FILED
JAN 14,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 31070-1-111
Respondent, )
)
v. )
)
THOMAS ROGER JONES, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, C.J. - Thomas Roger Jones challenges the trial court's rulings on his
motions to suppress and to hold a Franks l hearing. The trial court properly rejected his
contentions. We affinn his convictions for possession with intent to manufacture or
deliver methamphetamine, two counts of second degree unlawful possession of a firearm,
and possession of oxycodone.
FACTS
After using an informant to make four controlled purchases from Mr. Jones's rural
Pend Oreille County residence, law enforcement officers obtained a search warrant for
the premises. The search revealed a large amount of methamphetamine along with
packaging material, scales, cash, two guns, and some oxycodone. One charge was filed
for each of the two drugs and for both guns. Apparently deciding not to reveal the
1 Franks v. Delaware, 438 U.S. 154,98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
No. 31070-I-III
State v. Jones
identity of the informant, the prosecution did not file charges relating to any of the four
deliveries recited in the affidavit.
The defense moved to suppress all evidence, arguing that the warrant was
misdated, the controlled buys were not properly conducted, and that a Franks hearing
was necessary to address information that was omitted from the warrant affidavit. The
matter proceeded to telephonic argument without testimony. In the course of its analysis,
the trial court ruled that no Franks hearing was necessary because even if the disputed
information was read into the warrant, probable cause still existed. The motion was
denied.
Mr. Jones ultimately submitted his case to the court as a stipulated trial. The court
found him gUilty as charged. After a standard range sentence was imposed, he timely
appealed to this court.
ANALYSIS
Mr. Jones presents three arguments. He contends first that several of the court's
findings, including the finding related to the signing of the warrant, are not supported by
the record. He also argues that the controlled buys were not properly conducted and that
a Franks hearing was necessary. We address those three arguments in that order.
2
No. 31070-1-111
State v. Jones
Factual Findings
Mr. Jones argues that the trial court erred in finding that the magistrate signed the
search warrant on December 22, 2010, instead of the December 10, 2010, date indicated
on that document. He also argues that seven other findings lack support in the record.
Well settled standards govern this challenge. The conclusions oflaw entered
following a suppression hearing are reviewed de novo. State v. Duncan, 146 Wn.2d 166,
171, 43 P.3d 513 (2002). Factual findings are reviewed for substantial evidence, i.e.,
evidence sufficient to convince a rational person of the truth of the finding. State v. Hill,
123 Wn.2d 641,644,870 P.2d 313 (1994). Unchallenged findings are treated as verities
on appeal. I d.
The search warrant was signed by Judge Philip Van de Veer and dated December
lO, 2010. The first finding of fact entered after the suppression hearing indicates that
Judge Van de Veer signed the warrant on December 22,2010. Mr. Jones argues that this
first finding is not supported by the evidence in the record. We disagree.
Both the affidavit in support of the warrant and the search warrant itself bore the
same caption: "SW 12-22-20lO." The affidavit was signed and dated December 22,
20lO, by both the detective and Judge Van de Veer, who subscribed the detective's
signature. The search warrant itself bears the judge's signature with the handwritten date
of December 10, 20lO. The affidavit details the four controlled buys made by the
3
No.31070-I-III
State v. Jones
informant and describes the last two of them as occurring on December 16 and December
21,2010.
Based on this conflicting information, the trial court concluded that Judge Van De
Veer simply made a scrivener's error when writing down December 10 on the search
warrant. The record supports this determination. The warrant and the affidavit were
presented together; one bears the December 22nd date while the other was signed using
December 10th as the date. The affidavit refers to events occurring after December 10th.
The evidence strongly suggests that the December 10th date was a simple mistake
made when the judge signed the warrant. The trial court did not err in concluding that the
December 10th date was a simple scrivener's error. 2 Substantial evidence supports the
trial court's ruling.
Mr. Jones also attacks the court's findings of fact 3-9. These findings largely
relate to the controlled buys described in the search warrant affidavit. The affidavit
provides factual support for each of the challenged findings. They, therefore, are all
supported by substantial evidence. Mr. Jones also argues that some of the findings are
misleading or inadequate. Those concerns reflect his legal arguments which we address
next.
A clerical error does not invalidate a warrant. State v. Wible, 113 Wn. App. 18,
2
25-26,51 P.3d 830 (2002) (involving similar misdating issue).
4
No. 31070-1-II1
State v. Jones
The trial court did not err in entering the challenged findings from the suppression
hearing.
Adequacy ofthe Controlled Buys
Mr. Jones next argues that the search warrant lacks probable cause because the
controlled buys were not properly conducted. The magistrate was free to credit the
information and did not err in determining that probable cause existed.
Probable cause to issue a warrant is established if the supporting affidavit sets forth
"facts sufficient for a reasonable person to conclude the defendant probably is involved in
criminal activity." State v. Huji, 106 Wn.2d 206,209, 720 P.2d 838 (1986). The affidavit
must be tested in a commonsense fashion rather than hypertechnically. State v. Jackson,
150 Wn.2d 251, 265, 76 P.3d 217 (2003). The existence of probable cause is a legal
question which a reviewing court considers de novo. State v. Chamberlin, 161 Wn.2d 30,
40, 162 P.3d 389 (2007). However, "[g]reat deference is accorded the issuing magistrate's
determination of probable cause." State v. Cord, 103 Wn.2d 361,366,693 P.2d 81 (1985).
Even ifthe propriety of issuing the warrant were debatable, the deference due the
magistrate's decision would tip the balance in favor of upholding the warrant. State v.
Jackson, 102 Wn.2d 432,446,688 P.2d 136 (1984). In light of the deference owed the
magistrate's decision, the proper question on review is whether the magistrate could draw
the connection, not whether he or she should do so.
5
No. 31070~ I-III
State v. Jones
Washington continues to apply the former Aguilar-SpinellP standards to assess the
adequacy of a search warrant affidavit. Jackson, 102 Wn.2d at 446. 4 As applied in
Washington, probable cause based upon an informant's information requires that an
affidavit establish both the informant's reliability and basis of knowledge. Id. at 443.
Where one or both of those factors is weak, independent police investigation can supply
corroboration. Id. at 445.
Police frequently use informants to make controlled purchases of controlled
substances. A properly conducted controlled buy makes an informant a credible source of
information. E.g., State v. Casto, 39 Wn. App. 229, 234-35, 692 P.2d 890 (1984). The
reason was explained:
In a "controlled buy," an informant claiming to know that drugs are for sale
at a particular place is given marked money, searched for drugs, and
observed while sent into the specified location. If the informant "goes in
empty and comes out full," his assertion that drugs were available is
proven, and his reliability confirmed. Properly executed, a controlled buy
can thus provide the facts and circumstances necessary to satisfY both
prongs of the test for probable cause.
Id. (citations omitted; emphasis in original).
3Aguilar 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).
4 Federal courts now apply a totality of the circumstances test in evaluating the
sufficiency ofa search warrant. Illinois v. Gates, 462 U.S. 213,103 S. Ct. 2317, 76 L.
Ed. 2d 527 (1983).
6
No. 31070-1-111
State v. Jones
Mr. Jones contends that the police did not conduct a proper controlled buy, thus
the warrant failed to establish probable cause. Like the trial judge, we believe his
arguments go more to the weight of the evidence rather than rendering the affidavit
deficient.
The gist of Mr. Jones's argument is that the officers could not see the informant go
into the residence because it was one-half mile down the roadway from the public access.
He argues that because the officers could not see the informant the entire way, there is no
guarantee that he might not have stopped somewhere along the road and met up with
someone else. As the trial court recognized, this court dealt with an urban version of this
problem in State v. Lane, 56 Wn. App. 286, 786 P.2d 277 (1989).
In Lane the officers observed their informant enter the main entrance of an
apartment complex. The informant then went up the stairs and entered one of the
apartments where the drug transaction then took place. Id. at 289. Although the officers
could not see which apartment the informant entered, this court still found that the
controlled buy was properly conducted. Id. at 293-94.
Mr. Jones attempts to distinguish Lane on the basis that there, unlike his case, the
officers could at least see the informant enter the apartment building while in his situation
the informant might have stopped anywhere along the half-mile driveway. The trial court
thought this situation was actually stronger than Lane since there were no other
residences located along the driveway. We agree. We also note, however, that Mr.
7
No. 31070-1-111
State v. Jones
Jones's argument emphasizes the wrong aspect of the Casto test. As noted in Casto, the
critical fact is that the informant went in empty and came out full, thus verifYing the
report that drugs could be purchased and rendering the informant reliable. 39 Wn. App.
at 234. Where the informant was getting his drugs was less important than the fact that
he was supporting his claim that he could get them. ld. at 235. Here, the informant
supported his report four times. Ample probable cause existed.
The trial court properly denied the motion to suppress.
Franks Hearing
Mr. Jones also argues that the trial court erred in not conducting a Franks hearing
to address information he believes should have been included in the warrant affidavit. In
particular, he argues that the affidavit should have stated that officers could not see the
informant enter the residence and should have included the informant's criminal history.
We agree with the trial court that probable cause would have existed even with this
information included in the affidavit. There was no need to conduct a Franks hearing. s
In limited circumstances, the information contained in or omitted from a search
warrant can be challenged. Franks v. Delaware, 438 U.S. 154, 155-56,98 S. Ct. 2674,
57 L. Ed. 2d 667 (1978). When information was deliberately or recklessly excluded from
S Mr. Jones also made a related request for discovery concerning the controlled
buys in order to support his Franks argument. In view of our decision that no hearing
was necessary, we need not address the discovery request.
8
No. 31070-1-III
State v. Jones
an affidavit, a court is to add the information to the warrant and determine if probable
cause still exists. Id. at 171-72. If there is still probable cause, the motion will be
denied. 6 Id. at 172. If there no longer is probable cause, then the challenger is entitled to
a hearing to attempt to establish the contention that the information was known to police
and required to be included in the affidavit. Id.
The trial judge ruled that including the additional information in the warrant did
not vitiate probable cause. Lane is controlling in support of that ruling.
We have previously discussed the issue of whether or not the police needed to see
the informant enter the Jones residence. As noted, the Lane court faced the same
problem. Although police could see the informant enter the front door of an apartment
complex, they could not see which apartment the informant then entered. Probable cause
still exists if the fact that surveying officers could not see the informant enter the Jones
residence is read into the affidavit in this case. The critical fact was that the informant
came back with the controlled substances that he said he could purchase. There was no
need to conduct a hearing on this issue.
Similarly, Lane disposes of the argument that the informant's criminal history
needed to be disclosed to the issuing magistrate. There we concluded that the magistrate
was not misled by the omission of the informant's criminal history since it was the
6 The same approach applies to false information that was deliberately or
recklessly included in the affidavit. 438 U.S. at 171-72.
9
No. 31070-1-111
State v. Jones
court's "common experience" that an informant "has had prior contact with the criminal
justice system." 56 Wn. App. at 295. That common experience has not changed in the
quarter century since Lane was filed.
Neither allegation negated probable cause. The trial court correctly denied the
request for a Franks hearing.
The court's factual findings are supported by the record. The affidavit established
probable cause to search the Jones property. Accordingly, the trial court properly denied
the motion to suppress.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
K rsmo, .J.
WE CONCUR:
Siddoway, .
10