State v. Amodio, No. 19880-4-III, (Slip Op., February 21, 2002).



Feb. 2002                 STATE v. AMODIO                         1

                       Cause No. 19880-4-III



       [No. 19880-4-III. Division Three. February 21, 2002.]

              STATE OF WASHINGTON, ) No. 19880-4-III

                                   )

                       Respondent, ) Division Three

                                   ) Panel Three

                                v. )

                                   ) OPINION PUBLISHED IN PART

             MICHAEL LOUIS AMODIO, )

                                   )

                        Appellant. ) FILED: February 21, 2002



  Trial Court: Superior Court, Spokane County,

No. 00-1-01381-8, James Murphy, J., January 5, 2001.

  William D. Edelblute, for appellant.

  Kevin M. Korsmo and Andrew J. Metts, III, Deputy Prosecuting

Attorneys, for respondent.



  SCHULTHEIS, J. - A search warrant issued by a Spokane County

district court commissioner led to the arrest and conviction of Michael

Amodio for second degree unlawful possession of a firearm. Before trial,

Mr. Amodio unsuccessfully challenged the validity of the warrant, arguing

that the office of the district court commissioner was not created

pursuant to the requirements of RCW 3.38.020. On appeal, Mr. Amodio

contends (1) the district court commissioner was not properly appointed;

(2) the trial court abused its discretion by admitting certain evidence;

and (3) the evidence is insufficient to support the verdict. We find

that the County's districting plan adequately complies with RCW 3.38.020.

Further finding that the evidence, properly admitted, supports the

verdict, we affirm.



                                     Facts

  In March 2000, District Court Commissioner Robert Seines signed a search

warrant authorizing the search of a residence at E. 2224 Everett, Spokane,

for evidence of methamphetamine use, manufacture, and delivery. The

affidavit supporting the request for the warrant indicated that current

power records listed the subscribers at the residence as Michael and Linda

Amodio.

  Officers executed the warrant on April 5, 2000. They found Ms. Amodio

in a main floor bedroom and another female in the basement living area.

Mr. Amodio was not in the residence and did not appear during the search.

Detective Kevin Langford searched about one-half of the bedroom. He

found female clothing in that area, and a locked wooden box. On the

carved lid of the box, written in permanent marker, was the word

"Mike's." Another officer unscrewed the clasp, opened the box, and

discovered multiple knives and one old-style gunpowder revolver.

  Because Mr. Amodio had a previous felony conviction, the State charged

him with one count of second degree unlawful possession of a firearm, RCW

9.41.040(1)(b)(i). He moved for suppression of the revolver, based in

part on his argument that the warrant was signed by a district court

commissioner who had been appointed without proper legal authority. The

motion was denied.

  At trial, Mr. Amodio objected to admission of testimony regarding the word

"Mike's" written on the wooden box. The trial court rejected his argument

that the writing was hearsay, and allowed admission of a photograph of the

box. To support its case that Mr. Amodio lived in the residence, the State

also attempted to admit several documents found at the scene. Only one was

admitted, over defense objection: a notice from the district court to Mr.

Amodio concerning a fine. The notice was addressed to Mr. Amodio at

2223 E. Everett, rather than the actual address of 2224

E. Everett. The trial court redacted the name of the court and the offense

from this document. After unsuccessfully moving to dismiss for

insufficient evidence of constructive possession, Mr. Amodio rested his

defense. The jury found him guilty of the offense and the court imposed a

standard range sentence of six months.



                   Appointment of the District Court Commissioner

  Mr. Amodio contends the trial court erred in concluding that the Spokane

County district court commissioner had authority to issue the search

warrant. He assigns no error to the findings of fact filed in the denial

of his motion to suppress; accordingly, those findings are verities on

appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).

We review the conclusions of law de novo. State v. Johnson,

128 Wn.2d 431, 443, 909 P.2d 293 (1996).

  We begin by noting that in order to be valid, a warrant must be issued

by a magistrate with the legal authority to issue it. City of

Seattle v. McCready, 123 Wn.2d 260, 272, 868 P.2d 134 (1994). A

warrant issued by a magistrate without the authority to do so "has no

more validity than a warrant signed by a private citizen, and can no more

serve as the authority of law necessary to satisfy the requirements of

Const. art. 1, § 7." Id.  Consequently, if Commissioner Seines

did not have authority to issue the search warrant, then all evidence

discovered at 2224 E. Everett should have been excluded as the fruits of

an unlawful search. The question we address is whether the office of

district court commissioner was properly created according to statute.

  When authorized by the districting plan, "one or more district court

commissioners may be appointed in any district by the judges of the

district." RCW 3.42.010. The districting plan is created by a district

court districting committee pursuant to RCW 3.38.020, which provides that

the plan "shall" include, among other provisions, "[t]he number and

location of district court commissioners to be authorized, if any." RCW

3.38.020(5). After the plan is developed by the districting committee,

the county legislative authority (the board of county commissioners)

holds a public hearing, and may adopt the plan as it is written or as it

is amended. RCW 3.38.030.

  In 1962, the Spokane County commissioners adopted a districting plan in

resolution 62-169. The plan, codified as Spokane County Code (SCC)

1.16.040, provided that the justices of the peace (now called district

court judges, RCW 3.30.015) in the Spokane district could appoint one

justice court (now called district court, RCW 3.30.015) commissioner in

each of the following locations: Cheney, Deer Park, Airway Heights,

Millwood, Medical Lake, and Spangle. The districting plan was amended by

resolution in 1978, creating one district court instead of four within

the boundaries of Spokane County. By this new amendment, SCC 1.16.040

codified the provision challenged by Mr. Amodio: "The justices of the

peace of the Spokane District may appoint one or more justice court

commissioners having those powers as enumerated in RCW Section 3.42.020."

Clerk's Papers at 37.

  Citing State v. Moore, 73 Wn. App. 805, 871 P.2d 1086 (1994),

Mr. Amodio contends the 1978 amendment to SCC 1.16.040 fails to satisfy

the requirements of RCW 3.38.020 that the districting plan include the

number and location of the district court commissioners. In

Moore, Skamania County had adopted a districting plan that did

not include a provision authorizing appointment of district court

commissioners. Although the districting committee had orally recommended

to the board that it authorize commissioners, the recommendation was

never reduced to writing, and the plan was never amended.

Moore, 73 Wn. App. at 808-09. Nevertheless, the county district

court judge appointed a commissioner who issued search warrants in each

of 11 criminal prosecutions that were consolidated on appeal.

Moore found that the office of district court commissioner had

never been validly created. Id. at 812. Holding that the

statute authorizing the office is not self-executing, the court held that

the districting plan must specifically establish the office of district

court commissioner by specifying the number and locations of commissioner

courts. Id. at 813.

  Moore calls for strict compliance with RCW 3.38.020. Id.

The "sound policy reasons" for strict compliance include recognition that

the district court commissioner wields substantial authority without

direct accountability to the county's residents. Id.

Consequently, creation and authorization of the office must comply with

the public process of debate and adoption at board of county commissioner

meetings. Id. at 814.

  In Moore, however, Skamania County never expressly appointed

or authorized appointment of a commissioner after the district court

system was established. Spokane County recently amended SCC 1.16.040 to

comply with RCW 3.38.020:

  There shall be up to five justice court commissioners having

  those powers enumerated in RCW Section 3.42.020. The actual

  number of justice court commissioners, up to five, shall be

  determined on a yearly basis upon the board of county

  commissioners[`] adoption of the Spokane County district court

  budget. Justice court commissioners' court rooms and records

  shall be in the Spokane County Courthouse Complex or in court

  facilities located within the city limits of Cheney or city

  limits of Deer Park.



SCC 1.16.040. When a specific statutory procedure for creation of a

governmental department or position is not followed, a subsequent

legislative enactment incorporating the necessary elements can provide

the notice and authorization necessary to cure the deficiency. In re

Eng, 113 Wn.2d 178, 191, 776 P.2d 1336 (1989). In Eng,

three appellants challenged the authority of certain Seattle municipal

judges whose departments had not been established by the city's

legislative body as required by law. Eng, 113 Wn.2d at 191,

found that while the specific statutory procedure had not been followed,

subsequent codification identifying all the departments provided "more

than adequate notice, albeit after the fact." The court concluded,

"[t]hus, the City officially created half of its municipal court

departments years after it `created' them in practice." Id.

  As noted in Moore, 73 Wn. App. at 814, public input into the

creation of the office of district court commissioner is the paramount

concern of the Legislature. In the case before us, the process of

resolutions, public discussion, adoption, and amendment of the county

code has provided the public adequate opportunity to be heard on the

authorization for the office of district court commissioner. As in

Eng, the County incorporated the statutorily required elements

in a subsequent code authorizing Commissioner Seines-the fourth district

court position created out of a maximum of five-after the fact. We find

that Commissioner Seines' office was properly created, and conclude that

the search warrant he issued was valid.

  Affirmed.

  The remainder of this opinion has no precedential value. Therefore, it

will be filed for public record in accordance with the rules governing

unpublished opinions, RCW 2.06.040.



  BROWN, A.C.J., and SWEENEY, J., concur.