State v. Atchley

• Decision Date: 18 December 2007
• Docket Number: No. 25235-3-III.,25235-3-III.
• Citation: 173 P.3d 323,142 Wn. App. 147
• Parties: STATE of Washington, Respondent, v. Scott Vernon ATCHLEY, Appellant.
• Court: Washington Court of Appeals

173 P.3d 323

142 Wn. App. 147

STATE of Washington, Respondent, v. Scott Vernon ATCHLEY, Appellant.

No. 25235-3-III.

Court of Appeals of Washington, Division 3.

December 18, 2007.

Kevin Michael Korsmo, Attorney at Law, Andrew J. Metts III, Spokane County Pros Office, Spokane, WA, for Respondent.

Bevan Jerome Maxey, Maxey Law Offices PS, Spokane, WA, for Appellant.

KULIK, J.

¶ 1 Scott Vernon Atchley challenges his convictions for manufacturing a controlled substance, marijuana, and possession of a controlled substance with intent to deliver. The trial court did not err by refusing to: (1) compel the release of an informant's name, (2) hold a Franks¹ hearing on the allegedly false statements contained in the search warrant affidavit, or (3) suppress evidence derived from the search of his residence. Accordingly, we affirm.

FACTS

¶ 2 On July 26, 2005, Deputy Jack Rosenthal presented an affidavit for a search warrant for a suspected indoor marijuana grow operation at Mr. Atchley's residence. Deputy Rosenthal had been contacted by a concerned citizen informant, who provided the location of the residence and Mr. Atchley's name. The informant told the deputy that marijuana was being grown in Mr. Atchley's basement and that Mr. Atchley sold marijuana from this residence and at the Big Foot Tavern. In addition, the informant indicated that Mr. Atchley worked at a local home and garden store. The informant alleged that Mr. Atchley had devised an elaborate ventilation system and may have been diverting power from his residence to avoid detection of the marijuana grow operation by law enforcement.

¶ 3 Deputy Rosenthal obtained the informant's name, date of birth, address, place of employment, and phone number. Deputy Rosenthal completed a criminal background check of the informant, and found "no reason to believe that the [informant] would provide false information to law enforcement." Clerk's Papers (CP) at 25. The affidavit stated that the informant requested no compensation and that the information was not provided in connection with any past, present, or pending criminal charges.

¶ 4 Deputy Rosenthal followed up on the information provided by the informant and confirmed that Mr. Atchley owned and resided at the address provided. Deputy Rosenthal performed a Department of Licensing search and verified that Mr. Atchley was the owner of a 1988 GMC pickup. The deputy discovered that the vehicle was observed in 2002 at a local garden supply store where one year earlier law enforcement had conducted a surveillance operation, resulting in several arrests for marijuana cultivation and manufacturing. Deputy Rosenthal conducted a financial background check of Mr. Atchley, verifying that Mr. Atchley worked at Home Depot. Deputy Rosenthal stated in the affidavit that he believed Mr. Atchley was living beyond his reported financial means.

¶ 5 Deputy Rosenthal independently conducted a ruse, whereby he visited the outside of Mr. Atchley's residence undercover. Deputy Rosenthal stated that he did not detect the odor of marijuana. While outside the residence, Deputy Rosenthal noticed large quantities of potting soil dispersed around the home containing what "appeared to be" the root balls of marijuana plants. CP at 27. Deputy Rosenthal also stated he was able to see, through a partially open gate, that the backyard was covered in potting soil. Based on the deputy's training and experience, these observations were indicative of an indoor marijuana cultivation operation.

¶ 6 Based upon the information contained in the affidavit, a search warrant was issued for the person, residence, and vehicle of Mr. Atchley. Upon execution of the warrant, items were found in Mr. Atchley's residence, including marijuana plants, lights and other grow equipment, scales, packaging materials, and calendars.

¶ 7 In August 2005, Mr. Atchley was charged by information with one count of manufacturing a controlled substance, marijuana, and one count of possession of a controlled substance with intent to deliver.

¶ 8 Procedural History. Mr. Atchley brought motions to suppress evidence derived from the search of his home, to compel the release of the informant's name and to request a Franks hearing, and for dismissal of the charges against him. Mr. Atchley's suppression motion was based on his claims that the warrant was issued without sufficient probable cause and was based on false information. The trial court held a hearing concerning the validity of the search warrant. The court found probable cause for the warrant, declined a Franks hearing, and denied the motion to suppress.

¶ 9 Mr. Atchley filed a motion for reconsideration of his prior motions to suppress and dismiss. The trial court denied the motions. Mr. Atchley waived his right to a jury trial and elected to proceed with a stipulated facts trial. He was found guilty on both counts as charged in the information.

¶ 10 Mr. Atchley appeals the felony judgment and sentence entered on May 3, 2006, and specifically appeals all pretrial motions heard in the case.

ANALYSIS

¶ 11 Standard of Review. The trial court's findings of fact are reviewed under a clearly erroneous standard, and will be reversed only if not supported by substantial evidence. State v. Grewe, 117 Wash.2d 211, 218, 813 P.2d 1238 (1991). Substantial evidence exists only if there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding. State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994) (citing State v. Halstien, 122 Wash.2d 109, 129, 857 P.2d 270 (1993)). Great deference is given to the trial court's factual findings. State v. Cord, 103 Wash.2d 361, 367, 693 P.2d 81 (1985). Conversely, this court reviews challenges to the trial court's conclusions of law de novo. Robel v. Roundup Corp., 148 Wash.2d 35, 43, 59 P.3d 611 (2002).

¶ 12 Release of the Informant's Name. Mr. Atchley first contends the trial court erred by denying his motion to compel the identity of the confidential citizen informant who provided information to Deputy Rosenthal.

¶ 13 It is well established that the State has a legitimate interest in protecting the identity of confidential informants. See State v. Moen, 150 Wash.2d 221, 230, 76 P.3d 721 (2003). The ability to protect an informant's identity from disclosure is termed the "informers' privilege," which is the government's privilege to withhold from disclosure the identity of persons who provide information to law enforcement concerning the commission of crimes. State v. Harris, 91 Wash.2d 145, 148, 588 P.2d 720 (1978).

¶ 14 This privilege is recognized in Washington both by statute, RCW 5.60.060(5), and court rule, CrR 4.7(f)(2). Specifically, CrR 4.7(f)(2), concerning matters not subject to disclosure in criminal cases, states:

Disclosure of an informant's identity shall not be required where the informant's identity is a prosecution secret and a failure to disclose will not infringe upon the constitutional rights of the defendant. Disclosure of the identity of witnesses to be produced at a hearing or trial shall not be denied.

¶ 15 The purpose of informer's privilege is to encourage citizens to aid law enforcement by protecting the source of the communication. See State v. Casal, 103 Wash.2d 812, 815-16, 699 P.2d 1234 (1985); Harris, 91 Wash.2d at 148, 588 P.2d 720. The Washington Supreme Court explained that "[w]hen the State is compelled to disclose an informant's identity, it loses a valuable asset or tool of law enforcement." Moen, 150 Wash.2d at 230, 76 P.3d 721.

¶ 16 In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the United States Supreme Court acknowledged the need to balance the interests of the accused in criminal discovery and the interests in protecting the identity of a confidential informant. The Court specifically addressed the government's obligation to reveal the identity of an informant not called as a witness in the case.

¶ 17 Importantly, in Roviaro the court held

no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.

Id. at 62, 77 S.Ct. 623. If, after considering these factors, the court determines that the disclosure of an informant's identity or the contents of the communication are "relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause," the court may require disclosure. Id. at 60-61, 77 S.Ct. 623.

¶ 18 Washington courts have held that, where the informant provided information relating only to probable cause rather than the defendant's guilt or innocence, disclosure of the identity of an informant is not required. Casal, 103 Wash.2d at 816, 699 P.2d 1234 (citing State v. Larson, 26 Wash.App. 564, 567-68, 613 P.2d 542 (1980); State v. Sewell, 11 Wash.App. 546, 548, 524 P.2d 455 (1974); State v. White, 10 Wash.App. 273, 518 P.2d 245 (1973)).

¶ 19 Here, nothing in the record indicates that the citizen informant provided false information to Deputy Rosenthal or that the citizen informant was acting out of revenge or self-interest. The informant received no compensation or reward for the information. Further, the affidavit indicated that, after running a criminal background check, there was no reason to believe the informant would provide false information. The affidavit was signed under oath by Deputy Rosenthal.

¶ 20 Furthermore, Mr. Atchley does not challenge the existence of the informant or contend that the deputy misrepresented the informant's statements or information. The identity of an informant...