Opinion
No. 59113-4-I.
April 21, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-06069-3, Andrea A. Darvis, J., entered October 9, 2006.
Affirmed by unpublished per curiam opinion.
Appellant Stephanie Marinoff contends the trial court erred when it denied her motion to suppress morphine found during a search pursuant to warrant. The affidavit in support of the warrant details confidential informants' personal observations of an ongoing drug distribution operation involving appellant's home and a neighboring house. As the warrant was supported by probable cause, there was no basis for suppression. We affirm.
Police obtained a search warrant authorizing the search of two adjacent residences in Auburn. The warrant authorized the seizure of methamphetamine; any evidence relating to its sale or manufacture; any weapons located in the residences; and the seizure of two individuals, Leitu J. Peo and "Marcus."
Marinoff resided in one of the houses identified in the warrant. While searching that residence, officers found a safe which they opened. Inside, the officers found Marinoff's name on documents of dominion and control and a prescription bottle with the label scratched off. The bottle was later determined to contain morphine.
The State charged Marinoff with unlawful possession of morphine. Marinoff moved to suppress the evidence seized from her residence. The motion was denied. Marinoff was convicted in a bench trial on stipulated facts and received a 30-day sentence. Marinoff appeals.
The trial court did not enter findings of fact and conclusions of law for the suppression hearing or the trial until after Marinoff filed this appeal. Marinoff assigns error to the belated entry of findings and conclusions. Because Marinoff has not demonstrated any prejudice arising from the belated entry of findings, reversal is not warranted. State v. Brockob, 159 Wn.2d 311, 343, 150 P.3d 59 (2006).
Marinoff contends the affidavit supporting the search warrant does not establish probable cause for the search. An affidavit is sufficient to establish probable cause for a search if it contains facts from which an ordinary, prudent person would conclude that a crime had occurred and evidence of the crime could be found at the location to be searched. State v. Stone, 56 Wn. App. 153, 158, 782 P.2d 1093 (1989). The affidavit in support of the search warrant must be based on more than suspicion or mere personal belief that evidence of the crime will be found on the premises searched. State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002). The issuing magistrate's determination of probable cause is reviewed for abuse of discretion and is given great deference by the reviewing court. All doubts are resolved in favor of the warrant's validity. Maddox, 152 Wn.2d 499, 509, 98 P.3d 1199 (2004).
To establish probable cause for issuance of a search warrant based upon an informant's tip detailed in an affidavit, the affidavit must demonstrate the informant's basis of knowledge and veracity. Vickers, 148 Wn.2d at 112. Marinoff contends the affidavit did not establish the necessary basis of knowledge for the statements made by the confidential informants. To satisfy the basis of knowledge part of the test, the informant must declare that he or she personally has seen the facts asserted and is passing on first-hand information. State v. Jackson, 102 Wn.2d 432, 437, 688 P.2d 136 (1984).
Here, the affidavit supporting the warrant included information provided by two separate confidential police informants about drug-related activities at the two houses. Although the affidavit contained some statements that arguably were not based on the informants' personal observations, other statements that were based on their personal observations are sufficient.
Both informants confirmed Peo's identity based on jail booking photographs. Court records showed that Peo's address was at one of the houses. Both informants told police that they had seen Peo and several of his associates at the two residences with pistols. Both informants said they were present when Peo pulled a gun on someone and both reported seeing Peo assault people.
The first informant attempted two controlled buys of methamphetamine. During the first buy, the informant entered Peo's house and purchased $40 worth of methamphetamine from "Marcus." During the second attempt to purchase methamphetamine, the informant told police he was "made" to go into the basement of the adjacent residence. The informant said both Peo and Marinoff were present. The informant said Peo, a convicted felon, had a gun in his waistband and that both Peo and Marinoff accused the informant of being a snitch in an unrelated shooting. Marinoff told the informant that she did not sell dope and that she did not have any dope for the informant. Meanwhile, police, who were observing the house, saw the informant walk between the two residences and saw several men walking around outside. Approximately 45 minutes after the informant went in, police saw the informant come back out between the two residences. The informant was escorted off the property by an adult male.
The facts that were based on the informant's first-hand information established that drugs were being sold at Peo's house, that Peo and his associates had been seen in both houses carrying pistols and assaulting people, and that Peo had come to Marinoff's residence to threaten the informant while the informant was engaged in an attempted drug transaction. These facts, together with the police observations of the shared driveway between the houses, the informant walking between the houses, and the other men walking around the property, established probable cause to believe that criminal activity was occurring at both residences.
Marinoff also claims the affidavit was insufficient because it failed to establish that she was probably involved in criminal activity. But Peo and "Marcus," not Marinoff, were the individuals whose seizure the warrant authorized. Because Marinoff was not the named target of the search warrant the affidavit did not need to establish that she was personally involved in criminal activity. Officers investigated Marinoff only after they found contraband associated with her name in plain view. If, in the course of an otherwise lawful search, police happen across some item for which they had not been searching and the incriminating character of the item is immediately recognizable, that item may be seized. State v. Hudson, 124 Wn.2d 107, 114 874 P.2d 160 (1994). Here, the morphine was found in a locked safe that the police were authorized to search. The incriminating character of the bottle was immediately recognizable because the prescription label was scratched off. It was the evidence discovered in plain view, not any previous criminal activity, that led to Marinoff's arrest.
Finally, Marinoff claims the affidavit for search warrant did not establish the requisite link between her residence and evidence of criminal activity. In addition to a nexus between criminal activity and the item to be seized, probable cause requires a nexus between the item to be seized and the place to be searched. State v. Goble, 88 Wn. App. 503, 509, 945 P.2d 263 (1997). Marinoff relies on Figert v. State, 686 N.E. 2d 827 (Ind. 1997). In Figert, a probable cause affidavit described an undercover officer making controlled drug purchases in two of three manufactured homes located in close proximity to each other. The Indiana Supreme Court held there was no probable cause to search the third home, where no criminal activity was alleged to have occurred.
Here, the issuing magistrate had specific information giving rise to a reasonable inference that both properties were being used for the same criminal purposes. Although the controlled purchase took place only in Peo's house, the residents went freely between the two residences. The confidential informant was made to go into the basement of Marinoff's residence and was interrogated by Marinoff and Peo, a resident from the other house. Peo, who has an extensive criminal history, was illegally carrying a firearm on his person at the time.
Also, the affidavit noted that the homes shared a common driveway that was used by occupants of both residences. Officers observed several men walking around both properties during the second attempted drug purchase. It was reasonable to infer that evidence of methamphetamine and firearms would be found in Marinoff's house as well as Peo's.
Because there was probable cause to search Marinoff's house, the trial court did not err in denying the motion to suppress.
Affirmed.