Opinion
No. 61452-5-I.
January 20, 2009.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-1-02926-0, Kenneth L. Cowsert, J., entered March 14, 2008.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
Following a bench trial on stipulated documentary evidence in Snohomish County Superior Court, Gabriel Matic was convicted of one count of possession of a controlled substance with intent to manufacture or deliver, in violation of RCW 69.50.401(1), and sentenced to 30 days in jail. Matic appeals, contending that the police lacked probable cause to obtain the search warrant authorizing the search of his apartment that led to his arrest. We disagree and affirm.
The State argues in the alternative that, even if the warrant application fails to establish probable cause, there is still sufficient evidence to affirm Matic's conviction. Because we uphold the issuance of the warrant, we need not address the State's argument about the sufficiency of the remaining evidence.
I
In April 2007, police detectives with the Special Operations Group (SOG), were investigating drug trafficking near Lynnwood, Washington. Using an informant who was the subject of another investigation and had agreed to cooperate, police set up two controlled buys on April 10 and 11 between the informant and a dealer who the informant knew as "Gabe." At 12:24 a.m. on April 12, shortly after the second controlled buy, the lead detective contacted a superior court judge by telephone to apply for a warrant to search Matic's apartment.
After being sworn, the detective testified that the informant had "conducted three controlled purchases" of narcotics during SOG investigations and further testified that the informant had "proven to be reliable through interviews and conversation [ sic] we have had." Describing the two controlled buys, the detective stated that he searched the informant before the buys and "located nothing of concern at the pre-buy searches" and before giving the informant prerecorded funds to be used in the controlled buys. He further testified that "[s]urveillance units maintained view" of the informant who met with "Gabe." The detective stated that "Gabe" arrived at both buy locations in a car that was registered to Matic. After each buy, the informant returned to the detectives with a purchased substance that field tested positive as marijuana. The officer also testified that "Matic was followed by SOG units from the deal done on April 11th [to his apartment building]" and that "Matic was seen leaving the area and returning to [his apartment building] from the deal." Surveillance officers observed Matic entering his apartment. Two other members of the unit "observed him coming from that apartment and returning to that apartment from the deal on April 11th."
The judge then issued a warrant authorizing a search of Matic's apartment. Upon executing the warrant, the police seized additional marijuana, cash (including prerecorded bills used in the controlled buys), and other drug paraphernalia. Matic later confessed to dealing marijuana.
After being charged, Matic moved to suppress all evidence obtained in the search on the same grounds that he advances here. The trial court denied the motion.
II
Matic contends that the warrant to search his apartment was invalid because the supporting affidavit did not establish probable cause. He does not argue that police recklessly or willfully omitted information from the affidavit. Instead, he advances two principal arguments: first, that the informant was unreliable; and second, that the application for the search warrant failed to establish a nexus between evidence of criminal activity and his apartment.
We review the issuance of a search warrant for abuse of discretion. State v. Maddox, 152 Wn.2d 499, 509, 98 P.3d 1199 (2004). In so doing, we give great deference to the issuing judge's determination of probable cause. State v. Chenoweth, 160 Wn.2d 454, 477, 158 P.3d 595 (2007). Accordingly, we will generally resolve doubts about the existence of probable cause in favor of the validity of the search warrant. Chenoweth, 160 Wn.2d at 477. Both on appeal and before the trial court at the suppression hearing, review of the issuance is "limited to the four corners of the affidavit supporting probable cause." State v. Neth, ___ Wn.2d ___, 196 P.3d 658, 661 (2008). Moreover, although we defer to the issuing judge's determination, the trial court's assessment of probable cause on a motion to suppress is a legal conclusion that we review de novo. State v. Chamberlin, 161 Wn.2d 30, 40-41, 162 P.3d 389 (2007).
A judge may issue a search warrant only upon a determination of probable cause. State v. Jackson, 150 Wn.2d 251, 264, 76 P.3d 264 (2003). Probable cause exists when the application sets forth "facts and circumstances sufficient to establish a reasonable inference that the defendant is involved in criminal activity and that evidence of the criminal activity can be found at the place to be searched." State v. Atchley, 142 Wn. App. 147, 161, 173 P.3d 323 (2007) (citing State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999)). The affidavit or sworn statement should be evaluated in a commonsensical manner rather than hypertechnically. Jackson, 150 Wn.2d at 265. The issuing judge "is entitled to make reasonable inferences from the facts and circumstances set out in the affidavit." Maddox, 152 Wn.2d at 505. But the supporting affidavit must be based on more than mere suspicion or personal belief that evidence of a crime will be found on the premises to be searched. Jackson, 150 Wn.2d at 265. Probable cause requires a nexus between criminal activity and the item to be seized and between the item to be seized and the place to be searched. Thein, 138 Wn.2d at 140 (quoting State v. Goble, 88 Wn. App. 503, 509, 945 P.2d 263 (1997)).
Matic first attacks the validity of the warrant on the ground that the informant was unreliable. He maintains that the warrant fails to set forth facts that establish the informant's veracity and basis of knowledge about criminal activity in his apartment as required by Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964). The Aguilar-Spinelli test requires the issuing judge to make a threshold determination about whether an informant has truthfully related facts (veracity) and whether an informant has personal knowledge of the facts (basis of knowledge). Matic is correct in asserting that the warrant application contains no statement that the informant personally knew that Matic kept narcotics in his apartment. Matic also rightly points out that the controlled buys away from Matic's apartment formed the initial basis for police suspicions that Matic was engaged in criminal activity.
Matic relies on State v. Steenerson, 38 Wn. App. 722, 688 P.2d 544 (1984), for the proposition that the informant's participation in controlled buys, by itself, fails to establish the informant's reliability. In Steenerson, police sought a warrant to search a residence on the basis that an informant observed the suspect in his home "giving controlled substances to other persons present." 38 Wn. App. at 723. The affidavit stated that the informant was reliable for having participated in controlled buys. Steenerson, 38 Wn. App. at 723. But the affidavit did not establish that the informant had made a controlled buy from the suspect at the residence for which police sought the warrant. The court affirmed the order suppressing evidence because the affidavit contained "merely a conclusory statement of the affiant and provides no factual basis for the magistrate to make an independent judgment of the informant's reliability." Steenerson, 38 Wn. App. at 726. Of particular concern in Steenerson was that an informant's participation in controlled buys under surveillance may show that the informant was cooperative but "indicates very little about the informant's credibility as a reporter of facts while not under supervision." 38 Wn. App. at 726. Later, the court in State v. Casto, 39 Wn. App. 229, 234, 692 P.2d 890 (1984), expounded on that concern, explaining that "[a]dditional circumstances surrounding the buy may be needed to prove the informant reliable, especially when the buy is not associated with the defendant."
Matic's reliance on Steenerson, however, is misplaced. Steenerson is inapposite here because this case does not involve a situation in which police sought to establish probable cause solely on an informant's statements alleging drug activity he observed while not under supervision. The application contains no statement that the informant knew of drugs in Matic's apartment or that the informant had a track record of reliability. Indeed, the State does not challenge the trial court's finding below that the lead detective's conclusory statements by themselves do not establish the informant's reliability. Instead, the police sought to establish probable cause that Matic was engaged in criminal activity by way of the controlled buys themselves, not any statements by the informant.
Contrary to Matic's assertion, the decision in Casto is pertinent here. In Casto, the informant reported to police that he could purchase drugs in the defendant's residence. Police then arranged for the informant to make a purchase with marked bills and searched the informant for drugs before the transaction. Police maintained surveillance on the informant before he entered the residence. Upon searching him when he emerged, police found drugs. The court in Casto explained that a controlled buy is sufficient to establish informant reliability and satisfy both prongs of Aguilar-Spinelli when an informant "goes in empty and comes out full" under controlled circumstances, that is, when police search him for contraband before the buy and observe him en route to the deal. Casto, 39 Wn. App. at 234. By returning from a controlled buy with narcotics, an informant "proves the truth of his earlier assertion and establishes his own credibility, at the same time obtaining information for the law enforcement investigation. Such an informant has a reason to be reliable." Casto, 39 Wn. App. at 235.
According to the warrant application, police in this case conducted controlled buys similar to the one approved of in Casto. The applicant "searched the operative and located nothing of concern at the pre-buy searches" and gave him prerecorded police funds to purchase marijuana. The applicant further stated that "[s]urveillance units maintained view of the operative who met with a subject identified only as `Gabe' during the deals." The suspect arrived in a car, which police confirmed was registered to Matic. After the buys, the informant turned over marijuana to the police. Because the application states that police searched the informant before the buys and maintained surveillance of him and that the suspected dealer, "Gabe," arrived in a car registered to Matic, it was reasonable for the issuing judge to infer that the informant obtained the marijuana from Matic. See Casto, 39 Wn. App. at 235; see also State v. Lane, 56 Wn. App. 286, 294, 786 P.2d 277 (1989) (noting that search and surveillance of informant reduced possibility that he obtained contraband elsewhere).
Matic also contends that the application is deficient because the police did not state that they performed a body cavity search on the informant to rule out the possibility that he had secreted drugs on his person. That argument is without merit. Matic cites no authority that police must perform a body cavity search on an informant to conduct a controlled buy that establishes probable cause. None of the cases he cites in support of his claim that it is widely known that persons involved in drug trafficking store items in their body cavities stands for the proposition that police must perform a body cavity search to effect a controlled buy. In contrast, courts have upheld warrants issued on affidavits that make no mention of body cavity searches but state only that police searched the informant and found no contraband. See, e.g., State v. Mejia, 111 Wn.2d 892, 895, 766 P.2d 454 (1989); State v. Maddox, 116 Wn. App. 796, 803, 67 P.3d 1135 (2003), aff'd, 152 Wn.2d 499, 98 P.3d 1199 (2004); Casto, 39 Wn. App. at 231. A warrant application that "does not expressly state that [the informant] was searched before he purchased [narcotics] . . . would probably not be sufficient on [its] own to support probable cause." State v. Taylor, 74 Wn. App. 111, 122, 872 P.2d 53 (1994). But here, the application expressly states that police searched the informant before he met with the suspect. Therefore, the application's failure to mention a body cavity search specifically does not render it deficient.
Matic's second principal argument concerns whether the application establishes a nexus between evidence of criminal activity and his apartment. Relying on State v. Thein, 138 Wn.2d 133, and State v. Goble, 88 Wn. App. 503, 945 P.2d 263 (1997), Matic argues there is no connection between his apartment and the buys. We disagree. The application states that police units followed Matic from the second controlled buy to his apartment building and observed Matic entering his apartment. He returned there after meeting with the informant, who obtained marijuana from Matic with prerecorded bills. The issuing judge could reasonably infer from those facts that Matic's home likely contained evidence of drug trafficking. See Mejia, 111 Wn.2d at 898; see also State v. G.M.V., 135 Wn. App. 366, 372, 144 P.3d 358 (2006), review denied, 160 Wn.2d 1024 (2007) (addressing nexus issue on ineffective assistance of counsel claim).
Matic's attempt to analogize this case to Thein misses the mark. In Thein, our Supreme Court invalidated a search warrant for a residence based on an affidavit containing generalizations about the common habits of drug dealers that lacked " any specific facts linking . . . illegal activity to the residence searched." Thein, 138 Wn.2d at 148 (emphasis added). In Thein, police raided a home and found evidence that suggested the identity of a drug supplier. They then obtained a warrant to search the supplier's separate residence based on affidavits stating that it was generally a common practice for traffickers to store drug-related items at their residences. Thein, 138 Wn.2d at 138-39. Unlike here, the affidavits at issue in Thein did not state that police had observed the suspect coming from or going to the raided home; they did not mention that police had conducted controlled buys from the suspect; nor did they recount surveillance of the suspect leaving his house to participate in a drug transaction and then leaving. The Thein court concluded that "the generalized statements contained in the affidavits . . . were, standing alone, insufficient to establish probable cause to search" the suspect's residence. Thein, 138 Wn.2d at 148. Here, the police do not allege probable cause on generalized statements about drug dealer's common habits without articulating a factual basis specifically tied to Matic. The detective's statements in the application did not require the issuing judge to leap from the fact that a person was dealing drugs from a location outside his home to the conclusion that the same person probably had drugs or evidence of drug dealing in his home without providing facts linking the controlled buy and Matic's residence. See Maddox, 116 Wn. App. at 804.
Nor is Goble controlling here. In that case, police obtained a warrant to search a suspected drug dealer's home after intercepting a package containing drugs at the suspect's post office box. Police stated in their affidavit that they planned to maintain surveillance on the package until the suspect retrieved it and returned to his house. The magistrate issued the warrant on the condition that it could be executed only if police observed the suspect take the package to his house. Goble, 88 Wn. App. at 506-07. On appeal, the court invalidated the warrant because the magistrate "had no information from which to infer, at the time he issued the warrant, that Goble would take the package from the post office to his house, or that the package would probably be found in the house when the warrant was executed." Goble, 88 Wn. App. at 512. The warrant for Matic's apartment does not suffer from the same temporal problem. The police applied for the warrant after they carried out two controlled buys and observed Matic return to his apartment from the second buy. Probable cause, here, does not hinge upon the fulfillment of some future condition as it did in Goble.
Similar to his argument about body cavity searches, Matic also argues that the application fails to establish a connection between his apartment and the controlled buys because it does not specify that Matic returned to his apartment after the second buy without making any intermediate stop. Thus, he asserts, a neutral judge could not reasonably infer that Matic returned directly home. However, the warrant application specifically set forth that Matic participated in consecutive controlled buys involving an exchange of marijuana for prerecorded bills and then returned to his apartment. Therefore, it was reasonable for the issuing judge to conclude that there would likely be evidence of criminal activity at Matic's apartment, and the judge did not abuse his discretion by so inferring.
Affirmed.