92 Wash. App. 1 | Wash. Ct. App. | 1998
Robert Perez appeals his conviction for possession of cocaine with intent to deliver. He argues that the trial court erred in denying his motion to suppress because the affidavit in support of the search warrant did not contain facts sufficient to establish a nexus between the suspected criminal activity and his home. He also contends that the information contained in the affidavit was stale. Because the affidavit contained abundant facts establishing a nexus between the suspected drug activities and the Perez home, none of which was stale, we affirm.
FACTS
On November 11, 1994, Seattle police detectives executed a search warrant for a house at 3021 SW Thistle in Seattle. The warrant was based on an affidavit by Detective David C. Unger who was conducting an investigation into the activities of Agapito Avila-Arias, aka “Felix.” Based on observations made in the course of that investigation, Detective Unger believed that 3021 SW Thistle was a “safe-house” used by Felix to store drugs and money. When police served the search warrant and entered the house, they encountered Robert Perez and Regina Villalovos. Perez told police where both cocaine and money were located. Police found 60 grams of cocaine, $8,200 in cash and a .40 caliber Glock semiautomatic pistol on the premises. Perez admitted he was holding the cash for his wife’s brother-in-law, the man known to police as “Felix.” He also admitted he had been selling cocaine for about two months.
On January 3, 1996, Perez was charged with possession
DISCUSSION
I. Nexus
In determining the validity of a search warrant, we consider whether the affidavit on its face contained sufficient facts for a finding of probable cause.
Perez contends there was insufficient evidence to support the search warrant because the facts did not estab
Perez argues that the required nexus was not established because there were no facts in the affidavit to support the inference that Felix used 3021 SW Thistle as a safe house. We disagree. First, the affidavit recites that police received information from a reliable informant
Four days before the warrant was issued, the same informant contacted Detective Unger and told him that Felix was contacting his customers and telling them he had just received a large shipment of narcotics. The following day, police saw Felix leave #101 alone and again asked the informant to page him to request narcotics. The informant did so. Felix returned the page and agreed to a time and location for the narcotics transaction. Following this page, Felix drove directly to 3021 SW Thistle and entered the house. After about 10 minutes he left the house alone and drove directly to a house at 9445 25th SW a prior address for Avila-Arias at which a vehicle belonging to John Villalovos Jr. had been parked within the previous couple of days. Felix entered the house, left again a short time later, and drove directly to the location at which he had agreed to meet the informant. A second successful controlled buy was completed. Felix then drove directly back to 3021 SW Thistle and again entered the house. About 20 minutes later, he left the house with four others and drove directly to an apartment building located at 1050 SW 151st in a car registered to Robert Perez. Felix and another man entered the building on foot. Felix emerged about 15 minutes later and got back into the car. Police then followed it directly to the corner of 4th Ave. S. and S. Michigan where Felix and two others got out of the car, met another person, and walked to a car in the parking lot which they entered. They drove that car directly to 3021 SW Thistle where Felix got out of the car and into his pickup. Both vehicles then drove back to the apartment building at 1050 SW 151st. This time everyone in both vehicles went inside and entered a room police later determined had just been rented that morning. Felix left in his pickup about ten minutes later
Perez’s argument that these facts are insufficient to establish the required nexus between Felix’s illegal drug activity and the house at 3021 SW Thistle is without merit. We agree with Perez that “standing alone, an officer’s belief that [drug dealers] hide evidence at other premises under their control does not authorize a warrant to search those places.”
In addition, the informant had reported that some of Sherry Villalovos’s sisters were involved in selling narcotics provided by her husband Felix. Police then discovered that a Regina Villalovos was connected with an address Sherry had previously used and that she listed Felix’s current address on her Washington driver’s license. These facts supported an inference that the Regina Villalovos who was billed, along with Robert Perez, for electricity at 3021 SW Thistle was one of Sherry’s sisters.
All these facts, taken together, were more than sufficient to establish the required nexus between the suspected criminal activity and the house at 3021 SW Thistle.
II. Staleness
Perez also contends that the information in the warrant was stale because it is not clear whether the handwritten sentence, “[t]his information occurred within the past four days,” refers to the paragraph to which it is appended. But any rational reading of the sentence and the paragraph to which it is appended clearly establishes that it refers to that paragraph. The fact that the next paragraph begins with the phrase “[wjithin the past three days” confirms this reading.
[6] Perez also argues that three or four days is too long to support an inference that there was still contraband on the premises. The facts and circumstances recited in the supporting affidavit must establish a reasonable probability that the criminal activity is occurring at or about the time
Here, the facts recited in the affidavit support an inference that criminal activity was occurring at 3021 SW Thistle at the time the warrant was issued. In contrast to Higby, where there was no evidence of regular drug dealing activity but only of a single sale, here both the information provided by the informant and police observations suggested that Felix was a drug dealer and that his drug dealing activities were ongoing.
Affirmed.
Webster and Ellington, JJ., concur.
Review denied at 137 Wn.2d 1035 (1999).
State v. O’Neil, 74 Wn. App. 820, 824, 879 P.2d 950 (1994), review denied, 125 Wn.2d 1016 (1995).
Id. at 824.
State v. Perrone, 119 Wn.2d 538, 549, 834 P.2d 611 (1992). Perez misstates the standard of review in his brief. Unless the trial court issues findings on other matters such as whether there were false statements or material omissions of fact, the trial court’s findings are superfluous. O’Neil, 74 Wn. App. at 823 (citing State v. Estorga, 60 Wn. App. 298, 304 n.3, 803 P.2d 813, review denied, 116 Wn.2d 1027 (1991)).
Id. at 824.
State v. White, 44 Wn. App. 215, 218, 720 P.2d 873 (1986), review denied, 107 Wn.2d 1020 (1987).
O’Neil, 74 Wn. App. at 824.
Id.
Id. at 825.
Id. at 824-25.
Id.
The informant’s reliability and/or veracity have not been challenged on appeal.
The informant also told police that some sisters and a brother of Sherry Villalovos, Felix’s wife, might also be involved in the sale of narcotics Felix provided.
Id.
State v. Olson, 73 Wn. App. 348, 357, 869 P.2d 110, review denied, 124 Wn.2d 1029 (1994).
See O’Neil, 74 Wn. App. at 825.
State v. Young, 62 Wn. App. 895, 903, 802 P.2d 829, 817 P.2d 412 (1991) (a period in excess of one year cast doubt on the warrant because there was little basis for believing that the items sought would still be present).
State v. Higby, 26 Wn. App. 457, 460, 613 P.2d 1192 (1980) (one sale of a small amount of marijuana did not establish prohable cause to search two weeks later).
Young, 62 Wn. App. at 903.
Cf. State v. Bittner, 66 Wn. App. 541, 547, 832 P.2d 529 (1992) (because the affidavit did not state that the defendant was a known drug dealer and the single, unobserved transaction was not corroborated by any other evidence, a one-week delay rendered the warrant invalid), review denied, 120 Wn.2d 1031 (1993).