State Of Wash. v. Dickjose
| Decision Date | 23 February 2011 |
| Docket Number | No. 39160-1- II,39160-1- II |
| Court | Court of Appeals of Washington |
| Parties | STATE OF WASHINGTON, Respondent, v. David C. Dickjose, Appellant. |
Hunt, J. — We granted interlocutory discretionary review of the trial court's denial of David C. Dickjose's pretrial motion to suppress narcotics evidence seized during execution of a search warrant at his residence. Dickjose argues that the trial court erred in denying his motion to suppress because the supporting affidavit does not contain facts sufficient to establish a "nexus" between the place to be searched, his residence, and evidence of the suspected crimes of which he was charged (narcotics possession and delivery). Agreeing with Dickjose, we reverse the trial court's denial of his motion to suppress the evidence seized from his residence1 and remand forfurther proceedings.
On December 7, 2007, Officer Sean Conlon of the Lakewood Police Department obtained a warrant to search the residence and garages at "18111 41st AV E, Tacoma WA 98446" and "all out buildings, trailers and vehicles on the property" for evidence of possession and delivery of a controlled substance, unlawful under RCW 69.50.401. Clerk's Papers (CP) at 19. The warrant also listed David C. Dickjose as a person to be searched.
Officer Conlon's affidavit in support of the search warrant describes three "controlled buy[s]" that he conducted in late 2007 with the assistance of a confidential informant, he calls "Reliable CI 07026." CP at 22. Reliable CI 07026 "ha[d] known [Dickjose] for several years and kn[ew] [Dickjose] deal[t] [m]ethamphetamine" and "ha[d] first[-]hand knowledge that Dickjose ha[d] been a [m]eth cook in the past." CP at 22. On August 24, 2007, Reliable CI 07026 told Conlon where Dickjose lived and that Dickjose recently purchased "a silver Dodge [p]ickup, lifted with rims." CP at 22. Earlier that day, Conlon "drove to Dickjose's house and saw the pickup parked in the rear of the residence." CP at 22.
The first controlled buy occurred on August 24. Conlon searched Reliable CI 07026 and his car and issued pre-recorded "buy" funds. CP at 22. Reliable CI 07026 met2 a middleman, Kenneth Gross, at the 5400 block of South Warner Street. Gross called Dickjose and informed Dickjose that he (Gross) wanted a half ounce of methamphetamine. "Dickjose agreed [to meet him] and said he was in the area." CP at 22. Reliable CI 07026 drove away from the 5400 block of South Warner Street and informed Conlon that Dickjose was on his way.
Other officers observed a "Silver Dodge [p]ickup, WA #B84621C," arrive at the front of Gross's residence. CP at 22. Gross entered the passenger side of the pickup truck. At some point, the driver exited the truck, went to the back door of the truck, and reentered the truck. The search warrant affidavit next states, "A short time later [Dickjose] drove off," implying that Dickjose was the driver of this silver Dodge pickup truck. CP at 22. Officers followed Dickjose's truck for a few hours, CP at 23.
Conlon followed Reliable CI 07026 back to the 5400 block of South Warner Street. As Reliable CI 07026 exited his vehicle, Gross approached him. Gross handed Reliable CI 07026 a brown paper bag and then walked off. Reliable CI 07026 then met with Conlon a short distanceaway and handed over a paper bag containing 14.1 grams of methamphetamine. Conlon again searched Reliable CI 07026 and his car and did not find narcotics or other contraband.
The second controlled buy occurred on October 25. Conlon again met with Reliable CI 07026, searched him and issued pre-recorded "buy" funds. CP at 23. Reliable CI 07026 met3 Gross at "72nd and Pacific AV," gave him the funds, and parted ways. CP at 23. Other officers followed Gross and temporarily lost sight of him.
Reliable CI 07026 met Conlon and informed him that "Gross told [Reliable CI 07026] [that] [Gross] was going to meet with Dickjose and [Gross] would meet [Reliable CI 07026] back at [Gross's] residence" on South Warner Street. CP at 23. With Conlon following, Reliable CI 07026 arrived at Gross's residence and went inside. Approximately 30 minutes later, Gross arrived at his residence and also went inside.
Meanwhile, another officer was surveilling Dickjose's residence. "Dickjose returned to his residence in a time consistent with meeting up with Gross." CP at 23. "A few minutes later," Reliable CI 07026 met Conlon and handed over 12 grams of methamphetamine. CP at 23. Conlon then searched Reliable CI 07026 and his car and did not find narcotics or other contraband.
The third controlled buy occurred on December 5. Conlon engaged the same informant.
As before, Conlon searched Reliable CI 07026 and his car and provided him with pre-recorded "buy" funds. CP at 23. On the way to Gross's residence on South Warner Street, Reliable CI 07026 called Gross, who stated that he had called Dickjose and asked for a half ounce of methamphetamine. "Dickjose agreed [to meet] and said he was in the area." CP at 23.
Other officers observed Gross leave his residence and followed him to a location where he met with the driver of "a white Mercedes WA plate, URDARTZ." CP at23. An officer described the driver of the Mercedes vehicle as Dickjose. Gross left the encounter and returned to his residence.
At this point, the facts the search warrant affidavit recites are not so clear. Apparently, before Gross left to meet Dickjose, Reliable CI 07026 met Gross and gave him the "buy" funds inside Gross's residence. CP at 23. Reliable CI 07026 then returned to his car, drove away to meet Conlon, and told Conlon that "Gross called Dickjose and [Dickjose] was on his way." CP at 24. Some minutes later, officers observed a white Mercedes pull up in front of Gross's residence; Gross entered the passenger side of the Mercedes, then exited the Mercedes and returned inside his residence. The Mercedes drove away and other officers followed. One of the officers recognized the Mercedes' driver as Dickjose.
Reliable CI 07026 returned to Gross's residence. As Reliable CI 07026 exited his car, Gross approached and engaged in a "brief hand to hand transaction" with Reliable CI 07026. CP at 24. Reliable CI 07026 returned to his car, drove off, later met with Conlon a short distance away, and handed Conlon 13.2 grams of methamphetamine. Conlon then searched Reliable CI 07026 and his car and did not find narcotics or other contraband.
The officers following the white Mercedes temporarily lost sight of it. After regaining sight of the Mercedes, the officers observed it pull into the driveway of "313 S 67th ST." CP at 24. "Dickjose went inside for a few minutes then exited and left." CP at 24. Conlon pulled up next to the Mercedes and observed that Dickjose was driving. The officers followed Dickjose "directly to his residence... where he parked and went inside." CP at 24.
After describing the three controlled buys, the affidavit recounts Conlon's extensive training and experience with narcotics investigations and his generalized beliefs about the habits of drug dealers, including: "I know that evidence/records of illegal [n]arcotic sales are frequently kept in the residence and vehicles that the [n]arcotics dealers are using" and "I know that [n]arcotic dealers frequently keep firearms in th[eir] residences and or vehicles to avoid detection from law enforcement." CP at 25.
On December 13, the Lakewood Police Department executed the search warrant. According to the Lakewood Police Department's "Property Report," officers searched a "grey Dodge truck" and seized, among other things, a black bag containing approximately 237 grams of methamphetamine. CP at 27. Officers opened the door to this truck with keys that the officers found in Dickjose's pocket. Officers also searched a vehicle described as "Urdar-z-Merc.," apparently the white Mercedes with the URDARTZ license plate the officers had previously observed during the controlled buys; they found no narcotics in the Mercedes, but they did seize documents and a laptop. See CP at 27-28.
While searching Dickjose's residence and outbuildings, the officer also seized, amongother things, marijuana, methamphetamine, 4 cash, a bulletproof vest, and packaging material. Dickjose admitted that he had been selling methamphetamine and that he buys about a half pound of it at a time.5
On December 14, 2007, the State charged Dickjose with three counts of unlawful delivery of a controlled substance and one count of unlawful possession of a controlled substance with intent to deliver under RCW 69.50.401. The State named Gross and Wright as codefendants.
On April 7, 2009, Dickjose filed a CrR 3.6 motion to suppress the evidence, arguing that the search warrant affidavit "failed to establish an adequate nexus between the alleged criminal activity and the Dickjose residence for the purpose of issuing a search warrant for the Dickjose residence."6 CP at 10. The next day, the trial court held a CrR 3.6 hearing and denied Dickjose's motion to suppress, stating:
I think under these circumstances and affording the deference to the judge that reviews the facts with the presenting officer and the four corners of these declarations... I have to find that, in fact, [there is] a sufficient link between the criminal activity and the place to be searched, such that they do not violate our current state of the law here in the State of Washington as set forth in State v. Thein.7
Partial Verbatim Report of Proceedings (VRP) at 41.8
That next day, April 9, Dickjose filed a "notice of appeal for interlocutory discretionary review" under RAP 2.3, seeking...
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