Opinion
No. 25350-3-III.
December 27, 2007.
Appeal from a judgment of the Superior Court for Okanogan County, No. 06-1-00070-4, Jack Burchard, J., entered June 30, 2006.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Brown and Stephens, JJ.
This is a search and seizure case. The judge refused to suppress evidence of drugs and evidence of a burglary despite the loss of the record supporting the district court judge's decision to issue the warrant and despite the issuance of the warrant for "any and all persons present." We conclude that the trial judge adequately reconstructed the record based on the testimony of the district court judge who authorized the search. And we need not pass on whether the description of those to be served was too general to pass constitutional muster because we conclude that the police had sufficient evidence of criminal activity by the defendant here to satisfy the requirements of probable cause. We therefore affirm the court's refusal to suppress the drug evidence, and we affirm the conviction.
FACTS
A confidential informant reported to the Brewster Police Department that a party involving drugs and underage drinking was ongoing in room 210 of the Apple Avenue Motel in Brewster, Washington. Officer Timothy Rieb telephoned District Court Judge David Edwards to apply for a warrant. Judge Edwards authorized the search and authorized Officer Rieb to print Judge Edwards' name on the signature line.
Officer Rieb and three other officers executed the warrant. They entered the motel room. Five men were present, including the defendant, Christian Sanchez Corrales. The room was littered with open bottles and cans of alcohol and smelled of alcohol. Officer Rieb knew Mr. Sanchez Corrales and knew that he was underage.
The officers also knew that a few days earlier a local jewelry store had been burglarized and a large amount of jewelry had been taken. They had suspected Mr. Sanchez Corrales. They noticed Mr. Sanchez Corrales wore two necklaces when they entered the motel room. The necklaces were similar to those stolen from the store.
Police then searched Mr. Sanchez Corrales. They found a bag of clear crystalline substance and a clear glass pipe that had residue with a chemical smell. Both tested positive for methamphetamine. Officer Rieb could also smell intoxicants on Mr. Sanchez Corrales's breath.
The police arrested Mr. Sanchez Corrales. And the State charged him by information with one count of possession of stolen property in the second degree and one count of possession of a controlled substance other than marijuana.
The recording of the telephonic warrant requested by Officer Rieb and authorized by Judge Edwards turned out to be inaudible. Mr. Sanchez Corrales then moved to suppress the evidence seized by the officers. The court held a hearing.
Judge Edwards testified. He remembered receiving a request for a telephonic warrant on March 21. He remembered that the request came from Officer Rieb. He remembered swearing Officer Rieb in. He remembered that Officer Rieb read him the affidavit. He remembered talking to him about the confidential informant, underage drinking, and a motel room. He remembered that he had concluded that the police showed probable cause. He remembered authorizing Officer Rieb to sign his name on the judge line of the warrant. He remembered Officer Rieb reading the search warrant back to him.
The trial court refused to suppress the evidence. A judge convicted Mr. Sanchez Corrales of one count of possession of stolen property in the second degree and dismissed one count of possession of a controlled substance other than marijuana.
DISCUSSION
Reconstruction of the Telephonic Warrant Mr. Sanchez Corrales contends that the detailed evidence necessary to reconstruct the flawed recording here was not sufficient to satisfy the requirements the court set out in State v. Myers. The State responds that the reconstruction here was proper and specifically that the trial judge's findings are supported by the testimony of Judge Edwards and the officer and those findings support the court's conclusion that the warrant was properly issued.
State v. Myers, 117 Wn.2d 332, 815 P.2d 761 (1991).
We review the trial court's findings of fact in a suppression motion for substantial evidence and its conclusions of law de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999), abrogated by Brendlin v. California, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007); State v. Hagen, 55 Wn. App. 494, 498, 781 P.2d 892 (1989).
The trial court here concluded that detailed and specific evidence supported the warrant. And that is what is required. Myers, 117 Wn.2d at 343. The judge found that Officer Rieb read the affidavit word for word to Judge Edwards and that neither could recall that any other information was provided. He then concluded that the telephonic warrant could be reconstructed.
Myers is easily distinguished. There, police searched the defendant's house pursuant to a telephonic warrant. Id. at 335. The tape recording of the discussion leading to the warrant failed. Id. The officer then wrote down what he recalled of the events that had taken place the preceding day. Id. The defendant moved to suppress evidence seized. Id. The judge who issued the warrant testified. He did not have an independent recollection of the events surrounding the issuance of the warrant. Id. He did not recall swearing the officer in. He did not recall the officer's or the defendant's name. He did not recall the details of the search. He did not recall the details supporting probable cause. Id. at 336.
The Myers court started with the general rule: "Generally, the courts overlook a violation of the rules governing telephonic affidavits, or allow parties to remedy noncompliance through reconstruction, if an irregularity does not impair review of the trial court's probable cause determination." Id. at 342. And, "[t]he court may allow the parties to reconstruct an entire sworn statement only if detailed and specific evidence of a disinterested person, like the magistrate or court clerk, corroborates the reconstruction." Id. at 343. Understandably, the Myers court concluded, given the testimony by the magistrate, that the necessary detailed and specific evidence had not been provided. Id. at 343-44.
To recite the facts in Myers is to explain why a contrary result is dictated here. Judge Edwards has an independent recollection of the events surrounding the issuance of the telephonic warrant, including who requested it and the substantive conversation that led to his finding of probable cause.
It is evident from the Myers opinion that the issue was whether a reviewing court could ascertain what the issuing magistrate relied on to conclude probable cause. Here, Judge Edwards testified that he talked to Officer Rieb about the confidential informant, underage drinking, and a motel room. He remembered finding probable cause and granting Officer Rieb's request for a telephonic warrant.
The court's conclusion that the telephonic warrant was properly reconstructed is supported by this record.
Constitutional Adequacy of Warrant Language Describing the Place to be Searched
Mr. Sanchez Corrales next argues that the warrant here does not meet the particularity requirements of the Fourth Amendment. It requires that a search warrant describe with particularity the place to be searched and the person or things to be seized. Here, he argues the warrant neither described nor stated in plain language the place to be searched. The State responds that the warrant is adequate, giving the appropriate deference to the magistrate and reading the warrant in a commonsense and a nontechnical manner.
We review a challenge to the sufficiency of a warrant de novo. State v. Perrone, 119 Wn.2d 538, 549, 834 P.2d 611 (1992). We decide these questions on a case-by-case basis applying general rules to the specific facts with an eye toward what is reasonable. State v. Helmka, 86 Wn.2d 91, 93, 542 P.2d 115 (1975). "`[W]hen a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.'" Id. (alteration in original). "A warrant is sufficiently particular if it identifies the place to be searched adequately enough so that the officer executing the warrant can, with reasonable care, identify the place intended." State v. Cockrell, 102 Wn.2d 561, 569-70, 689 P.2d 32 (1984). We resolve doubt in favor of the warrant's validity. State v. J-R Distribs., Inc., 111 Wn.2d 764, 774, 765 P.2d 281 (1988).
First, the events underlying this appeal all took place in Brewster, Washington. The warrant listed the place to be searched as room 210 of the Apple Avenue Motel. There is no suggestion by anyone that there is more than one Apple Avenue Motel in Brewster that might be easily confused with the one searched. Further, the officer executing the warrant was the officer who wrote the affidavit. The affidavit lays out a specific address and description:
APPLE AVENUE MOTEL; 16 HWY 97 N; BREWSTER WASHINGTON IN OKANOGAN COUNTY, STATE OF WASHINGTON. THE MOTEL IS A TWO-STORY TAN MOTEL WITH BROWN COLORED TRIM. THE MOTEL IS IDENTIFIED BY A LARGE SIGN OUTSIDE. THE PARKING LOT IS ACCESSIBLE FROM HWY 97 AND IT FACES THE MOTEL. THERE ARE A ROW OF TALL SHRUBS ABOUT 15 FEET HIGH ON THE NORTH EAST SIDE OF THE PARKING LOT. THE GARBAGE DUMPSTERS ARE GREEN AND ON THE NORTH SIDE OF THE MOTEL. . . . THE ROOM NUMBER OCCUPIED BY THE PERSONS IN QUESTION IS NUMBER 210.
Clerk's Papers at 75.
The description here easily meets the constitutional requirement to particularly describe the place to be searched. See Cockrell, 102 Wn.2d at 569-70. Constitutional Adequacy of the Language "Any And All Persons Present"
Mr. Sanchez Corrales next contends that the language "any and all persons present" is not sufficient to identify the persons to be seized with particularity. And he may be correct but we need not address that question. We have already concluded that the police had the right to enter and search the motel room. And once police entered the motel room, probable cause of Mr. Sanchez Corrales's involvement in the jewelry burglary was in plain view.
If a search warrant separately and distinctly describes two targets (such as a person and a place), and part of it is later determined to be defective, the court can sever the warrant and uphold the valid portion. State v. Halverson, 21 Wn. App. 35, 37, 584 P.2d 408 (1978). This is precisely what was done under similar facts in State v. Munoz Garcia. State v. Munoz Garcia, 140 Wn. App. 609, 623, 166 P.3d 848 (2007). The search portion of the warrant in this case was sufficiently particular (as discussed above) so that a portion of the warrant should be upheld.
Once the officers properly entered the room under the valid portion of the warrant, they encountered independent probable cause to arrest Mr. Sanchez Corrales. We assume without deciding that the seizure and search of Mr. Sanchez Corrales was warrantless. The State must then show that it falls within an exception to the usual requirement of a warrant. State v. Smith, 113 Wn. App. 846, 853, 55 P.3d 686 (2002); State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996). A search incident to a lawful arrest is an exception to the warrant requirement. State v. Johnson, 128 Wn.2d 431, 447, 909 P.2d 293 (1996). The trial court concluded that probable cause was present to arrest Mr. Sanchez Corrales for minor in possession of alcohol and because the stolen jewelry was in plain view on his person.
A police officer's determination of probable cause is a mixed question of law and fact. City of College Place v. Staudenmaier, 110 Wn. App. 841, 846, 43 P.3d 43 (2002); State v. Vasquez, 109 Wn. App. 310, 318, 34 P.3d 1255 (2001), aff'd, 148 Wn.2d 303, 59 P.3d 648 (2002). We first review the factual matters, i.e., the who, what, when, and where for substantial evidence. Staudenmaier, 110 Wn. App. at 846; State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994); Bokor v. Dep't of Licensing, 74 Wn. App. 523, 526-27, 874 P.2d 168 (1994). Substantial evidence requires a "`sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding.'" Staudenmaier, 110 Wn. App. at 846 (quoting Hill, 123 Wn.2d at 644). We then decide whether the facts support the legal conclusion — probable cause. Staudenmaier, 110 Wn. App. at 846. This is a legal question that we review de novo. Id.; see State v. Thorn, 129 Wn.2d 347, 351, 917 P.2d 108 (1996), overruled on other grounds by State v. O'Neill, 148 Wn.2d 564, 62 P.3d 489 (2003).
An arrest must be valid in order for evidence obtained from a search incident to arrest to be admissible. State v. Davis, 35 Wn. App. 724, 726, 669 P.2d 900 (1983). To be valid, an arrest must be supported by probable cause. RCW 10.31.100; State v. Bradley, 105 Wn. App. 30, 39, 18 P.3d 602, 27 P.3d 613 (2001). Probable cause requires that the State show facts and circumstances known to the arresting officer that are sufficiently trustworthy to cause a reasonable person to believe that an offense has been committed. State v. Harrell, 83 Wn. App. 393, 399, 923 P.2d 698 (1996).
Here, the officers entered the motel room and immediately identified open alcohol containers as well as the smell of intoxicants in the room. Officer Rieb knew Mr. Sanchez Corrales from previous encounters and knew him to be underage. Officer Rieb also knew Mr. Sanchez Corrales was a suspect in a recent burglary. Mr. Sanchez Corrales wore jewelry matching the description of the stolen property. It was in plain view.
The plain view doctrine is one of the exceptions to the warrant requirement. State v. Duncan, 146 Wn.2d 166, 171-72, 43 P.3d 513 (2002). "`Under the plain view doctrine, an officer must: (1) have a prior justification for the intrusion; (2) inadvertently discover the incriminating evidence; and (3) immediately recognize the item as contraband.'" State v. Goodin, 67 Wn. App. 623, 627-28, 838 P.2d 135 (1992) (quoting Myers, 117 Wn.2d at 346).
Here, the officers had prior justification for the intrusion because the portion of the warrant authorizing the search of the motel room is valid. See Halverson, 21 Wn. App. at 37. The officers entered the room and saw the jewelry around Mr. Sanchez Corrales's neck. Officer Rieb recognized the jewelry as being similar to the jewelry that had been stolen, and he knew that Mr. Sanchez Corrales was a suspect in the burglary.
All three elements of the plain view exception are then met in this case. Mr. Sanchez Corrales's arrest was valid. So any search of his person subject to that arrest does not violate the Fourth Amendment. See Johnson, 128 Wn.2d at 447.
We affirm the trial judge's refusal to suppress the evidence here. And we affirm the conviction.
A majority of the panel has determined that 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.
BROWN, J. and STEPHENS, J., concur.