127 Wash. App. 444 | Wash. Ct. App. | 2005
FACTS
¶2 In February 2003, Nick Parker told Lynden Police Officer Michelle Boyd that Randy Chenoweth was operating a methamphetamine laboratory at 1200 Aaron Drive in Lynden, where Chenoweth had Parker’s car. Boyd passed the information to Whatcom Interagency Narcotic (WIN) Detective Ryan Kang of the Blaine Police Department. Parker then told King that he had been to the residence, described equipment consistent with the manufacture of methamphetamine, and stated that both Chenoweth and Barbara Wood participated in the manufacture of methamphetamine. Parker also told King that he wanted his car back.
¶4 Following execution of the search warrant, Prosecutor Kaholokula and Lynden Police Detective Lee Beld sought and obtained a second warrant for a motor home outside the residence. During that transaction, the deputy prosecutor remarked that she had “confirmed Nicholas Parker’s criminal history from what I recalled yesterday.” And she asked the Commissioner whether the first warrant would have issued if she had not verified what she recalled about Parker’s criminal history the previous day. The Commissioner responded that the warrant would have issued without the prosecutor’s statement because Parker had already told Detective King about his criminal conviction and since there was no reason for him to have said that unless it were true, the statement was somewhat self-authenticating.
¶5 Based on the evidence found in the searches, the State charged Chenoweth and Wood each with one count of possession of precursor materials with intent to manufacture methamphetamine, one count of manufacturing methamphetamine, and one count of possession of methamphetamine. The State also charged Chenoweth with an additional count of possession of methamphetamine based on a white powder that he dropped during his arrest.
¶6 Chenoweth and Wood moved to suppress all evidence seized from the property, alleging that Kaholokula willfully and recklessly omitted material facts regarding Parker’s history from discussions with the Commissioner when seeking the search warrants and requested a hearing
¶7 After several hearings to consider the Franks issues, the trial court stated that the information regarding Parker’s extensive criminal history, the Bellingham Police Department’s decision not to use Parker based on concerns about his reliability, and Kaholokula’s suspicion that Parker had suborned peijury, would have prevented a finding of probable cause to issue the warrant if it had been intentionally or recklessly, rather than negligently, omitted. Thus, the omissions were material. But because the trial court found that King and Beld did not know about, and Kaholokula did not remember, Parker’s history or relationship with the Bellingham Police Department, none of the omissions was intentional or reckless. The evidence found in the execution of the warrant was ruled admissible under Franks, and the case proceeded to trial.
¶8 A jury found Chenoweth and Wood guilty as charged. On appeal, Chenoweth attacks the warrant, challenging the trial court’s findings (1) that Parker’s previous infor
ANALYSIS
Informant Reliability
¶9 Probable cause for a search warrant may be based on information provided by an informant if the supporting affidavit contains sufficient underlying facts from which a neutral and detached magistrate could conclude that both the information and the informant are reliable. State v. Northness, 20 Wn. App. 551, 554, 582 P.2d 546 (1978) (citing 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)). A magistrate’s determination of probable cause will not be reversed absent an abuse of discretion. State v. Clark, 143 Wn.2d 731, 748, 24 P.3d 1006 (2001). When a “criminal” or professional informant provides the information supporting the warrant, evidence of his trustworthiness must be included in the warrant to establish his reliability, but “[w]hen the informant is an ordinary citizen, as opposed to the criminal or professional informant, and his identity is revealed to the issuing magistrate, intrinsic indicia of the
¶10 Chenoweth first contends that the warrant affidavit was inadequate on its face because it did not contain sufficient facts to indicate Parker’s reliability. In particular, Chenoweth argues that although Parker’s identity was revealed to the Commissioner, when it was also revealed that he had been convicted of a drug crime, the Commissioner erred by considering Parker to be a citizen informant such that intrinsic indicia of his reliability could be found in “his detailed description of the underlying circumstances of the crime observed or about which he had knowledge.” Northness, 20 Wn. App. at 557. Chenoweth contends that State v. Bittner, 66 Wn. App. 541, 832 P.2d 529 (1992) “stands for the proposition that the critical distinction of being a ‘concerned citizen informant,’ and the concomitant cloaking of the informant in the presumption of reliability, is not warranted where the true facts reveal even mere suspected, unconvicted criminal conduct.” Br. of Appellant Chenoweth at 43.
¶11 In Bittner, an officer’s affidavit stated that a “concerned citizen” who was “NOT a regular police informant, or a paid police informant, and ha[d] not previously contacted this office, or any other police entity” reported a drug transaction and wished to remain anonymous for fear of “swift and sure retribution”; that the officer had “conducted a thorough criminal records check on the concerned citizen with negative results”; and that the informant was a long-standing member of the community employed by a major corporation. 66 Wn. App. at 542. According to the affidavit, the informant testified that his friend purchased drugs at a particular residence within the past week and that he accompanied the officer to the suspect’s residence and identified the residence and the suspect’s car. Id. Following the execution of the warrant, the informant testified that he cooperated only because the officer threat
¶12 On appeal, this court reversed the defendants’judgments and sentences because the facts in the affidavit were insufficient to support a finding of probable cause where the informant merely testified to a single unobserved transaction by an unidentified friend, and no corroborating evidence was provided regarding whether the defendant was a known drug dealer or whether the friend was reliable. Id. at 547. The court then stated:
In light of our decision, it is not necessary to reach the issue of whether the affidavit in support of the search warrant contained reckless or intentional misstatements or omissions of material fact which violate the principles of Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). Nonetheless, we note with disapproval the type of affidavit produced here. The picture of the informant created by the affidavit for a search warrant was not in accord with the true facts. Although we accept the trial court’s credibility determinations which resolved most of the Franks issues, it was error not to have included in the affidavit that the “concerned citizen” had previously contacted the sheriff’s office because he had been investigated for a crime. This type of information could*454 influence a magistrate’s decision in assessing the reliability of an informant’s tip.
Id. at 548.
¶13 Contrary to Chenoweth’s claim, Bittner does not establish a rule that an informant with a criminal conviction or suspected of criminal activity cannot be considered a citizen informant, rather than a criminal or professional informant, for the purposes of evaluating reliability. In fact, as stated in Northness, “the fact that an identified eyewitness informant may also be under suspicion — in this case because of her initial contact — has been held not to vitiate the inference of reliability raised by the detailed nature of the information and the disclosure of the informant’s identity.” 20 Wn. App. at 558 (citing United States v. Banks, 539 F.2d 14, 17 (9th Cir. 1976) (fact that named, untested, nonprofessional informer was under investigation based on suspicion of being involved in drug traffic was immaterial to question of reliability of informant where he voluntarily provided detailed eyewitness report of defendant’s drug dealing); United States v. Darensbourg, 520 F.2d 985, 988 (5th Cir. 1975) (affidavit providing name and address of 15-year-old informant and detailed information about robbery evidence sufficient to demonstrate reliability); United States v. Rueda, 549 F.2d 865, 869 (2d Cir. 1977) (no need to show past reliability where informant is in fact a participant in the very crime at issue)).
¶14 Moreover, Chenoweth fails to demonstrate that other indicia of reliability here could not support a finding of probable cause. It is undisputed that Detective King informed the Commissioner that the informant’s name was Nicholas Parker; that Parker had a prior conviction for delivery and possession of cocaine; that Parker went to the Chenoweth residence to get his car and was told to leave; that Parker had observed flasks, filters, chemicals, and equipment consistent with methamphetamine manufacture and that Chenoweth told Parker that he was manufacturing methamphetamine; that Parker admitted to assisting Chenoweth and Wood with methamphetamine
¶15 Because Detective King provided Parker’s name to the Commissioner, because Parker made statements against his penal interest, and because the amount and kind of detail provided support an inference of reliability, the Commissioner did not abuse her discretion in finding that probable cause supported the search warrant. See Northness, 20 Wn. App at 556-57 (where informant is named to magistrate, rule requiring independent evidence of credibility may be relaxed); State v. Lair, 95 Wn.2d 706, 711, 630 P.2d 427 (1981) (because informant who admits criminal activity to police officer faces possible prosecution, statements raising such a possibility may support an inference of reliability as such statements are “not often made lightly’); State v. O’Connor, 39 Wn. App. 113, 122-23, 692 P.2d 208 (1984) (amount and detail of information provided enhanced credibility of named informant who was under arrest at the time of the statement and made statements against penal interest). We reject Chenoweth’s assertion that Parker’s tip must be subjected to the heightened scrutiny generally reserved for criminal unnamed informants, as well as his intimation that all other inferences are inapplicable. Reviewing courts are required to give great weight to a magistrate’s determination related to probable cause and all doubts are to be resolved in favor of the warrant. O’Connor, 39 Wn. App. at 123.
Material Omissions
¶16 Under the Fourth Amendment, an omission or false statement made in an affidavit in support of a search warrant may invalidate the warrant if it was (1) material and (2) made intentionally or with reckless disregard for the truth. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978); State v.
¶17 Here, the parties do not dispute the trial court’s finding that information not provided to the Commissioner but later revealed at various Franks hearings was material. In particular, the police and deputy prosecutor did not tell the Commissioner about Parker’s past work as a paid informant to the Bellingham Police Department, about Parker’s full criminal history, about compensation paid to Parker by WIN, and about the prosecutor’s prior dealings with Parker, including her suspicion that he had suborned perjury. The question is whether the trial court erred in concluding that these omissions were not intentional or reckless. Chenoweth contends that Deputy Prosecutor Kaholokula and Detective King omitted material information with reckless disregard for the truth. By implication at least, he argues that on these facts, the omissions were reckless as a matter of law regardless of the court’s findings regarding the veracity of the deputy prosecutor and detective.
¶18 A reckless disregard for the truth may be shown where the affiant “ ‘in fact entertained serious doubts as to the truth’ of facts or statements in the affidavit.” State v. Clark, 143 Wn.2d 731, 751, 24 P.3d 1006 (2001) (quoting O’Connor, 39 Wn. App. at 117). “Serious doubts” can be “ ‘shown by (1) actual deliberation on the part of the affiant, or (2) the existence of obvious reasons to doubt the veracity of the informant or the accuracy of his reports.’ ” Id. (quoting O’Connor, 39 Wn. App. at 117).
¶20 Chenoweth also contends that because the totality of the omissions — including Kaholokula’s prior knowledge of Parker and King’s knowledge that Parker had asked for money — was material and would be fatal to probable cause if intentionally or recklessly omitted, the trial court may infer recklessness. Relying on United States
¶21 But as the court recognized in State v. Garrison, inferring recklessness from the omission of facts “clearly critical to the finding of probable cause,” Martin, 615 F.2d at 329, is not proper because that “ ‘inference collapses into a single inquiry the two elements — “intentionality” and “materiality” — which Franks states are independently necessary.’ ” State v. Garrison, 118 Wn.2d 870, 873, 827 P.2d 1388 (1992) (quoting United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990)).
¶22 The trial court’s credibility determinations that underlie its findings regarding the honesty of the deputy prosecutor and the detective in this case are binding on this appellate court.
Challenge to Warrant Affidavit under Washington State Constitution
¶23 Wood contends that Washington Constitution article I, section 7 provides greater protection than the Fourth Amendment, such that defendants should be allowed to challenge warrants based on negligent inclusion of false information or negligent omissions of material facts. Wood cites cases from California, Montana, Colorado, and Louisiana adopting this rule or some variation of this rule. See People v. Kurland, 28 Cal. 3d 376, 618 P.2d 213, 168 Cal. Rptr. 667 (1980); State v. Worrall, 1999 MT 55, 293 Mont. 439, 446-47, 976 P.2d 968; People v. Dailey, 639 P.2d 1068, 1075 (Colo. 1982); State v. Byrd, 568 So. 2d 554, 559 (La. 1990). Wood presents an analysis of the six factors identified in State v. Gunwall, 106 Wn.2d 54, 58, 720 P.2d 808 (1986), for claims under the state constitution: (1) the textual language, (2) differences in the texts, (3) constitutional history, (4) preexisting state law, (5) structural dif
¶24 The central question of the Gunwall analysis is whether a particular result is actually compelled by the unique characteristics of the state constitutional provision and its prior interpretations. City of Seattle v. McCready, 123 Wn.2d 260, 267, 868 P.2d 134 (1994). The Fourth Amendment provides,
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no 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.
U.S. Const. amend. IV. The Washington State Constitution provides, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Const. art. I, § 7. While it is true that the term “private affairs” has been interpreted to provide protection that is broader in scope than the language of the Fourth Amendment, see, e.g., State v. Young, 123 Wn.2d 173, 179-80, 867 P.2d 593 (1994), the focus here is on what constitutes “authority of law.” Because a valid search warrant constitutes “authority of law,” McCready, 123 Wn.2d at 271-72, the question we must decide is whether a warrant supported by an affidavit omitting material facts due to negligence rather than intention or recklessness necessarily fails to constitute “authority of law.” Wood fails to argue or demonstrate that the textual differences between “authority of law” and the Fourth Amendment’s “warrants” issued “upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,” or that any constitutional history compels a different treatment of the negligent omission of material facts under the Washington Constitution.
¶25 Wood next argues that under the fourth factor, preexisting state law, State v. Jackson, 102 Wn.2d 432, 688
¶26 The sixth factor considers matters of particular state or local concern. The question is whether potential policy considerations outweigh any need for national uniformity. Although four other states have departed from the Franks rule, Wood offers no particular state or local concern weighing in favor of a new rule beyond the State’s general interest in protecting an individual’s right to privacy.
Jury Instructions
¶28 Chenoweth also contends the trial court erred by giving Instruction 23 providing:
In conclusion, let me remind you that each of you has taken a solemn oath that you will well and truly try the case and a true verdict render upon the evidence given you in the trial and upon the law as now given you by the Court. You must not allow yourselves in the least to be moved by sympathy or influenced by prejudice. The question of guilt or lack of guilt is a question of fact, not a question of sympathy or prejudice or what the punishment will be. If, as a matter of fact, from the evidence, the defendant is guilty, no amount of sympathy will make the defendant innocent. If the defendant is innocent, no amount of prejudice will make him guilty; for, regardless of any feelings of sympathy or prejudice, the defendant is, upon the evidence and evidence alone, either guilty or not guilty. What is the true verdict, as shown by the evidence, is the one question before you.
Clerk’s Papers at 82.
¶29 In particular, Chenoweth contends that the instruction suggests that the defendant can be acquitted only if he is innocent. Chenoweth cites Gomila v. United States, 146 F.2d 372 (5th Cir. 1944) to support his argument that Instruction 26 constituted reversible error. In Gomila, the trial court instructed the jury as follows:
The rule of the presumption of innocence imposes upon the government the burden of establishing the guilt of each defendant, as stated, beyond a reasonable doubt, but, Gentlemen, as forceful as that rule is in protecting one charged with crime, it must never be forgotten that it was not intended, nor has it ever been intended, as extending an aid to one, who in fact is guilty, so that he may escape just punishment. The rule is but a humane provision of the law, intended to prevent, so far as*462 human agencies can, the conviction of an innocent defendant, but absolutely nothing more.
146 F.2d at 373. Because the instruction was not a correct statement of the law, and because it and other errors could have led the jury to believe that the judge was of the opinion that the defendants were guilty and should be convicted, the Gomila court reversed the conviction. Id. at 376.
¶30 But here, several instructions, including Instruction 26, told the jury that it was to decide whether the defendants were guilty or not guilty. Standing alone, the wording of Instruction 26 probably could be improved, but read as a whole, the instructions would not lead the jury to believe that acquittal required a finding of actual innocence.
Double Jeopardy
¶31 Finally, Chenoweth contends that his two convictions for possession of methamphetamine subjected him to double jeopardy, relying on State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998). When, as here, a defendant is charged with more than one crime under the same statutory provision, the proper inquiry is what unit of prosecution was intended by the legislature within the particular criminal statute. Adel, 136 Wn.2d at 634. If the legislature fails to designate the unit of prosecution within the criminal statute, any resulting ambiguity must be construed in favor of lenity. Id. at 635 (citing Bell v. United States, 349 U.S. 81, 84, 75 S. Ct. 620, 99 L. Ed. 905 (1955) (doubt is resolved against turning a single transaction into multiple offenses)). Former RCW 69.50.401(d) (1998), just as the section at issue in Adel, former RCW 69.50.401(e) (1998), did not indicate whether the legislature intended to punish a person multiple times for having amounts of the drug in more than one place within the person’s actual or constructive possession. The State argues that the vial of methamphetamine found near Chenoweth’s person at the time of his arrest supports a separate charge because there was no evidence that the methamphetamine found in the
¶32 The trial court’s ruling denying suppression of evidence obtained as a result of the warrant is affirmed. All convictions are affirmed except Count IV against Chenoweth, which is reversed. The case against Chenoweth is remanded for resentencing on his remaining convictions.
Agid and Schindler, JJ., concur.
