Opinion
No. 29584-9-II.
Filed: April 13, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 02-1-03720-0. Judgment or order under review. Date filed: 10/31/2002. Judge signing: Hon. Kitty-Ann Van Doorninck.
Counsel for Appellant(s), Lise Ellner, Attorney at Law, PO Box 2711, Vashon, WA 98070-2711.
Counsel for Respondent(s), John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Kevin Michael Bickle appeals his convictions for possessing and manufacturing methamphetamine and marijuana. We affirm.
On the night of August 8, 2002, Mary Wigley, Bickle's ex-girlfriend, reported to the Thurston County Sheriff's Office that even though she had a no-contact order against Bickle, he had left threatening messages on her answering machine. She also reported that Bickle was growing marijuana and manufacturing methamphetamine at his house on Ainsworth Street in Tacoma.
The next morning, Steve Hamilton, a Thurston County detective, thought he had probable cause to arrest Bickle for violating a no-contact order and for failing to register as a sex offender. Hamilton drove to Tacoma to arrest Bickle. Pierce County detective Nathan Clammer arrived to assist and, because Bickle was under supervision by the Department of Corrections (DOC), one of its officers also arrived.
The officers observed that Bickle's house was surrounded by a six-foot high chain-link fence with two gates, both padlocked. Bickle's vehicle was in the driveway. Clammer called the residence, but no one answered. Clammer and the DOC officer then jumped the fence `with the intention of arresting Bickel [sic].' They knocked on the front door, identified themselves, then knocked on another door. No one responded, so they came back outside the fence. While inside the fence, they smelled a strong chemical odor and saw drug paraphernalia.
Clerk's Papers (CP) at 24.
The officers applied for a Pierce County search warrant. Simultaneously, Thurston County officers applied for an arrest warrant based on Bickle's failure to comply with sex offender registration requirements. Both warrants were granted.
Sergeant Shawn Stringer and Detective Terry Krause, both of the Tacoma Police Department, also arrived to assist. Stringer waited for both warrants because `there was no rush.' After trying to contact Bickle for about five hours, the officers broke the door down, and Stringer, Krause, and a meth lab team entered the residence. Once inside, the officers observed a marijuana grow operation and meth lab paraphernalia.
1 Report of Proceedings (RP) (3.6 hearing, Oct. 22, 2002) at 34.
The team searched the entire house but did not find Bickle. Finally, they determined that he was in a crawl space leading to the attic. They tried to flush him out with gas but eventually had to cut a hole in the roof. He was arrested and taken to jail.
On August 12, 2002, the State charged Bickle with unlawfully manufacturing methamphetamine and unlawfully manufacturing marijuana. On October 22, 2002, the State added a count of unlawfully possessing methamphetamine and a count of unlawfully possessing marijuana.
Bickle filed a motion to suppress, and a CrR 3.6 hearing was held. Stringer testified that if the officers had not entered the house on the search warrant, they would have entered on the arrest warrant, which authorized entry for purposes of taking Bickle into custody. Upon entering, they would have seen the meth lab, stopped, and sought a search warrant. Stringer added that they were making `all efforts possible to take [Bickle] into custody' because he `was enough of a problem, and the victim was fearful enough for him to carry out his threats.' Krause testified that when officers discover a meth lab while making an arrest, their standard procedure is to stop and obtain a separate search warrant.
1 RP at 42.
The trial court denied the motion to suppress for two reasons. First, it found that Clammer and the DOC officer had unlawfully jumped the fence, and that the observations they had made while first inside the fence should be excised from the warrant. It concluded, however, that `if I eliminate the portions of the search warrant . . . having to do with [Clammer's] . . . observations after he jumped over the fence, I believe that there's still probable cause for the search warrant.' Second, the trial court found that even if the search warrant was invalid, the officers inevitably would have discovered and seized the evidence in question; the arrest warrant authorized entry into the house, and the meth lab and marijuana were in plain view inside the house. On November 22, 2002, the trial court filed written findings of fact and conclusions of law.
1 RP at 54.
On October 23, 2002, the court convened a jury trial. On October 29, 2002, the jury found Bickle guilty as charged. After sentencing, he filed this appeal.
Preliminarily, Bickle contends that he is entitled to a dismissal of all counts because the trial court failed to enter written findings and conclusions in timely fashion. A conviction will not be reversed for delay in entering written findings and conclusions unless the defendant shows prejudice or that `the findings and conclusions were tailored to meet the issues presented' on appeal. Given that Bickle shows neither prejudice nor tailoring, this contention fails.
State v. Gaddy, 114 Wn. App. 702, 705, 60 P.3d 116 (2002), review granted, 150 Wn.2d 1001 (2003).
Two main questions arise on appeal. One is whether the affidavit for the search warrant showed probable cause after the trial court excised information obtained by Clammer's initial intrusion inside the fence. The other is whether the officers inevitably would have discovered the meth lab and marijuana grow by serving the arrest warrant. If the answer to either is yes, we should affirm.
I.
The first question has two aspects. (A) Did the magistrate have discretion to credit Wigley's information? (B) Did the affidavit for the warrant show probable cause after the trial court excised part of it?
A.
When an affidavit is based on information from a citizen informant, the trial court must determine (1) whether the informant has a sufficient basis of knowledge and (2) whether the informant is credible. A citizen informant not involved in the criminal subculture can be considered reliable if, as here, he or she is identified in the affidavit. Wigley's information came from her own observations and from Bickle himself. She was an identified citizen informant. The magistrate had discretion to believe her.
State v. Tarter, 111 Wn. App. 336, 340, 44 P.3d 899 (2002).
State v. Northness, 20 Wn. App. 551, 557-58, 582 P.2d 546 (1978).
B.
A search warrant must be based on probable cause. Probable cause exists if the affidavit for the warrant shows facts and circumstances sufficient to establish that the defendant is probably involved in criminal activity, and that evidence of the crime will probably be found in the place to be searched. An affidavit is evaluated in a common sense manner, and doubts are resolved in favor of the warrant.
State v. Gore, 143 Wn.2d 288, 296, 21 P.3d 262 (2001).
State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002); State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999).
State v. Jackson, 150 Wn.2d 251, 265, 76 P.3d 217 (2003).
Without its excised parts, the affidavit in issue here revealed that when Wigley had talked to Bickle on the phone two days earlier, he had told her that he had a marijuana and a grow operation in his house on Ainsworth Street in Tacoma. The affidavit also revealed that Wigley had dated Bickle for 8.5 years, and that she had observed him selling and manufacturing meth during that entire period. If the magistrate chose to believe Wigley, as he had discretion to do, these facts made it probable that Bickle had drugs in his home. There was probable cause.
II.
The second central question is whether, if the search warrant was invalid, the police would inevitably have discovered drugs while serving the arrest warrant. The inevitable discovery doctrine applies `only when the State can prove that the evidence would have been inevitably discovered under proper and predictable investigatory procedures.' The officers in this case were intent on arresting Bickle because they thought he was dangerous to Wigley. They waited outside his home until they had an arrest warrant and a search warrant. If they had not had the search warrant, they inevitably would have entered under the arrest warrant. They then would have seen meth and associated items in plain view, and they would lawfully have seized such items. Inevitably, they would have discovered the evidence Bickle seeks to suppress, and thus that evidence was properly admitted.
Bickle does contest the arrest warrant through counsel, but he does pro se. We will address the point in Section III.
State v. Richman, 85 Wn. App. 568, 577, 933 P.2d 1088, review denied, 133 Wn.2d 1028 (1997); see also State v. Warner, 125 Wn.2d 876, 889, 889 P.2d 479 (1995) (inevitable discovery doctrine applies when there is `a reasonable probability that evidence in question would have been discovered other than from the tainted source').
Texas v. Brown, 460 U.S. 730, 737, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); State v. Seagull, 95 Wn.2d 898, 901-02, 632 P.2d 44 (1981).
III.
Pro se, Bickle urges several additional errors. He argues that the arrest warrant was invalid because in June 2002 he had been pulled over for speeding but not then arrested. He does not say why this is true, and we do not know why it would be. This argument fails.
Bickle argues that exigent circumstances are needed to justify a warrantless entry, and that none existed here. We agree with both propositions, but neither affects the analysis set forth above. There was only one warrantless entry, and neither the trial court nor this court has considered any of the information it produced.
Bickle argues that his offender score was wrong because his convictions involved the `same criminal conduct.' He did not raise the issue in the trial court, where defense counsel affirmatively agreed to his standard range at sentencing. He may not raise it now for the first time on appeal, and even if he could, we lack the information necessary to decide it.
Statement of Additional Grounds for Review at 1.
See State v. Nitsch, 100 Wn. App. 512, 519, 997 P.2d 1000, review denied, 141 Wn.2d 1030 (2000) (`because Nitsch not only failed to raise this issue below but affirmatively agreed to the standard range on both counts based on an offender score of two, he is not entitled to raise this issue for the first time in this court'); see also In re Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002); In re Connick, 144 Wn.2d 442, 462, 28 P.3d 729 (2001).
Cf. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
Any remaining arguments are meritless or need not be reached.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and QUINN-BRINTNALL, C.J., concur.