State v. Ague-Masters
| Citation | 138 Wn. App. 86,156 P.3d 265 |
| Decision Date | 17 April 2007 |
| Docket Number | No. 34109-3-II.,34109-3-II. |
| Court | Court of Appeals of Washington |
| Parties | STATE of Washington, Respondent, v. Daniel Norman AGUE-MASTERS, Appellant. |
Thomas Edward Doyle, Hansville, WA, Patricia Anne Pethick, Tacoma, WA, for Appellant.
James C. Powers, Thurston County Prosecuting Attorney Office, Olympia, WA, for Respondent.
¶ 1 Daniel Ague-Masters1 appeals his conviction of unlawful manufacture of methamphetamine in the presence of a minor while armed with a deadly weapon. He assigns error to (1) the trial court's failure to file suppression hearing findings of fact and conclusions of law, (2) the trial court's denial of his motion to suppress, (3) the sufficiency of the evidence for his sentence enhancements, and (4) his sentence. Pro se, he also challenges the denial of his right of allocution. We affirm his conviction, vacate his sentence enhancements and the DNA collection fee provision, and remand for resentencing.
¶ 2 On March 31, 2001, Thurston County Sheriff's Deputy Jason Casebolt ran a records check for a vehicle located on Ague's property. The report stated that the registered owner, John Steven Hamm, had an outstanding felony warrant for escape. Casebolt contacted Detective Steve Hamilton, asking him for assistance in locating Hamm.
¶ 3 When Hamilton arrived, the deputies drove to Ague's residence, a single-wide mobile home, through an open cattle gate and down an unobstructed driveway approximately 50 to 75 feet before parking approximately 150 feet from the residence. Casebolt saw a sign in a tree that said "something to the effect of keep out or no trespassing or no hunting," but Hamilton and a corrections officer on a ride-along with Casebolt did not see the sign. Report of Proceedings (RP) (Nov. 19, 2001 a.m. session) at 14 (located in Apr. 25, 2001 RP). The deputies entered the property during daylight hours while in full uniform.
¶ 4 The deputies walked to the front door, and Casebolt knocked on the door for about a minute to a minute and one-half before hearing a noise from behind the residence. The deputies followed the noise through an open yard to the back of the residence.
¶ 5 While in the backyard, the deputies noticed a strong smell of propane. They saw three new propane tanks with the valves turned open and believed that someone was purging them of their contents.
¶ 6 Also in the backyard, the deputies saw a man, whose height and weight was consistent with Hamm's, welding a vehicle's bumper. The deputies asked the man if Hamm was present. The man initially responded he did not know but then said he would contact the residence's occupants to find out.
¶ 7 The man walked to the back porch, began knocking on the door, and said, "Come open up; it's Steve." RP (Nov. 19, 2001 a.m. session) at 20. Once the back door opened, the man "quickly tried to bolt inside the residence." RP (Nov. 19, 2001 a.m. session) at 68. The deputies grabbed the man and handcuffed him before he could get inside.
¶ 8 The deputies asked the man to identify himself, but he gave evasive responses. It started to rain, so the deputies moved him to a patrol car. Ague's daughter, S.A., yelled to the deputies that she lived at the residence and wanted them to leave.
¶ 9 Casebolt continued questioning the man, asking him if he had any weapons. After the man said no, Casebolt performed a pat-down search. Casebolt felt what appeared to be a "large knife" inside the man's jacket. RP (Nov. 19, 2001 a.m. session) at 26-27. To access the knife from the man's pocket, Casebolt had to pull out a pill bottle, which contained 150-200 pseudoephedrine pills prescribed for a female name. The deputies also found the man's identification card, which indicated that he was not Hamm, and a records search of the name on the card did not reveal any outstanding warrants. After the deputies determined the man was not Hamm, they released him and returned the pill bottle.
¶ 10 The next day, Hamilton heard from an anonymous source that Steven Layton was bragging that he had fooled police. Hamilton obtained a booking photo of Layton and realized that Layton was the man he had questioned at Ague's residence. He also discovered that Layton had not appeared for sentencing on previous convictions of unlawful possession of methamphetamine with intent to deliver, first degree unlawful possession of a firearm, and attempted unlawful manufacturing of methamphetamine.
¶ 11 On April 2, Hamilton telephoned a judge to obtain a warrant to search Ague's property for items associated with methamphetamine manufacture. For support, he informed the judge: (1) about his encounter with Layton; (2) about Layton's criminal background; (3) about the pseudoephedrine pills Casebolt found; (4) about the heavy scent of propane in Ague's backyard; (5) that methamphetamine manufacturers may purge propane bottles in order to store anhydrous ammonia; (6) that anhydrous ammonia and pseudoephedrine pills are both primary precursors for manufacturing methamphetamine; and (7) about other suspects he believed lived at the residence based on an anonymous informant's tip. The judge authorized the warrant.
¶ 12 The deputies served the search warrant in the early morning of April 3. When they arrived, Ague opened the door wearing only underwear and appearing surprised, as if he had just awakened. The deputies found three other adults and one minor, S.A., in the house.
¶ 13 There were several outbuildings, travel trailers, and vehicles on the property. The deputies kicked in the door of a detached shed approximately 100 feet from the residence and, once inside, found items associated with a methamphetamine lab, including anhydrous ammonia and several containers with substances that tested positive for methamphetamine.
¶ 14 The shed also contained a washing machine full of wet clothing, a dryer, a freezer, a shower, a desk, a police scanner, and a monitor for a surveillance system. The residence and shed shared a grass yard that someone had recently mowed. The deputies taped off a hazardous area around the shed, which they described as the "hot zone." II RP at 42. The residence was outside the hot zone.
¶ 15 The deputies did not find any evidence of a methamphetamine lab inside the house, but they did find a "large" dial-operated gun safe in a bedroom. II RP at 154. A locksmith opened the safe, which contained six shotguns, two rifles, four handguns, ammunition, batteries, baggies containing a white substance, a scale, and a box of syringes. All of the firearms were unloaded.
¶ 16 The State charged Ague with one count of unlawful manufacture of methamphetamine2 with special allegations that he did so while armed with a deadly weapon3 and while a minor was present in or on the manufacturing premises.4
¶ 17 Before trial, Ague moved to suppress evidence seized during the search, challenging the deputies' entry onto the property, the search warrant affidavit, and the probable cause for the warrant. The trial court found that the deputies had legitimate business on the property and only entered areas impliedly open to the public. The trial court excised portions of the search warrant affidavit dealing with the home's residents other than Layton because there was an insufficient showing of the informant's reliability. After excising these portions, the trial court found that the remainder of the affidavit was sufficient to establish probable cause for the search warrant and denied the motion to suppress.
¶ 18 A jury trial began on September 6, 2005. After the parties rested, Ague objected to both special allegations going to the jury, arguing insufficient evidence, but the trial court submitted them. With regard to the enhancement for a minor being on the premises, the trial court stated, "I am comfortable with the idea that premises in this regard could mean anywhere on the property under the control of the defendant and not necessarily within the same room that the meth was being cooked within." III RP at 206.
¶ 19 The jury found Ague guilty of manufacturing methamphetamine and found he was armed with a deadly weapon during the commission of the offense and that a minor was in or on the premises of manufacture.
¶ 20 Ague's standard sentencing range was 51 to 68 months, with a maximum term of 120 months. The court sentenced him to an additional 60 months for the minor-on-the-manufacturing-premises enhancement and 36 months for the deadly weapon enhancement. Because his total sentence exceeded the maximum term, the trial court sentenced him to 120 months. The trial court also imposed 9 to 12 months of community custody for each count and a $100 DNA collection fee.
¶ 21 On September 26, 2006, after trial and sentencing, the State submitted findings of fact and conclusions of law from the suppression hearing.
¶ 22 Ague appeals.
¶ 23 First, Ague asks us to dismiss his case because the trial court did not enter findings of fact and conclusions of law after his suppression hearing. Although the trial court delayed entering the required findings and conclusions until after Ague submitted his opening appellate brief, the delay did not prejudice him or affect our ability to conduct appellate review.5 See State v. Hoffman, 116 Wash.2d 51, 95, 804 P.2d 577 (1991). We decline to dismiss on these grounds.
¶ 24 Next, Ague claims the trial court erred in denying his motion to suppress. He asserts that the deputies unlawfully entered his property and searched Layton, and he claims that the search warrant affidavit was stale and did not provide probable cause.
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