State Of Washington v. Michael Wells ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
January 26, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46818-2-II
Appellant,
v.
MICHAEL FREDERICK WELLS, UNPUBLISHED OPINION
Respondent.
JOHANSON, C.J. — The State of Washington appeals the trial court orders granting
Michael Wells’s motion to suppress the evidence obtained during the search of his vehicle and
dismissing the case for insufficient evidence. The State argues that the trial court erred by
excluding the drug dog’s alerts when determining whether probable cause supported the search
warrant and by concluding that the circumstances did not establish probable cause to issue the
search warrant. We hold that even without considering the drug dog’s alerts, the search warrant
affidavit was sufficient to establish probable cause. We also reject Wells’s argument that we
should affirm on alternative grounds because the officers unlawfully expanded the scope of the
search to allow for the drug dog’s search, and we hold that Wells’s claim that there was a material
omission in the search warrant affidavit has no merit. Accordingly, we reverse the trial court and
remand for further proceedings.
No. 46818-2-II
FACTS
I. BACKGROUND
On September 10, 2013, law enforcement officers were conducting a surveillance operation
focused on Brian Valdez after a confidential informant had informed the police that Valdez was
selling methamphetamine. While surveilling Valdez, the officers observed him park at a donut
shop. Wells then arrived and parked his vehicle next to Valdez. Valdez got into Wells’s vehicle.
After about 20 minutes, two females came out of the donut shop. Valdez returned to his vehicle,
and Wells left with one of the women.1
An officer followed Wells to a Goodwill Store. Wells and his passenger, Nora Thomas,
spent more than an hour in the store. When Wells and Thomas eventually left the store, the officer
followed them and stopped the vehicle after observing Wells’s vehicle swerving and its rear tire
hitting a curb. Upon stopping the vehicle, the officer observed that Thomas was not wearing her
seatbelt and then determined she had an outstanding warrant “stemming from a Possession of a
Controlled Substance charge.” Clerk’s Papers (CP) at 17. Thomas also had a prior conviction for
possession of a controlled substance. The officer arrested Thomas on the warrant, searched her
purse, and found what appeared to be a methamphetamine pipe and a small amount of
methamphetamine inside the purse.
Another officer observed “a small metal safe/lockbox” on the vehicle’s floor in front of the
driver’s seat and a zippered bank pouch wedged between the driver’s seat and the center console.
CP at 17. When the officers questioned Wells, he admitted there was a small amount of marijuana,
1
In the search warrant affidavit, the officers did not describe observing Valdez and Wells
exchanging any items.
2
No. 46818-2-II
about the size of a quarter, in the vehicle. The officers learned that Wells also had at least four
prior convictions for possession of controlled substances. They then requested a K-9 unit to
conduct a sniff of the vehicle.
The K-9 officer arrived with his dog Ory, who was trained prior to the effective date of
Initiative 502.2 Ory was trained to alert to “methamphetamine, crack cocaine, cocaine,
marijuana[,] and heroin,” and he was capable of detecting “minuscule amounts” of these
substances. CP at 19. Ory could not, however, communicate which substance he detected or how
much of the substance was present. Ory alerted to “the passenger side door handle, the bottom
seam of the driver’s side door near the rear of the door, and the bottom front portion of the
passenger door seam.” CP at 20.
Based on the facts described above, the officers obtained a search warrant allowing them
to search the vehicle. The officers found 1.6 grams of marijuana by the driver’s seat,
methamphetamine and heroin in the trunk, a scale, and $12,030.
II. PROCEDURE
The State charged Wells with two counts of possession of a controlled substance with intent
to deliver (methamphetamine and heroin). Wells moved to suppress the evidence found during
the vehicle search. He argued that (1) the initial stop was pretextual, (2) the officers unlawfully
exceeded the scope of the traffic stop, (3) the dog sniff could not have led to probable cause because
2
Initiative 502, effective December 6, 2012, legalized marijuana for recreational use, thus
decriminalizing the possession of small amounts of marijuana for individuals over 21 years of age.
LAWS OF 2013, ch. 3, § 20; see also RCW 69.50.4013(3). Wells could legally possess one ounce
of useable marijuana. RCW 69.50.4013(3), .360(3)(a).
3
No. 46818-2-II
Ory could have smelled the drugs found on Thomas or the legal marijuana Wells said was in the
vehicle, and (4) there were deliberate omissions in the search warrant affidavit.3
The trial court entered a written order granting the motion to suppress. In the written order
granting the motion, the trial court stated,
Ory’s positive alert when he sniffed the car does not establish probable
cause. “Generally an ‘alert’ by a trained drug dog is sufficient to establish probable
cause for the presence of a controlled substance.” State v. Jackson, 82 Wash. App.
594, 606[, 918 P.2d 945] (1996). However, “Ory was trained and certified prior to
the effective date of Initiative 502. Ory is trained in the detection of
methamphetamine, crack cocaine, cocaine, marijuana, and heroin. Ory cannot
communicate which of these substances he has detected.” Search Warrant Affidavit
at 7. Further the dog cannot determine the quantity of any controlled substance.
Thus, a positive alert does not show probable cause absent evidence to suggest the
dog alerted to something other than the marijuana in the car, or the
methamphetamine that was already found in Ms. Thomas’[s] purse. In contrast to
the nexus established in Maddox[4] by the sale of methamphetamine to a
confidential informant inside the defendant’s home, no factual information in the
affidavit shows a nexus between criminal activity and Mr. Wells’[s] vehicle. The
only criminal activity connected to the defendant was erratic driving. Without a
factual nexus, the evidence obtained pursuant to the warrant must be suppressed.
....
In this case, dog’s alert must be excluded from a review of probable cause
since, as stated above, Ory cannot communicate whether he has detected marijuana
or a different drug, and no other evidence suggests what substance he alerted to.
3
Specifically, Wells asserted that the affidavit deliberately omitted the following information,
which was present in one of the officers’ written reports:
Nora Thomas came out of the [Goodwill] store and started walking around the
parking lot. A vehicle pulled up to Nora and she got into the passenger side of the
vehicle. This vehicle was parked on the north area of the parking lot. Less than 5
minutes later Nora got out of the vehicle and went back into the store and the vehicle
left.
CP at 11 (emphasis omitted). Wells argued that this information would have shown that there was
“no nexus between the defendant and Nora Thomas’s activities in the Goodwill parking lot,” that
she was “acting independently of the defendant,” and that there was no connection between the
drugs in her purse and the vehicle. CP at 11.
4
State v. Maddox, 152 Wash. 2d 499, 505, 98 P.3d 1199 (2004).
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No. 46818-2-II
The other facts in this case do not show a nexus connecting Mr. Wells’[s] vehicle
to criminal activity.
CP at 67-69 (emphasis added).
The trial court also issued written findings of fact and conclusions of law. The written
findings of fact are described in the facts section above and were consistent with the facts stated
in the search warrant affidavit. In its written conclusions of law, the trial court stated, inter alia,
that Ory’s positive alert did not establish probable cause because he was also trained to alert to
marijuana, a legal substance, and could not have determined the quantity of marijuana and that the
suspicious activity alone does not rise to the level of probable cause. The trial court then concluded
that because the evidence was suppressed, there was insufficient evidence to go to trial and
dismissed the case for insufficient evidence.
The trial court also concluded that the stop was not pretextual. Although there was
discussion during the suppression hearing about whether the officers had lawfully expanded the
scope of the search to allow the dog sniff, the trial court did not enter any findings of fact or
conclusions of law addressing this issue. The trial court did not reach the material omission
argument.5
The State appeals.
5
Wells raised this issue in his motion to dismiss, but the trial court did not address this issue. We
address it here in the interest of judicial economy.
5
No. 46818-2-II
ANALYSIS
I. LEGAL STANDARDS
“We review de novo the trial court’s legal conclusion of whether evidence meets the
probable cause standard.” State v. Powell, 181 Wash. App. 716, 723, 326 P.3d 859 (citing State v.
Neth, 165 Wash. 2d 177, 182, 196 P.3d 658 (2008)), review denied, 181 Wash. 2d 1011 (2014).
Although we apply a de novo review standard, we also give great deference to the issuing judge’s
assessment of probable cause and resolve any doubts in favor of the search warrant’s validity.
Powell, 181 Wash. App. at 723 (citing State v. Chenoweth, 160 Wash. 2d 454, 477, 158 P.3d 595
(2007)). The issuing judge “is entitled to make reasonable inferences from the facts and
circumstances set out in the affidavit.” State v. Maddox, 152 Wash. 2d 499, 505, 98 P.3d 1199 (2004).
When reviewing the issuing judge’s decision to issue a search warrant, our review is limited to the
four corners of the affidavit. Neth, 165 Wash. 2d at 182.
A judge may issue a search warrant only if the affidavit establishes probable cause. State
v. Thein, 138 Wash. 2d 133, 140, 977 P.2d 582 (1999). To establish probable cause, the affidavit
supporting the search warrant must “set[ ] 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.” Thein, 138 Wash. 2d at 140. The affidavit
must establish “‘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 Wash. 2d at 140 (quoting
State v. Goble, 88 Wash. App. 503, 509, 945 P.2d 263 (1997)).
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No. 46818-2-II
II. PROBABLE CAUSE
The State argues that the trial court erred in concluding that the search warrant affidavit
was not sufficient to establish probable cause.6 Even excluding the dog-sniff evidence,7 we agree.
The affidavit showed that (1) Wells had had recent contact with an individual suspected of
selling methamphetamine, although the search warrant affidavit did not suggest that the
surveillance team observed any exchange of items between Wells and Valdez, (2) Wells admitted
that there was a small amount of marijuana in the vehicle, (3) Wells had several prior convictions
for unlawful possession of a controlled substance, (4) Thomas’s purse contained a small amount
of methamphetamine and a methamphetamine pipe, (5) Thomas was arrested on an outstanding
warrant related to a drug offense, (6) Thomas had a prior conviction for unlawful possession of a
controlled substance, and (7) the officers observed a small metal safe on the floor in front of the
driver’s seat and a zippered bank pouch between the driver’s seat and the center console.
6
Specifically, the State argues that the trial court (1) failed to accord the issuing magistrate the
proper level of deference, (2) reviewed the search warrant in a hyper-technical manner by
reviewing whether each individual fact in isolation was sufficient to establish probable cause rather
than considering the affidavit as a whole, and (3) improperly resolved doubts concerning the
existence of probable cause against the search warrant’s validity. But because we review the trial
court’s assessment of probable cause to issue a search warrant issue de novo, we do not address
these specific allegations. Neth, 165 Wash. 2d at 182.
7
Because we hold that the search warrant affidavit was adequate without considering the dog sniff
and because we review the trial court’s assessment of probable cause de novo, we need not address
whether the trial court should have considered the dog-sniff evidence. Furthermore, although
Wells asserts that the trial court refused to consider the dog sniff, the trial court’s conclusion of
law 4 and its statements in its order granting the motion to suppress demonstrate that the trial court
considered this information—it merely determined that it did not establish probable cause. See
CP at 68 (“[A] positive alert does not show probable cause absent evidence to suggest the dog
alerted to something other than the marijuana in the car, or the methamphetamine that was already
found in Ms. Thomas’[s] purse.”); CP at 74 (“K-9 dog Ory’s positive alert when he sniffed the
vehicle does not establish probable cause.).
7
No. 46818-2-II
The existence of the prior convictions for unlawful possession of a controlled substance,
Wells’s admitted possession of marijuana, and Thomas’s possession of methamphetamine and a
methamphetamine pipe demonstrated that Wells and Thomas were likely drug users. State v.
Vickers, 148 Wash. 2d 91, 111 n.51, 59 P.3d 58 (2002) (“Prior convictions may be used as one factor
when determining probable cause. See State v. Clark, 143 Wash. 2d 731, 749, 24 P.3d 1006 (2001))
(emphasis added). But the fact that Wells and Thomas were likely drug users does not, alone,
establish a nexus between the item to be seized (controlled substances) and the place to be searched
(Wells’s vehicle).
However, several factors supported a finding of probable cause to believe that Wells’s
vehicle contained illegal controlled substances: observing Wells with a suspected drug dealer,
Wells’s admission that there was marijuana in his vehicle, the small metal safe on the floor by the
driver’s seat, the zippered bank pouch near the driver’s seat, and Thomas’s possession of drugs
while inside the vehicle. Although no single factor is sufficient, when we consider the factors as
a whole, we are convinced probable cause exists. Given our deferential treatment of the issuing
magistrate’s decision and that we resolve any doubts in favor of the search warrant’s validity,8 we
hold that these factors are sufficient to establish a reasonable inference that Wells or Thomas were
probably involved in criminal activity and that evidence of this activity could be found in the
vehicle. Accordingly, the trial court erred in concluding that the search warrant affidavit did not
establish probable cause.
8
Powell, 181 Wash. App. at 723.
8
No. 46818-2-II
III. WELLS’S ALTERNATIVE GROUNDS ARGUMENT
Wells argues that we should affirm the trial court on alternative grounds. Specifically, he
argues that the detention of the vehicle to allow for the dog sniff violated his constitutional rights
because it exceeded the time needed to issue the infraction. Because we hold that there was
sufficient evidence to establish probable cause to search the vehicle without reference to the dog
sniff, this argument does not show that the magistrate erred in issuing the warrant.
IV. DELIBERATE OMISSION ISSUE
Finally, even though the trial court did not reach Wells’s deliberate omission argument, we
do so here in the interest of judicial economy. Even presuming that Wells showed that the officers
deliberately or recklessly omitted the information about Thomas engaging in suspicious behavior
outside the Goodwill store while Wells remained in the store, this argument has no merit.
If the issue is a deliberate or reckless omission in a search warrant affidavit, “those omitted
matters are considered as part of the affidavit.” State v. Garrison, 118 Wash. 2d 870, 873, 827 P.2d
1388 (1992). “If the affidavit with the matter . . . inserted . . . remains sufficient to support a
finding of probable cause, the suppression motion fails.” Garrison, 118 Wash. 2d at 873.
Here, although Thomas’s behavior outside the Goodwill store did not directly implicate
Wells, it did provide additional evidence that Thomas may have been engaged in drug-related
activities during the time she was with Wells, which increases the probability that there would be
drug evidence in Wells’s vehicle after they left the Goodwill. Because this additional fact would
increase, rather than decrease, the likelihood that evidence of a crime would be found in Wells’s
vehicle, Wells’s omission argument has no merit.
9
No. 46818-2-II
Accordingly, we reverse the trial court’s suppression order and remand for further
proceedings.
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 in accordance with RCW 2.06.040,
it is so ordered.
JOHANSON, C.J.
We concur:
WORSWICK, J.
MAXA, J.
10