Opinion
No. 53478-5-I
Filed: March 14, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-07762-0. Judgment or order under review. Date filed: 11/21/2003. Judge signing: Hon. Carol A. Schapira.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Corey Marika Endo, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Leonard Ray Kinsey(info Only), Wcc, Doc 255190, W. 2321 Dayton Airport Rd. P.O. Box 900, Shelton, WA 98584.
Counsel for Respondent(s), David W. Gross, King Co Pros Office, W554, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
OPINION
Police officers obtained a search warrant to search the home of Leonard Kinsey to look for a gun connected to a murder. During the search, police officers found drugs and a gun. Kinsey admitted both were his. Following a stipulated trial, Kinsey was convicted of unlawful possession of a firearm and possession of a controlled substance. Kinsey appeals arguing the search warrant was not supported by probable cause. He also contends that because during the search of his home, police officers asked him a question without first advising him of his Miranda rights, his later admissions should have been suppressed. Finally, Kinsey claims the portion of his sentence requiring him to provide a DNA sample violates his constitutional rights. We reject his arguments and affirm. Search Warrant Probable cause
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The police obtained a warrant to search Leonard Kinsey's home based on the following information:
At approximately 2:30 a.m. on July 30, 2003, Troy Devin Hackett was found murdered in his car. The police recovered fingerprints in the car and identified them as belonging to Darlene Stroud.
Later the same morning, police received a call from Robbie Massey who said she had information about the crime. Police detectives interviewed Massey. She told them she was a prostitute and a drug user and that the night before, Hackett picked her up in his car at Denny Park. Hackett drove her to several places downtown where she purchased several rocks of cocaine for him. She and Hackett smoked some of the cocaine together. Then, they went to her apartment where Hackett paid her to perform oral sex. Massey said Hackett left her apartment at about 1:00 a.m. In the morning, while watching the news on television, she heard about the murder. She thought the victim was the person she had been with the night before. She was also concerned the police might find her fingerprints or DNA evidence in Hackett's car.
The detectives asked Massey if she knew Stroud. Massey said she knew both Stroud and her boyfriend, Leonard. She told the detectives that Stroud was also a prostitute and a drug user and that the couple sold drugs. Massey said she had purchased drugs from Stroud and Leonard twice that day. She told both of them about the murder.
The detectives then interviewed Stroud. She said Hackett had picked her up downtown on the night of murder. He gave her some money to buy cocaine. Stroud said she did not attempt to purchase cocaine. Instead, she took Hackett's money and left. Stroud estimated that Hackett picked her up at about 12:30 a.m.
During the interview with Stroud, the police verified that her boyfriend was Leonard Kinsey and verified the address where they resided together.
Detectives interviewed three friends of Hackett's who said Hackett usually carried a gun for self protection. They described the gun as a black revolver with `wood handles' and said Hackett kept it under the front seat of his car in a black zip-up attach` case. The police did not find a gun in Hackett's car.
A few days after the murder the police interviewed Massey again. She said she had been at Stroud and Kinsey's house a few days before the interview. While she was there, there had been a noise which sounded like someone coming up the stairs and Kinsey asked Stroud to retrieve his gun. Stroud reached behind the couch and pulled out a black zip-up attach` case. Kinsey opened it and pulled out a black revolver with `wood handles.' Massey said she had not seen Kinsey with a gun like that before.
The affidavit does not specify who initiated the second interview. The affidavit also states that Massey was interviewed on September 4, 2004, instead of August 4, 2004. This is apparently an error.
Based on a probable cause affidavit containing this information, the police obtained a search warrant to look for Hackett's gun at Kinsey's home. In his appeal, Kinsey argues the trial court abused its discretion in issuing the search warrant because it was not supported by probable cause.
A search warrant must be supported by probable cause, based on facts sufficient to establish a reasonable inference that criminal activity is occurring or contraband may be found at a specific location. An affidavit in support of a search warrant must include sufficient facts for a reasonable person to conclude that the suspect probably is involved in criminal activity and that evidence of a crime is likely to be found at the place to be searched.
U.S. Const. amend. IV; Wash. Const. art. I, sec. 7; CrR 2.3(c); State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995); State v. Nordlund, 113 Wn. App. 171, 179, 53 P.3d 520 (2002).
Cole, 128 Wn.2d at 286.
We review a court's finding of probable cause for abuse of discretion. We read an affidavit in a common sense, nontechnical manner, resolving doubts in favor of the warrant and giving great deference to the issuing judge's determination.
State v. Anderson, 105 Wn. App. 223, 228, 19 P.3d 1094 (2001).
State v. Young, 123 Wn.2d 173, 195, 867 P.2d 593 (1994).
When the probable cause affidavit is based on an informant's hearsay, it must show the informant is probably trustworthy and has personal knowledge regarding the facts. Under Aguilar-Spinelli, the informant's statements are tested by the familiar two-pronged test, (1) credibility/reliability, and (2) basis of knowledge. If the affidavit fails to meet either prong, probable cause may still be established by corroborating investigation.
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).
Aguilar, 378 U.S. 108.
Young, 123 Wn.2d at 195.
Kinsey argues the affidavit failed to establish Massey's credibility. He points out that Massey had no established track record of providing reliable information to the police. He claims the information provided by Massey was not credible because of her interest in the murder investigation.
The basis of knowledge prong is uncontested.
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. When a citizen provides information on which a search warrant is issued, the State's burden of demonstrating credibility is less stringent. Citizen informants are presumptively reliable. Unlike the circumstances when a professional informant's "track record" needs to be examined, police are generally unable and need not demonstrate a citizen's veracity by his or her "track record" for supplying information.
State v. Northness, 20 Wn. App. 551, 556-57, 582 P.2d 546 (1978); State v. Ibarra, 61 Wn. App. 695, 699, 812 P.2d 114 (1991).
Northness, 20 Wn. App. at 556-57.
State v. Wakeley, 29 Wn. App. 238, 241, 628 P.2d 835 (1981).
Ibarra, 61 Wn. App. at 699 (quoting State v. Jackson, 102 Wn.2d, 432, 437, 688 P.2d 136 (1984)).
The necessary showing of reliability is also relaxed if the identity of an informant is known as opposed to being anonymous. This is so because there is less risk of the information being a rumor or irresponsible conjecture which may accompany anonymous informants. An identified informant's report is also less likely to be marred by self-interest. Kinsey argues that Massey should be treated as a professional, rather than a citizen informant, because she is a prostitute, a drug addict, and she contacted the police out of her own self-interest to avoid becoming a target of the murder investigation. Kinsey cites no authority which supports this proposition.
See State v. Huft, 106 Wn.2d 206, 211, 720 P.2d 838 (1986).
Northness, 20 Wn. App. at 557.
Northness, 20 Wn. App. at 557.
In State v. Northness, a case Kinsey relies on, the court considered an affidavit containing information supplied by a woman about marijuana she found in her apartment she shared with two others. The informant was identified to both police and the magistrate issuing the search warrant. The Northness court upheld the warrant because the information was sufficiently detailed and because an identified citizen informant does not raise the specter of the "anonymous troublemaker." In upholding the search warrant, however, the court noted:
Northness, 20 Wn. App at 557 (quoting United States v. Darensbourg, 520 F.2d 985 (5th Cir. 1975)).
we are not unmindful of the possibility that [the informant] may have been motivated by self-interest, i.e., a desire to exculpate herself from criminal liability as co-possessor of the premises wherein the marijuana was kept. However, the fact that an identified eyewitness informant may also be under suspicion in this case because of her initial contact has been held not to vitiate the inference of reliability raised by the detailed nature of the information and the disclosure of the informant's identity.
Northness, 20 Wn. App. at 558 (citations omitted).
Northness, 20 Wn. App. at 558 (citations omitted).
Likewise, the fact that Massey was concerned about whether her fingerprints might be found in Hackett's car does not negate the inference of reliability provided by her statements. In fact, in initially seeking out the police Massey did nothing more than voluntarily come forward and admit to her own criminal activity. She did not contact the authorities in order to cast suspicion onto anyone else. An informant's statement against penal interest to a police officer is considered to be an indicia of reliability.
See State v. Estorga, 60 Wn. App. 298, 304, 803 P.2d 813 (1991); see also Jackson, 102 Wn.2d at 437.
Moreover, several details provided by Massey were corroborated. For example, Massey told the police that Stroud was also a prostitute and a drug user, that she lived with her boyfriend, Kinsey, and she told the detectives where the couple lived. All of these details were corroborated by Stroud. And, Massey's description of the gun and case she saw at Kinsey's home was corroborated by the description of Hacket's gun provided by three independent witnesses.
Kinsey claims that the most one could conclude from the affidavit is that Kinsey and the victim owned guns matching the same generic description, but no reasonable person could conclude that evidence related the murder would be found at Kinsey and Stroud's residence. But viewed in its entirety, the affidavit establishes the following facts from which a reasonable person could conclude that Hackett's gun was likely to be found at Kinsey and Stroud's residence: (1) Hackett was murdered in his car and the weapon he routinely kept in his car was missing; (2) Stroud's fingerprints were found in the car and she confirmed being with Hackett shortly before he was murdered; and (3) Massey reported seeing a gun at Kinsey and Stroud's house which matched the description of Hackett's gun and the case he kept it in. The judge's decision to issue the search warrant based on the probable cause affidavit was not an abuse of discretion.
Post-Miranda Statements
At approximately 4:30 a.m., about a week after Hackett's murder, police officers executed the search warrant at Kinsey's home. They entered the house and two officers encountered Kinsey in a small basement bedroom. An officer ordered Kinsey to lie on the floor and held him at gunpoint while the other officer ensured there were no other people in the room. Then, while placing him in plastic handcuffs, one of the officers asked Kinsey if he had any knives or needles on his person, and Kinsey said he did not. The officer asked Kinsey if there were any guns in the room. Kinsey said there was a handgun a few feet away near the nightstand.
After retrieving the gun, an officer advised Kinsey of his Miranda rights. Kinsey acknowledged that he understood his rights and waived them. The officers asked Kinsey if the bedroom was his, and he said it was. They asked if there were drugs in the room and Kinsey confirmed that there were. Kinsey said both the drugs and the gun belonged to him.
Several hours later, two different detectives interviewed Kinsey at the police station. They advised Kinsey of his Miranda rights. He again acknowledged that he understood his rights and agreed to talk. In a more detailed interview, Kinsey admitted that he owned the gun and the drugs. After a CrR 3.5 hearing, the trial court ruled that Kinsey's first statement about the presence and location of the gun in the bedroom before he was advised of his Miranda rights was involuntary and inadmissible, but all of Kinsey's subsequent statements were voluntary and admissible.
Kinsey contends the trial court should have suppressed his post-Miranda statements because they were the fruits of his unwarned admission. He argues that Oregon v. Elstad compels suppression of his post-Miranda statements.
470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985).
In Elstad, police asked the defendant if he knew why the police were at his house and he responded that he did not. The police then told Elstad they suspected he had some involvement in a recent burglary. Elstad volunteered that he was at the burglary. The police escorted Elstad to the police station and gave the Miranda warnings to him. He acknowledged these rights and waived them. Elstad gave an incriminating written statement. At trial, Elstad moved to suppress his oral statement and signed written confession, arguing that his oral statement tainted his confession because the signed confession was a fruit of the poisonous tree.
The Supreme Court held that, although a Miranda violation made the first statement inadmissible, the post-warning statements could be introduced against the accused because `neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression.' The Court stated:
Elstad, 470 U.S. at 308.
It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.
Elstad, 470 U.S. at 309.
Absent improper or coercive tactics, a presumption that statements given after a proper administration of Miranda warnings were compelled was not warranted. On the other hand, in a case where the unwarned statement is involuntary, the court must examine whether the taint dissipated through the passage of time or a change in circumstances.
Elstad, 470 U.S. at 314.
Elstad, 470 U.S. at 310.
Thus, even assuming the trial court was correct in ruling that Kinsey's initial statement about the location of the gun was a violation of the Miranda rule and inadmissible, his subsequent statements were admissible under Elstad. At least with respect to Kinsey's confession at the police station, there was a significant lapse of time, a change in identity of the interrogators, and a change of place in the interrogation. All of these factors lead to the conclusion that Kinsey's later voluntary admissions were not tainted by his initial unwarned statement. It would not further the purpose of Miranda of protecting the constitutional privilege against compelled self-incrimination to exclude Kinsey's voluntary admissions under these circumstances.
In Washington, `it is not a violation of either the letter or spirit of Miranda for police to ask questions which are strictly limited to protecting the immediate physical safety of the police themselves and which could not reasonably be delayed until after warnings are given.' State v. Lane, 77 Wn.2d 860, 863, 467 P.2d 304 (1970); see also State v. Spotted Elk, 109 Wn. App. 253, 260, 34 P.3d 906 (2001); New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984) (establishing the public safety exception to the Miranda rule). We note that the State has not cross appealed and we are not asked to revisit the trial court's ruling that Kinsey's statement in response to the officer's question about the presence of a weapon in the room was in violation of Miranda and therefore inadmissible.
Kinsey also relies on the recent U.S. Supreme Court plurality decision in Missouri v. Seibert, U.S., 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004), for support.27 Where a fragmented Court decides a case and no single rationale enjoys the assent of five Justices "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976)). The holding that emerges from this split decision is at least in a situation where Miranda warnings are deliberately withheld in a two-step interrogation technique, the voluntariness inquiry of Elstad has been replaced by a presumption of exclusion where the court uses a multifactor test looking at the change in time, place and circumstances from the first statement to the second. But where the initial violation of Miranda is not the product of a deliberate strategy to undermine Miranda, admissibility is still governed by Elstad. There is no need to analyze the admissibility of Kinsey's statements under Seibert.
DNA Sample
Kinsey contends the portion of his sentence requiring him to provide a biological sample for DNA identification violates his Fourth Amendment right against unreasonable searches. This argument was rejected in, and is controlled by, our decision in State v. Surge, 122 Wn. App. 448, 94 P.3d 345 (2004).
The Ninth Circuit has also recently rejected a Fourth Amendment challenge to a requirement to provide a biological sample for DNA identification. United States v. Kincade, 379 F.3d 813 (9th Cir. 2004).
We affirm.
KENNEDY and BECKER, JJ., Concur.