel Drive, called several people to have someone deliver methamphetamine
3 CP at 34.
No. 72863-6-1 / 5
to the residence. While the CI was waiting for this delivery, an individual by the
name of Brandon Frizzell arrived and offered to sell the CI methamphetamine.
Frizzell pulled a small bag "with [a] crystal like substance" from his sock, weighed
it on a portable scale, and packaged it into a smaller Ziploc bag.4 The CI
purchased .8 grams of methamphetamine from Frizzell and left.
During the second controlled buy, five people were present in the living
room when the CI arrived. The CI asked if anyone had any "clear"—a street term
used to identify methamphetamine—and one person said that he had a little in a
glass bowl pipe that he was smoking.5 No one present had any for the CI to take
with him or her. Someone at the residence called Daniel Gilbert and within 15
minutes, Gilbert arrived. Gilbert went into a bedroom with the CI, where he
weighed methamphetamine on a portable digital scale and packaged .9 grams
into a smaller bag for the CI. The CI paid Gilbert $50 and left.
Thereafter, during the week of July 28, police took the CI to 219 Laurel
Drive to conduct a third controlled buy. Six people were inside the house,
including Frizzell and Swartz. Frizzell told the CI that he did not have any
methamphetamine but that he was going to "re-up" later that night.6 "Re-up" is a
term used by dealers to indicate that they are currently out of drugs but plan to
re-stock soon.7 No one else in the house had any methamphetamine. The CI
left. In the same week, "two other attempts to buy methamphetamine from
4 CP at 34.
5 CP at 35.
6 CP at 35.
7 CP at 35.
No. 72863-6-1 / 6
Frizzell and Swartz were unsuccessful because everyone at the house was sold
out and were waiting to re-up."8
These facts do not establish probable cause to believe that drugs or drug
paraphernalia would be found in the residence. During the first two controlled
buys, persons outside the house brought controlled substances into the house.
Nothing in the affidavit indicates that either of those individuals, who were
nonresidents, kept drugs or drug paraphernalia in the house. The third, fourth,
and fifth controlled buys were all unsuccessful. No one in the house had any
methamphetamine to sell. Nothing in these encounters establishes probable
cause to believe that drugs or drug paraphernalia would be found in the
residence.
The State points to the CI's statements to law enforcement that he or she
had purchased methamphetamine from several individuals at the residence for
two years.9 But the affidavit fails to provide any details about these purchases,
such as when the purchases occurred or the identity of the seller. Further, these
alleged purchases occurred before the three unsuccessful controlled buys in July
2014. "The facts set forth in the affidavit must support the conclusion that the
evidence is probably at the premises to be searched at the time the warrant is
issued." Lyons, 174 Wn.2d at 360. The facts presented in this case do not
support the conclusion that there would be methamphetamine or drug
paraphernalia at the time the warrant was issued.
CP at 35.
' Appellant's Opening Br. at 10; Appellant's Reply Br. at 9.
No. 72863-6-1 / 7
The State asserts that "the informant was told by the occupants of the
address that they were 'sold out' and they were going to 're-up'" and that "[o]ne
occupant advised the informant he would be re-upping that night."10 The State
contends that, from this, the magistrate "could infer that the occupants had been
involved in ongoing drug activity and that the drug trafficking and drug use would
continue."11
The State is incorrect. The affidavit does not establish that occupants of
the residence told the CI that they would be re-upping. The affidavit states that
Frizzell said that he was going to "re-up."12 But nothing in the affidavit indicates
that Frizzell was an occupant of the house. The affidavit also states that the last
two attempts to buy methamphetamine were unsuccessful because "everyone at
the house was sold out and were waiting to re-up."13 But the affidavit never
established that occupants of the house were among those individuals.
The State relies on State v. Maddox. 152 Wn.2d 499, 505, 98 P.3d 1199(2004). In Maddox. an informant made a controlled buy of methamphetamine
from the defendant, Christopher Dorian Maddox, at Maddox's home. 152 Wn.2d
at 503. Thereafter, the police obtained a search warrant, which "authorized a
search for evidence of methamphetamine dealing as well as methamphetamine
itself." 152 Wn.2d at 504, 510. Before police executed the search warrant, the
informant attempted another controlled buy. During this attempted buy, Maddox
10 Appellant's Opening Br. at 10-11.
11 Appellant's Opening Br. at 11.
12 CP at 35.
13 CP at 35.
No. 72863-6-1 / 8
told the informant that he "'was out [of methamphetamine] and that he would
have some in a couple of days.'" 152 Wn.2d at 504.
On appeal, the Supreme Court acknowledged that probable cause to
search for methamphetamine was negated by Maddox's statements.
Nonetheless, it concluded that there was probable cause to search for evidence
of methamphetamine dealing. Maddox, 152 Wn.2d at 510. The court reasoned
that a reasonable person could infer from the facts and circumstances that
evidence of methamphetamine dealing remained at Maddox's home even if he
was temporarily out of the drug itself. It relied on the facts that the informant had
known Maddox for five years, had purchased methamphetamine from him for
four years, had purchased methamphetamine from Maddox at least 35 times in
various quantities up to four ounces, and had purchased methamphetamine from
Maddox at his home just three days prior to the warrant's issuance. 152 Wn.2d at
511. It also relied on a detective's testimony about the common habits of drug
dealers and on Maddox's long history as a drug dealer. 152 Wn.2d at 511-12.
This case does not present similar facts. Here, the affidavit does not
indicate that the informant ever purchased drugs from anyone who lived at 219
Laurel Drive. Nor does it establish that the occupants of the house have a long
history as drug dealers. Thus, the affidavit in this case is unlike the affidavit in
Maddox, which "provided a factual nexus between Maddox's drug dealing and
his home." 152 Wn.2d at 511-12.
8
No. 72863-6-1 / 9
Because the affidavit fails to establish a nexus between the item to be
seized and the place to be searched, probable cause did not exist to issue the
search warrant. The trial court properly granted the motion to suppress.
Given our resolution of this issue, we need not address Green's argument
that the trial court should be affirmed on the alternative ground that the warrant
was overbroad and lacked particularity.14
Affirmed.
Ji^(At>| , J"
WE CONCUR:
%£Ut4&
14
See Br. of Resp't at 13-16.