20315-8-III
- State of Washington V Joshua Caleb Larson
File Date: 04/29/2003
203158MAJ
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DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 20315-8-III
Title of Case: State of Washington V Joshua Caleb Larson
File Date: 04/29/2003
SOURCE OF APPEAL
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Appeal from Superior Court of Klickitat County
Docket No: 01-1-00007-3
Judgment or order under review
Date filed: 06/29/2001
JUDGES
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Authored by Frank L Kurtz
Concurring: Kenneth H. Kato
Stephen M Brown
COUNSEL OF RECORD
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Counsel for Appellant(s)
Suzan L. Clark
Attorney at Law
1101 Broadway St Ste 250
Vancouver, WA 98660-3320
Counsel for Respondent(s)
Shawn N Anderson
Klickitat County Pros Ofc
M/S-Ch-18
205 S Columbus Ave
Goldendale, WA 98620-9289
Timothy Shane O'Neill
Klickitat Co Pros Atty
Ms- Ch-18
205 S Columbus Ave
Goldendale, WA 98620-9289
David Brian Trefry
Attorney at Law
211 W Aususta Ste a
Spokane, WA 99205
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 20315-8-III
)
Respondent, )
) Division Three
v. ) Panel Ten
)
JOSHUA CALEB LARSON, ) UNPUBLISHED OPINION
)
Appellant. )
KURTZ, J. - Joshua C. Larson appeals his conviction for unlawful
possession of methamphetamine. He argues that the trial court should have
suppressed the methamphetamine as a product of an illegal search warrant.
The question presented on appeal is whether the affidavit tendered in
support of the search warrant was sufficient to provide a basis for
believing the information attributed to unnamed informants was credible.
We conclude that the affidavit was sufficient and affirm Mr. Larson's
conviction for unlawful possession of methamphetamine.
FACTS
On November 4, 2000, Klickitat County sheriff's deputies executed a
search warrant at 703 Washington Street #5, Lyle, Washington. During the
search, the deputies went through a wallet belonging to Joshua Larson and
discovered a small amount of methamphetamine. Thereafter, Mr. Larson was
charged in Klickitat County Superior Court for violation of the uniform
controlled substances act, RCW 69.50.401(d). Before trial, Mr. Larson
filed a motion to suppress the methamphetamine. After examining the
affidavit submitted in support of the search warrant, the trial court
concluded that the district court judge had sufficient evidence to issue
the search warrant. The trial court denied Mr. Larson's motion to suppress
the evidence.
The following information was submitted to the district court judge
who issued the search warrant:
On October 21, 2000, Deputy Pat Kaley of the Klickitat County
Sheriff's Department was sent to 703 Washington Street #5 in Lyle,
Washington, in response to a report regarding an underage drinking party.
As a result of his investigation, Deputy Kaley learned that Derek Tresch
lived in the apartment. The next day, Deputy Kaley responded to the report
of a fight at the same location. During the subsequent investigation,
Deputy Kaley performed a records check of Mr. Tresch and learned that Mr.
Tresch was a convicted felon. He also learned that a person later
identified as Josh C. Larson had been at the apartment.
On October 23, 2000, Deputy Kaley obtained a statement from a person
who had seen a rifle in Mr. Tresch's apartment. The identity of the person
was known to Deputy Kaley but not revealed in his affidavit. The person
'wished to remain anonymous due to possible retribution from Tresch and
'Josh.'' Clerk's Papers (CP) at 108. In his affidavit, Deputy Kaley
referred to this person as a 'confidential informant' and stated that he
could not confirm the reliability of his informant. CP at 108.
In the statement to the deputy, the informant stated that the
informant had been in Mr. Tresch's residence 'as early as October 21,
2000,' the day the deputy had received a report regarding the drinking
party. CP at 108. At that time, the informant saw a Ruger 10/22, .22
caliber, semi-automatic rifle. The informant further stated 'the rifle is
chrome and black in color and has a folding butt-stock.' CP at 108.
According to the informant, the rifle was in plain view and located on a
gun rack near the rear sliding glass door.
Deputy Kaley checked the informant's criminal history and discovered
two non-felony criminal charges pending in Klickitat County District Court.
The deputy stated that there were no outstanding arrest warrants for the
informant. Lastly, the deputy stated that the informant did not supply the
information to him in exchange for a 'deal'--dismissal or reduction of the
pending charges. CP at 109.
After obtaining this information, Deputy Kaley contacted a second
person who supplied information regarding the firearm. Like the previous
informant, the second informant expressed a desire not to be identified for
fear of retribution. This informant stated that the informant had been in
Mr. Tresch's apartment 'in the recent past' and observed the rifle inside
the residence. CP at 109. Again, Deputy Kaley could not vouch for the
reliability of the informant. A records check revealed that the second
informant had a conviction for disorderly conduct. Otherwise, there were
no other charges or outstanding arrest warrants.
After talking with his informants, Deputy Kaley called the Klickitat
County Prosecutor. The prosecutor informed the deputy that he knew Mr.
Tresch and further stated he was aware that Mr. Tresch had a stepbrother
named 'Josh.' CP at 109. The prosecutor stated that both Mr. Tresch and
Josh were convicted felons.
Deputy Kaley was able to identify 'Josh' as Josh Larson. A records
check revealed that Mr. Tresch had three felony convictions and that Mr.
Larson had eight felony convictions. Thereafter, Deputy Kaley confirmed
that neither Mr. Tresch nor Mr. Larson had their firearm possession rights
restored.
On November 2, 2000, Chief Criminal Deputy Roy Brown contacted Deputy
Kaley. According to Deputy Brown, a confidential informant had seen a .22
caliber rifle and a box of ammunition inside Mr. Tresch's residence within
the last 72 hours. The confidential informant did not describe the .22
rifle and, therefore, the deputies could not confirm that the rifle matched
the description provided by Deputy Kaley's first informant. Deputy Brown
vouched for his informant and stated that the informant was reliable
because the informant had provided him with information that had been
subsequently corroborated.
Mr. Larson was convicted of unlawful possession of methamphetamine
after a bench trial. He appeals the trial court's denial of his motion to
suppress the methamphetamine.
ANALYSIS
Issue. Washington applies the two-prong Aguilar-Spinelli1 test to
determine whether information provided by an informant establishes probable
cause to issue a search warrant: basis of knowledge and reliability. State
v. Jackson, 102 Wn.2d 432, 436-37, 688 P.2d 136 (1984). The issue is
whether Deputy Kaley's affidavit satisfied the reliability prong of Aguilar-
Spinelli.
A search warrant may issue only upon a determination of probable
cause, based upon facts and circumstances sufficient to establish a
reasonable inference that criminal activity is occurring or that contraband
exists at a certain location. State v. Smith, 93 Wn.2d 329, 352, 610 P.2d
869 (1980). Probable causes exists when an affidavit supporting a search
warrant sets forth facts sufficient for a reasonable person to conclude the
defendant probably is involved in criminal activity. State v. Young, 123
Wn.2d 173, 195, 867 P.2d 593 (1994). Facts that, standing alone, would not
support probable cause can do so when viewed together with other facts.
State v. Garcia, 63 Wn. App. 868, 875, 824 P.2d 1220 (1992).
The judge's decision that a warrant should issue is an exercise of
judicial discretion that is reviewed for abuse of discretion. State v.
Remboldt, 64 Wn. App. 505, 509, 827 P.2d 282 (1992). This determination
generally should be given great deference by a reviewing court. State v.
Seagull, 95 Wn.2d 898, 907, 632 P.2d 44 (1981). An application for a
search warrant should be judged in the light of common sense with doubts
resolved in favor of the warrant. State v. Partin, 88 Wn.2d 899, 904, 567
P.2d 1136 (1977).
Washington courts apply the Aguilar-Spinelli test to evaluate the
validity of warrants issued where the existence of probable cause depends
on an informant's tip. State v. Cole, 128 Wn.2d 262, 286-87, 906 P.2d 925
(1995). Under this test, 'an affidavit using an informant's tips to
establish probable cause must establish both the basis of information and
the credibility or reliability of the informant.' State v. Huft, 106 Wn.2d
206, 209-10, 720 P.2d 838 (1986). Generally, both prongs of the Aguilar-
Spinelli test must be met in order to establish probable cause. Jackson,
102 Wn.2d at 437. However, independent police investigation that
corroborates the tip can supply the basis for probable cause. Cole, 128
Wn.2d at 287.
Basis of Knowledge. First-hand information normally satisfies the
basis of knowledge prong of Aguilar-Spinelli. State v. Smith, 110 Wn.2d
658, 663, 756 P.2d 722 (1988). Here, all three informants stated that they
had personally seen a rifle in Mr. Tresch's apartment. Mr. Larson notes
that the statements of the first two informants are unclear as to when each
informant saw the rifle. In the first informant's statement, the informant
references 'as early as October 21, 2000.' CP at 108. In the statement of
the second informant, the informant references 'in the recent past.' CP at
109. The statement of the third informant references 'within the last 72
hours.' CP at 110. We are instructed to read these affidavits in the
light of common sense, with doubts resolved in favor of the warrant. In
context, the informants were stating that they had recently seen a rifle in
the apartment. The State has satisfied its burden under the first prong of
Aguilar-Spinelli.
Reliability. The amount of evidence necessary to establish the
reliability prong of Aguilar-Spinelli depends upon whether the informant is
a professional or a citizen informant. State v. Northness, 20 Wn. App.
551, 556-57, 582 P.2d 546 (1978). In the latter instance, evidence of past
reliability is relaxed. Regardless, the police must 'interview the
informant and ascertain such background facts as would support a reasonable
inference that he is 'prudent' or credible, and without motive to falsify.'
State v. Chatmon, 9 Wn. App. 741, 748, 515 P.2d 530 (1973). Washington
requires 'heightened demonstrations of credibility for citizen informants
whose identities were known to the police but not revealed to the
magistrate.' State v. Ibarra, 61 Wn. App. 695, 700, 812 P.2d 114 (1991).
Courts are reassured if the affidavit indicates the informant is a citizen
informant who is not involved in the criminal activity or motivated by self-
interest. Cole, 128 Wn.2d at 287. Most importantly, an affidavit
containing information provided by an anonymous citizen informant must
contain background facts sufficient to support a reasonable inference that
the information is credible and no motive is present to falsify
information. Id. at 287-88.
At best, the reliability of the first two informants is minimally
established. Both informants revealed his or her identity to Deputy Kaley.
Consequently, he was able to perform records checks on both informants.
The first informant had two pending misdemeanor cases but no outstanding
warrants. Deputy Kaley represented to the court that the informant did not
supply information to him in exchange for his help with the informant's
pending charges. The criminal record of the second informant was limited
to a conviction for disorderly conduct. Both informants provided the same
credible reason for the desire to remain anonymous--fear of retribution.
On the other hand, the affidavit leaves much to be desired regarding
reliability. Other than their respective criminal records, we know nothing
about these informants. There is no information about who they are, how
they came to be in Mr. Tresch's apartment, and what relationship they have,
if any, to Mr. Tresch and Mr. Larson. This is the kind of information that
would allow a judge to make an independent assessment regarding the
informant's reliability. As noted by Professor Wayne LaFave, statements
contained in an affidavit tendered in support of the issuance of a search
warrant concerning the status of 'citizen informants' may be viewed with
'skepticism when the nature of the criminal conduct alleged and the
relationship of the 'citizen' to that activity' may indicate the informant
is possibly associated in some manner with the individual informed against.
2 Wayne R. LaFave, Search & Seizure sec. 3.4(a), at 220-21 (3d ed. 1996).
The seminal case is State v. Berlin, 46 Wn. App. 587, 731 P.2d 548
(1987). In Berlin, the police officer's supporting affidavit for the
search warrant stated that the officer had received information concerning
a marijuana grow operation from three citizen informants who wished to
remain anonymous for fear of retribution. The affidavit went on to state
that the officer had checked and found that the informants had no criminal
background, came forward voluntarily, all appeared to be honest citizens,
and had given the officer their names and telephone numbers. Id. at 588-
89. The Berlin court noted that in all previous Washington cases involving
a citizen informant in which the court had ruled that the veracity prong
was satisfied, the citizen's identity had been revealed to the magistrate.
Id. at 590. Regardless, the Berlin court held that the reliability prong
was satisfied. The court emphasized that the informants had given their
names to the officer, he had checked their backgrounds, and the affidavit
contained a legitimate reason why each of them wished to remain anonymous.
Id. at 591.
More recently, in State v. Bauer, 98 Wn. App. 870, 991 P.2d 668,
review denied, 140 Wn.2d 1025 (2000), a citizen informant contacted the
Washington State 'marijuana hotline' to report a marijuana grow operation
at Mr. Bauer's residence. The informant expressed concern about the
manufacture and sale of illegal narcotics, an interest in the reward money,
and a desire to remain anonymous for fear of retaliation. In the affidavit
supporting the issuance of a search warrant, the sheriff's deputy stated
that he had confirmed that the informant had been a citizen of Washington
for over nine years, was a registered voter, and had no criminal history.
The deputy also supplied information regarding power records, which he
believed corroborated the informant's tip. After characterizing the
informant as a concerned citizen, the Bauer court held that the informant
was reliable. The information supplied by the deputy to the court
constituted 'sufficient background facts to support a reasonable inference
that the informant was credible and without motive to falsify.' Id. at
877.
We conclude that Deputy Kaley's affidavit establishes probable cause
for the issuance of the search warrant because it establishes the factual
basis for the first two informants' knowledge and their reliability. We
affirm Mr. Larson's conviction for unlawful possession of methamphetamine.
The 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.
Kurtz, J.
WE CONCUR:
Brown, C.J.
Kato, J.
1 Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d
637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d
723 (1964).
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