State v. Bauer

• Decision Date: 14 January 2000
• Docket Number: No. 21677-9-II.,21677-9-II.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Jeffery Allen BAUER, Appellant.

991 P.2d 668

98 Wash.App. 870

STATE of Washington, Respondent, v. Jeffery Allen BAUER, Appellant.

No. 21677-9-II.

Court of Appeals of Washington, Division 2.

January 14, 2000.

John Christopher Hillman, Pierce County Deputy Pros. Atty., Tacoma, for Respondent.

Brett Andrews Purtzer, Law Offices of Monte Hester, Tacoma, for Appellant.

HUNT, J.

Jeffery Allen Bauer¹ appeals his conviction for unlawful manufacture of a controlled substance, marijuana. He argues that: the trial court should have suppressed the evidence as a product of an illegal search warrant; the trial court should have compelled disclosure of the confidential informant; and he was denied effective assistance of counsel. Holding that the evidence was seized pursuant to a legally valid search warrant and finding no reversible error, we affirm.

FACTS

A citizen informant contacted the Washington State "marijuana hotline"² and Pierce County Sheriff's Deputy Kim Pecheos to report a marijuana grow operation at Jeffery Allen Bauer's residence at 10324 Kapowsin Highway in Graham. The informant expressed concern about the manufacture and sale of illegal narcotics, needed the State reward money, and wished to remain anonymous for fear of retaliation. Deputy Pecheos confirmed that the informant had been a citizen of Washington for over nine years, was a registered voter, and had no criminal history. Pecheos also confirmed details of the informant's factual information and obtained power records for that address, depicting an unusually high increase in power consumption during June and July: higher than for the colder months of January through April, over twice as high as a comparison residence's usage, and nearly three times the amount used by the previous tenant.

Based on this information, Pecheos compiled an affidavit in support of a search warrant, reciting, in part, the following:

The C/c stated that Jeffery A. Bauer and Dawn Swab live at the residence located at 10324 Kapowsin Hwy E. and have the marijuana grow inside the residence. The C/c stated that he/she had been living in a residence for over five years where a marijuana grow was being operated about 12 years ago and is familiar with what growing marijuana looks like, smells like and knows the various stages of growth of the marijuana plant. The C/c also admitted to using marijuana in the past. The C/c has observed the marijuana grow within the last thirty days while visiting Jeffery Bauer and Dawn Swab. There are about 96 maturing marijuana plants in what use [sic] to be the spare bedroom. The room has since been walled off and the only entrance is through a secret door behind some paneling in the living room. The window to the bedroom has been covered with a foam core insulation that has reflective material on one side. Mother plants and starter plants are in a separate room. The C/c described the residence as being a two bedroom house with a detached garage. The yard is well maintained and the house is surrounded by fields. The C/c stated that Jeffery Bauer drives a white Chevy Camaro with a license number of "GIGAWAT", has a red ford pickup, a jet boat, and Dawn Swab drives a blue square shaped car. The C/c also stated that Bauer owns a business called "JIGAWATTS".³

On August 29, 1996, the Pierce County Superior Court issued a search warrant for Bauer's property, based on Pecheos' affidavit.

The warrant was executed the next day, resulting in the seizure of growing marijuana from Bauer's residence. Bauer was charged with unlawfully manufacturing a controlled substance under RCW 69.50.401(a).

A pretrial hearing was scheduled for motions to suppress evidence and to compel disclosure of the confidential informant's identity. Bauer's trial counsel filed only a Motion for Disclosure of Confidential Informant. At the pretrial hearing, Bauer's counsel withdrew the motion to compel disclosure and instead argued for suppression based on unreliability of the informant. The trial court denied both motions. Bauer was tried and found guilty as charged.⁴

ANALYSIS

I. Motion to Suppress

Washington applies the two-pronged Aguilar-Spinelli test to determine whether information provided by an informant establishes probable cause to issue a search warrant: basis of knowledge and reliability. State v. Jackson, 102 Wash.2d 432, 436-37, 440, 688 P.2d 136 (1984); Spinelli v. United States, 393 U.S. 410, 415-16, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Both prongs of the Aguilar-Spinelli test must be satisfied to establish probable cause. See State v. Smith, 110 Wash.2d 658, 664, 756 P.2d 722 (1988). If an informant's tip fails under either prong, the warrant fails unless independent police investigation corroborates the tip to such an extent that it supports the missing elements of the test. Jackson, 102 Wash.2d at 438, 688 P.2d 136.

We review issuance of a search warrant for abuse of discretion. State v. Cole, 128 Wash.2d 262, 286, 906 P.2d 925 (1995). Here, we conclude that Pecheos' affidavit establishes probable cause for the issuance of a search warrant because it demonstrates both the factual basis for the informant's knowledge and reliability of the citizen informant. Thus, it is not necessary for us to address the alternate prong, whether the officer independently corroborated the information.

A. Basis of Informant's Knowledge

The knowledge prong of the Aguilar-Spinelli test is satisfied if the informant has personal knowledge of the asserted facts. See Jackson, 102 Wash.2d at 437-38, 688 P.2d 136. Here, 12 years earlier, the informant had lived for five years in another residence where marijuana was grown and had become familiar with the appearance and smell of marijuana; also, the informant had used marijuana in the past. Within the previous 30 days the informant had visited Bauer and had seen the marijuana grow in a walled-off room, accessible only through a secret door; the mother plants were in a room separate from the starter plants.

Great deference should be given to the probable cause determination of the issuing magistrate. State v. Young, 123 Wash.2d 173, 195, 867 P.2d 593 (1994). Generally, applications for search warrants "must be judged in the light of common sense, with doubts resolved in favor of the warrant." Young, 123 Wash.2d at 195, 867 P.2d 593 (emphasis added). Based on past experience, the informant could recognize marijuana growing. The description of Bauer's grow, particularly the location of the secret room, demonstrates the informant's knowledge of Bauer's criminal activity. We hold that the knowledge prong of the Aguilar-Spinelli test is satisfied.

B. Reliability of Citizen Informant

The level of evidence necessary to establish the reliability prong of Aguilar-Spinelli depends on whether the informant is a professional or a citizen informant.⁵ State v. Northness, 20 Wash.App. 551, 556-57, 582 P.2d 546 (1978). Evidence of past reliability is not strictly required where the informant is a citizen. Northness, 20 Wash.App. at 556, 582 P.2d 546.

To establish the reliability of a citizen informant, the police must "interview the informant and ascertain such background facts as would support a reasonable inference that he is `prudent' or credible, and without motive to falsify." State v. Chatmon, 9 Wash. App. 741, 748, 515 P.2d 530 (1973). To guard against the "anonymous troublemaker," Washington requires "heightened demonstrations of credibility for citizen informants whose identities were known to the police but not revealed to the magistrate." State v. Ibarra, 61 Wash.App. 695, 700, 812 P.2d 114 (1991). The affiant must supply enough additional information to support an inference that the informant is telling the truth.⁶Ibarra, 61 Wash.App. at 700,812 P.2d 114.

The record here confirms that the informant was a concerned citizen. The informant revealed his or her identity to Deputy Pecheos, who confirmed that the informant did not have a criminal record, had been a citizen of Washington for over nine years, and was a registered voter. The informant had observed the marijuana grow while recently visiting Bauer's home.⁷ The informant recited fear of retaliation as a valid reason for remaining anonymous and concern about the manufacture and sale of illegal narcotics as one reason (in addition to the hotline reward) for reporting the crime. As presented to the issuing magistrate, Pecheos ascertained sufficient background facts to support a reasonable inference that the informant was credible and without motive to falsify. We hold that the warrant meets the second prong of the Aguilar-Spinelli test.

II. Motion to Disclose Informant's Identity

Generally, an informant's identity may remain confidential unless disclosure "is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause." Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). We review for abuse of discretion a trial court's denial of a request to disclose the informant's identity. State v. Petrina, 73 Wash.App. 779, 782, 871 P.2d 637 (1994). A trial court abuses its discretion when it acts on untenable grounds or for untenable reasons or when its decision is manifestly unreasonable. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971).

Here, although Bauer filed a pleading entitled "Motion for Disclosure of Confidential Informant," his motion actually sought to suppress the marijuana evidence. Moreover, Bauer withdrew his motion to compel disclosure and substituted a motion to suppress. Bauer alleged no misrepresentation in Deputy Pecheos' affidavit. And, as the trial court found:

1. The confidential informant is not a material witness on the question of the defendant's guilt or innocence.

2. The defendant has not satisfied his burden of showing that the informant has testimony which is relevant and material to the defense.

Bauer has...