Opinion
No. 23024-4-III.
December 7, 2006.
Appeal from a judgment of the Superior Court for Grant County, No. 04-1-00014-1, Kenneth L. Jorgensen, J., entered May 18, 2004.
Counsel for Appellant(s), Cece Lana Glenn, Attorney at Law, 1309 W Dean Ave Ste 100, Spokane, WA, 99201-2018.
Counsel for Respondent(s), Albert H Lin, Grant County Prosecutors Office, Law Justice Center, Po Box 37, Ephrata, WA, 98823-0037.
Teresa Jeanne Chen, Grant County Prosecutors Office, Po Box 37, Ephrata, WA, 98823-0037.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Kato and Kulik, JJ.
Jeremy D. McCurdy challenges the validity of the search warrant that led to his convictions for multiple drug offenses. He contends the affidavit supporting the warrant does not establish the basis of the informant's knowledge or his veracity. He also contends that the warrant affidavit failed to show a nexus between the place to be searched and the defendant. We conclude that the affidavit is sufficient and that the trial court properly denied Mr. McCurdy's motion to suppress.
FACTS
A judge convicted Jeremy McCurdy following a bench trial for possession of methamphetamine, use of drug paraphernalia, and possession of less than 40 grams of marijuana. The convictions were based on physical evidence and Mr. McCurdy's admissions when police executed the search warrant for his home. The warrant affidavit was based on information obtained from a confidential informant the previous day.
The informant reported ongoing criminal activity at an apartment in Ephrata, Washington, by people other than Mr. McCurdy. The informant's identity was known but not disclosed. The informant's basis for that knowledge was his or her personal knowledge and personal observations. The informant reported that methamphetamine and other drugs were being used and distributed and that pornography was being produced by videotaping underage girls performing sex acts in exchange for drugs.
The informant had bought methamphetamine at the address within the previous week. The informant did not witness sexual activity. But the informant said that the named suspects bragged about it and showed the informant a room with a camera installed above the bed and attached to a computer. The informant had personally seen young girls leaving the apartment crying and disheveled. On one occasion, young females told the informant they went to the apartment to get cigarettes; the informant inferred that they were underage.
The informant gave details about the interior of the apartment and the names of several people who appeared to be in possession of the premises. The officer signing the affidavit knew some of these people from other drug investigations. The informant also named a woman who said she helped procure young girls. Again, the officer signing the affidavit knew independently that this woman was associated with one of the men the informant had named.
The informant also provided descriptions and owner's names of vehicles often seen outside the residence. One of these belonged to Jeremy McCurdy. Police knew that Mr. McCurdy was involved in drug-related activities.
The judge who issued the warrant questioned the officer signing the affidavit about the informant's veracity. The judge then added language to the affidavit that stated the confidential informant was a first-time informant, and the informant's information about drug distribution was independently corroborated by the affiant. The judge also noted that no details provided by the confidential informant were contrary to the affiant's independent information. The informant was willing to be named to the issuing magistrate, just not publicly.
Mr. McCurdy was in the apartment when police executed the warrant a couple of days later. He told them the apartment was his. He said he owned the dresser where methamphetamine and marijuana were found. The State charged Mr. McCurdy with possession of methamphetamine, possession of marijuana, and use of drug paraphernalia.
Mr. McCurdy moved to suppress both the physical evidence and his statements based on insufficiency of the search warrant affidavit. Defense counsel produced police reports prepared after the warrant was issued. They showed that Mr. McCurdy, not the persons named by the confidential informant, rented the apartment. Counsel argued that this mistake fatally compromised the informant's veracity and reliability. And he argued that the warrant was defective for lack of any nexus between the defendant and the place to be searched because Mr. McCurdy was not named in the affidavit.
The suppression judge found the warrant affidavit was facially sufficient. The judge also ruled that no nexus was required between the place to be searched and the defendant. And he denied Mr. McCurdy's motion to suppress.
DISCUSSION
Sufficiency of the Affidavit to Support the Warrant
Mr. McCurdy challenges the sufficiency of the warrant affidavit on three grounds: inadequate showing of the informant's basis of knowledge, inadequate showing of the informant's veracity, and no showing of a nexus between Mr. McCurdy and the place to be searched. The trial court here correctly concluded that the warrant was valid and properly refused to suppress the drug evidence.
We review an issuing magistrate's determination of probable cause to issue a search warrant for abuse of discretion. State v. Condon, 72 Wn. App. 638, 642, 865 P.2d 521 (1993). We consider only the information available to the magistrate at the time the warrant was issued. Id.; State v. Wible, 113 Wn. App. 18, 21-22, 51 P.3d 830 (2002).
We give great deference to the magistrate's determination of probable cause. Wible, 113 Wn. App. at 21-22.
A warrant is valid "if a reasonable, prudent person would understand from the facts contained in the officer's affidavit that a crime has been committed and that evidence of the crime is located at the place to be searched." Id. In reviewing the warrant, we ask whether all the facts and circumstances in the affidavit would give "a fair-minded, independent judicial officer" good reason to issue a warrant. State v. Patterson, 83 Wn.2d 49, 52, 515 P.2d 496 (1973). We do not view the affidavit in a hypertechnical manner; it must meet only basic requirements. Wible, 113 Wn. App. at 21-22. The magistrate may draw commonsense inferences from the facts. State v. Garcia, 63 Wn. App. 868, 871, 824 P.2d 1220 (1992). We resolve any doubts in favor of the warrant. Wible, 113 Wn. App. at 21-22.
We apply the two-prong Aguilar-Spinelli test to decide whether an informant's statements are sufficiently reliable to support a search warrant. State v. McCord, 125 Wn. App. 888, 892, 106 P.3d 832 (2005). The warrant affidavit must show the basis for the informant's knowledge and facts from which the magistrate could conclude that the informant is credible and the information reliable. State v. Jackson, 102 Wn.2d 432, 433, 688 P.2d 136 (1984). Independent police investigation can be considered to corroborate the credibility of the informant and the reliability of the information. Id. at 438.
Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).
The affidavit here describes the confidential informant's basis of knowledge as detailed personal experience. The confidential informant was inside the house and saw the people, equipment, and activities. The confidential informant had personally bought drugs at the house in the past week. He or she knew underage females frequented the house because a couple of them said they were too young to buy cigarettes.
The informant described the premises in great detail, including both the general layout and the specifics of the bedroom and video equipment. The informant named a close associate of one male suspect, and the police had independent knowledge of that relationship. The officer signing the affidavit personally corroborated the drug connections of the people the informant named. One of the vehicles the informant reported often seeing parked outside was Mr. McCurdy's. Mr. McCurdy's drug connections were also well known to the police. The informant made statements against penal interest by admitting having bought drugs at the apartment. And the informant was not a professional informant. See State v. Ibarra, 61 Wn. App. 695, 699, 812 P.2d 114 (1991).
The issuing magistrate based his decision on the information available at the time. Condon, 72 Wn. App. at 642. A warrant is either valid or not valid on its face; later-discovered inaccuracies are simply not relevant. Id. This affidavit says the confidential informant named "residents" of the apartment. But Mr. McCurdy complains he was identified as the legal occupant of the apartment after the warrant was issued. The suppression court correctly limited its review of the warrant to information presented to the issuing judge. The court did not consider information acquired after the warrant issued. And whether the persons named were legal occupants or mere visitors was not relevant. The affidavit need not identify the legal occupant of the place to be searched. Wible, 113 Wn. App. at 21-22 (warrant need show only that a crime has been committed and that evidence of the crime is likely to be found).
There also is no requirement for the affidavit in support of the warrant to name the person to be charged. Id. It is enough that a reasonable person could conclude that evidence of criminal activity will likely be found at the place to be searched. Id.
Mr. McCurdy cites State v. Thein for the proposition that a warrant affidavit must establish a nexus between the defendant and the place to be searched. State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). But the language cited is dictum. It was unnecessary to decide that case, and we decline to follow it. State v. Potter, 68 Wn. App. 134, 149 n. 7, 842 P.2d 481 (1992).
Mr. McCurdy is correct that Thein says the affidavit must show that the defendant is engaged in criminal activity at the place to be searched. Thein, 138 Wn.2d at 140. But the Thein court was paraphrasing State v. Cole. Cole does not mention "the defendant"; it simply recites the well-settled law that a warrant affidavit must show that "criminal activity is occurring or that contraband exists at a certain location." Cole, 128 Wn.2d at 286. The Thein court expressed this rule in terms of "the defendant" because the defendant was the only criminal actor in that case. Identity was not in doubt. The only issue before the court was whether a warrant to search a person's home could rely on evidence of that person's criminal activity elsewhere. Thein holds that it cannot; either criminal activity must be occurring at the place searched, or evidence must otherwise be likely to be found there. Thein, 138 Wn.2d at 140.
State v. Cole, 128 Wn.2d 262, 906 P.2d 925 (1995).
The suppression court here correctly explained and applied this principle. The judge declined to consider later-discovered information disproving immaterial facts, such as that Mr. McCurdy was a legal occupant. The judge correctly ruled that the only required nexus was that between the place and the evidence of a crime.
The warrant information must not be remote in time. But it is fresh enough if it supports a reasonable magistrate "concerned only with a balancing of probabilities" in concluding that there is a reasonable basis for a search. United States v. Harris, 403 U.S. 573, 579, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971). Mr. McCurdy contends the affidavit was stale and a reasonable person should have questioned whether evidence of a crime would likely be found at the apartment when the warrant was issued. But he does so for the first time here on appeal.
That said, the informant interview here was the day before the warrant application. The informant used the present tense and described activities happening currently. He or she had bought drugs during the previous week. The law requires that a reasonable person could find probable cause based on the affidavit. Id. The facts in this affidavit would not have prompted the magistrate to undertake a staleness inquiry.
The trial court properly concluded that the affidavit in support of this search warrant was sufficient.
We therefore 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.