Opinion
Nos. 23019-8-III, 23026-1-III
May 5, 2005.
Appeal from Superior Court of Spokane County. Docket No: 03-1-03944-7. Judgment or order under review. Date filed: 04/06/2004. Judge signing: Hon. Gregory David Sypolt.
Counsel for Appellant(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Counsel for Respondent(s), Susan Marie Gasch, Gasch Law Office, PO Box 30339, Spokane, WA 99223-3005.
Christian J. Phelps, Law Offices of Christian J. Phelps PS, 422 W Riverside, Us Bank Bldg Ste 518, Spokane, WA 99201.
David and Michael Mulroy were charged with manufacturing methamphetamine. The cases against the Mulroys were based upon evidence seized from their residence. The charges against the Mulroys were dismissed because the trial court suppressed the evidence seized from their residence. The court concluded that there was not probable cause to issue the search warrant. The State appeals. We affirm the orders of the trial court.
FACTS
On March 18, 2002, Detective Dave Knechtel of the Spokane County Sheriff's Office received information from an employee of the White Elephant store that an unidentified female had purchased Coleman fuel. The informant described the female as "all dirty" and in "rough shape." Clerk's Papers (COA No. 23019-8-III) at 25. According to the informant, the female left with an unidentified man in a Mazda 626. The informant provided the license plate number of the vehicle.
Detective Knechtel traced the license plate number and determined that it was registered to David Mulroy of Port Orchard, Washington. Other official records established that David currently resided on East Ninth Avenue in Spokane. Avista utility records showed that electrical service was being provided to Dianne Mulroy at the East Ninth Avenue address.
Detective Knechtel began surveillance of David Mulroy's house on East Ninth Avenue. He observed a blue pickup was often parked there. The license plate number of the blue pickup was traced to Michael Mulroy. The Department of Licensing records showed that Michael likewise resided at the East Ninth Avenue address.
Detective Knechtel checked David's and Michael's criminal records. David's criminal history revealed a 2001 conviction for possession of methamphetamine. As a result of that conviction, David had been placed on community custody. Michael had previous convictions for first degree theft and second degree assault. The record search also revealed that Michael had been previously arrested for manufacturing methamphetamine.
On March 22, Officer Hamilton of the Spokane Police Department caught two individuals throwing a garbage bag into a dumpster at Sprague and Custer. The bag contained items associated with manufacturing methamphetamine. The bag also contained two pieces of mail addressed to David Mulroy at the East Ninth Avenue address. The individuals claimed that the garbage bag was being removed from the community garage at their residence on East Nora. They claimed not to have any knowledge of the methamphetamine equipment and they were subsequently released. Officer Hamilton informed Detective Knechtel of the incident.
Detective Knechtel drove to the East Ninth Avenue address and then to both dumpsters. The Sprague and Custer dumpster was 1.7 miles from the residence. The East Nora dumpster was 4 miles from the residence. He determined that it was more likely the trash was removed from the East Ninth Avenue address and taken directly to Sprague and Custer. The detective obtained a search warrant for the house located at East Ninth Avenue.
Based upon the results of the search of the house located at East Ninth Avenue, David and Michael were each charged with manufacturing methamphetamine and first degree unlawful possession of a firearm. They brought motions to suppress the search warrant. The motions were granted.
The State appeals. ANALYSIS
The State asserts that there was probable cause to issue the search warrant based upon the mail obtained from the garbage bag. According to the State, the mail in the garbage established both that a manufacturing operation was operating and that it was operating at the house located on East Ninth Avenue.
Standard of Review. A magistrate's issuance of a search warrant is reviewed under an abuse of discretion standard. State v. Creelman, 75 Wn. App. 490, 493, 878 P.2d 492 (1994).
Probable Cause. A search warrant cannot be issued absent probable cause. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). The magistrate is entitled to `great deference' in his `determination of probable cause.' Creelman, 75 Wn. App. at 493. All doubts are resolved in favor of the search warrant's validity. Id. Probable cause is established when there are `facts and circumstances sufficient to establish a reasonable inference that criminal activity is occurring or that contraband exists at a certain location.' Cole, 128 Wn.2d at 286.
Informant's Tip. To establish probable cause for a search warrant based upon an informant's tip, the affidavit must satisfy the two-pronged Aguilar/Spinelli test. Creelman, 75 Wn. App. at 494. The informant must have both (1) veracity, and (2) basis of knowledge. State v. Fisher, 96 Wn.2d 962, 965, 639 P.2d 743 (1982). Veracity is established if the informant is proven to be credible. Id. Basis of knowledge is established if the informant is passing on firsthand information. Creelman, 75 Wn. App. at 494.
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).
Here, neither element is satisfied. There was no evidence presented that the informant was credible. Instead, the informant's identity is unknown and no information about the informant's credibility is provided. Admittedly, the informant knew about the purchase of Coleman fuel. There are, however, innocent uses for Coleman fuel. Similarly, the informant observed an individual who was dirty and in rough shape. These characteristics do not reasonably create a suspicion of criminal activity. Independent Police Investigation. If information provided by the confidential informant fails to establish probable cause, an independent police investigation may do so if it corroborates the informant's tip and supports any missing elements. Creelman, 75 Wn. App. at 494. However, probable cause is not established if the independent investigation only corroborates innocuous facts and details. State v. Huft, 106 Wn.2d 206, 210, 720 P.2d 838 (1986). Probable cause is only established if the independent police investigation establishes some suspicious activity. State v. Kennedy, 72 Wn. App. 244, 248, 864 P.2d 410 (1993) (quoting State v. Jackson, 102 Wn.2d 432, 438, 688 P.2d 136 (1984)).
Here, the independent police investigation likewise did not establish probable cause. Instead, it merely verified innocuous facts. It verified that two individuals, apparently brothers, lived at the same residence, parked their vehicles in the same driveway, and that a third person with the same last name paid the utility bill. None of these activities are suspicious.
Contents of Garbage Bag. Next, the State asserts that probable cause is established based upon the two pieces of mail addressed to David Mulroy which were found in the garbage bag. "[P]robable cause requires a nexus between criminal activity and the item to be seized, and also a nexus between the item to be seized and the place to be searched." State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999) (quoting State v. Goble, 88 Wn. App. 503, 509, 945 P.2d 263 (1997)). The magistrate must have a `sufficient basis in fact from which to conclude evidence of illegal activity will likely be found at the place to be searched.' Thein, 138 Wn.2d at 147.
No published Washington case has dealt with the specific issue of whether a nexus is established based upon mail found in a garbage bag located a substantial distance from a residence. However, published Washington cases have dealt with the related issue of whether a defendant's address located during the execution of a search warrant at another residence constitutes probable cause to search the defendant's residence. Specifically, Washington courts have held that a defendant's home address found on a box of nails discovered during a drug bust is insufficient to establish probable cause to search the residence because the connection to illegal activity at the residence is innocuous. Thein, 138 Wn.2d at 150. In general, other jurisdictions hold that a garbage bag found without any documentation connecting it to the person or place is insufficient to establish probable cause because anyone could have placed the documentation in the garbage. People v. Burmeister, 313 Ill. App. 3d 152, 155, 728 N.E.2d 1260 (2000). However, other jurisdictions are split on whether finding mail addressed to the defendant in a garbage bag establishes probable cause. Some courts hold that such evidence constitutes probable cause. State v. Erickson, 496 N.W.2d 555, 559 (N.D. 1993). Other courts hold that it does not. People v. Balsley, 329 Ill. App. 3d 184, 187-88, 769 N.E.2d 153 (2002).
In Burmeister, a garbage bag was found outside the defendant's residence with no evidence connecting it to the defendant's residence. Because the garbage bag was `readily accessible to animals, children, scavengers, and snoops,' the court held that the garbage bag could not be connected to the defendant's residence. Burmeister, 313 Ill. App. 3d at 155. Similarly, Balsley involved a garbage bag found outside the defendant's residence that included mail addressed to the defendant at the residence. Balsley, 329 Ill. App. 3d at 185. The bag was tightly shut and the police had difficulty opening it. Id. at 186. The Balsley court held that in this type of situation there is concern over the possibility of tampering. Id. at 187-88. Specifically, the court held that "anyone could deposit contraband in the [garbage bag], alert the police, and watch as the victim's residence was searched." Id. at 188 (quoting Burmeister, 313 Ill. App. 3d at 158). However, because the specific garbage bag was tightly tied shut, the court held that the envelopes in the garbage bag were adequate to connect the garbage with the residence.
In this case, the facts and circumstances are insufficient to establish a reasonable inference that criminal activity was occurring at the house located on East Ninth Avenue. The garbage bag was not located outside that house. Instead, it was located in a dumpster almost two miles away. The fact that the garbage bag was apparently dropped off at a dumpster some distance from the residence establishes doubt as to whether a methamphetamine lab was located at the residence. Additionally, there was opportunity to tamper with the garbage bag. There is no evidence to establish that the garbage bag was tightly tied or difficult to access. The State, however, asserts that there was probable cause to search the house because one dumpster was 1.7 miles from the house and the other dumpster was 4 miles from the house. In essence, the State argues that it is more likely that the garbage bag came from the house, not from the dumpster. Detective Knechtel drove to both dumpsters and determined that the garbage bag likely came from the Mulroys' house because it was closer. Speculation on the part of Detective Knechtel does not establish probable cause. Goble, 88 Wn. App. at 508.
Next, the State maintains there is probable cause because the magistrate is entitled to great deference and all doubts are resolved in favor of the search warrant's validity. State v. Creelman, 75 Wn. App. 490, 493-94, 878 P.2d 492 (1994). However, probable cause requires finding sufficient facts and circumstances to `establish a reasonable inference that criminal activity is occurring.' State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). Here, there was insufficient evidence to establish such an inference.
Finally, the State asserts that probable cause is established because of the existence of the defendants' prior criminal history. Prior convictions cannot establish probable cause, but can be used as a factor in establishing probable cause. State v. Tarter, 111 Wn. App. 336, 341, 44 P.3d 899 (2002). Washington law is unclear whether prior arrests can be used as a factor in establishing probable cause. Id. Other jurisdictions have held that prior arrests can be used as a factor. Id. at 341-42. This is especially true where a defendant's criminal record includes both prior arrests and prior convictions. People v. Lee, 303 A.D.2d 839, 840, 758 N.Y.S.2d 407 (2003); State v. Williams, 859 So. 2d 751, 756-57 (La.Ct.App. 2003). Similarly, multiple prior arrests have bolstered probable cause, especially if they involved the same crime. Burke v. State, 592 S.E.2d 862, 863-64 (Ga.Ct.App. 2004). However, a defendant's criminal record that contains no convictions and in which all of the prior arrests were more than five years old is insufficient to establish probable cause. State v. Detroy, 72 P.3d 485, 495 (Haw. 2003).
Here, the prior arrests do not establish probable cause, even in combination with the contents of the garbage bag. First, the past criminal records involve prior arrests for manufacturing a controlled substance, not prior convictions. As a consequence, it is questionable whether the convictions should be considered under Washington law at all. Second, David's prior arrest is over five years old. Hence, it is insufficient. Third, David's prior arrest is for manufacturing marijuana, not methamphetamine. In other words, it does not involve the same crime. Fourth, Michael has no other connection to the crime. The only fact in evidence is that Michael parked his vehicle in the driveway of the house located on East Ninth Avenue. As a result, his past criminal history cannot be considered. In conclusion, there was insufficient evidence to establish probable cause to issue the search warrant.
We affirm the orders of the trial court.
The majority of the panel has determined 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.
KATO, C.J. and SCHULTHEIS, J., Concur.