State v. Evans
| Decision Date | 23 August 2005 |
| Docket Number | No. 31451-7-II.,31451-7-II. |
| Citation | 129 Wn. App. 211,118 P.3d 419 |
| Parties | STATE of Washington, Respondent, v. Danny Wayne EVANS, Appellant. |
| Court | Washington Supreme Court |
Heiko Philipp Coppola, Attorney at Law, Cowlitz Co. Pros. Aty. Offc., Kelso, WA, for Respondent.
John A. Hays, Attorney at Law, Longview, WA, for Appellant.
¶ 1 A jury convicted Danny Evans of manufacturing methamphetamine and unlawful possession of methamphetamine with intent to deliver. He appeals, arguing that the trial court erred when it (1) denied his motion for a Franks1 hearing, (2) determined that denial of ownership constitutes abandonment, and (3) sentenced him under former RCW 69.50.401(a)(1)(ii) (2002). He further argues that the prosecutor elicited a comment on his exercise of his right to remain silent. We affirm the conviction, but vacate the sentence and remand for resentencing.
¶ 2 On October 23, 2002, police officers arrested Gary Lindsey for second degree attempted burglary. In exchange for leniency, Lindsey offered information about Evans, his methamphetamine dealer.
¶ 3 Detective Michael Cowan filed an affidavit, requesting a search warrant for a home and detached structure at 1101 Cowlitz Way. He also requested a search warrant for Evans, the property's owner.
¶ 4 The affidavit described Lindsey's interactions with Evans:
Lindsey told me he has purchased crystal methamphetamine from a Dan Evans and "Scott" [an accomplice] who "cook", manufacture methamphetamine using the "red-P" method in a small ... dwelling/structure located behind Evans' residence at 1101 Cowlitz Way.... Lindsey told me that on the evening of 10/21/2002 he went to this dwelling/structure behind 1101 Cowlitz Way to purchase methamphetamine. He contacted Scott at the dwelling and purchased $20 worth of methamphetamine. During this contact Lindsey asked to use the bathroom. Scott let Lindsey into the dwelling/structure to use the bathroom. Lindsey said he observed 4-5 metal cans he thought contained "Acetone", 3-4 off green in color "Ball" Mason jars of the quart size. He said he had supplied these jars to Evans earlier. Lindsey described the jars as having a clear to yellowish liquid into [sic] them. Lindsey said one of the jars had [two] separate layers of an unknown liquid inside. Lindsey stated Scott was boiling an unknown substance that "looked like water" in [a] Corning cook ware [sic] sauce pan "breaking pills down" which he pulled out of the stove. Lindsey stated he saw a dark red in color substance in coffee filers and a jar.
¶ 5 Further, Cowan explained that "Lindsey is aware that if the information provided is not correct, he will not receive leniency for his pending felony charge." CP at 119. He also indicated that Lindsey's information corroborated his investigation on other charges. But he did not list Lindsey's prior convictions for six counts of forgery and two counts of second degree theft.
¶ 6 Task Force members executed the warrants at 1101 Cowlitz Way, where they observed a residence and a detached, converted garage.
¶ 7 When entering the residence, the police detected a noticeable chemical odor. The police arrested Evans as he left the residence and then placed him in a patrol car. Cowan read him the Miranda2 advisements.
¶ 8 Officers discovered evidence of methamphetamine production in the garage. They found a hot plate, gas mask, filters, Red Devil lye, butane, a bag of flares, and a condenser tube hose. Testing revealed Evans's fingerprints on two flasks and a condenser tube. The officers also recovered a container with layers of clear, colorless liquids. Later tests confirmed that the item contained methamphetamine base.
¶ 9 Bryan Kerr was present during the search. Officers learned that Kerr rented the residence. In his interview with Sergeant Kevin Tate, Kerr explained that Evans generally carried a briefcase.3 Tate "had the impression that this [briefcase] was part of the business that Dan Evans was involved in," specifically, the "[m]ethamphetamine drug dealing business." Report of Proceedings (RP) (Taped) at 53.
¶ 10 Tate observed a truck parked in the driveway. Inside, he saw the briefcase Kerr described. Evans was the truck's registered owner. After confirming that Evans had been given Miranda warnings, Tate began interviewing him. Evans stated that 4 RP (Taped) at 56.
¶ 11 Tate then asked permission to search the truck. He explained that the truck was not included in the search warrant but that Evans could give consent. Evans asked what Tate wanted to search. Tate stated that he wanted to "search the passenger compartment of the car." RP (Taped) at 58. Evans gave Tate consent to perform a "limited search" of the truck, provided that he could be present. RP (Taped) at 59.
¶ 12 In the back seat of the truck, Tate saw the briefcase. It was locked. He asked whether the briefcase belonged to Evans and whether he had a key. Evans stated that he did not own the briefcase, that he did not know the owner, and that he could not give permission to open the briefcase because it did not belong to him.
¶ 13 Tate seized the briefcase, telling Evans that he would apply for a search warrant. Evans objected, saying, RP (Taped) at 62-63. Tate then stopped searching the truck.
¶ 14 After a drug-sniffing dog gave a positive "hit" on the briefcase, Tate obtained a search warrant. Inside, he found a bank foreclosure notice for the residence at 1101 Cowlitz Way, red phosphorous, and scales. The briefcase also contained a white crystal substance, later identified as methamphetamine hydrochloride.
¶ 15 The State charged Evans with manufacture of methamphetamine (count I) and unlawful possession of methamphetamine with intent to deliver (count II).
¶ 16 Evans moved to suppress the evidence found in the briefcase. He also filed a motion to suppress all evidence obtained through the search warrant, arguing that the supporting affidavit did not meet the Aguilar-Spinelli5 reliability prong. He then moved for a Franks hearing, claiming that the affiant deliberately omitted material facts regarding Lindsey's prior convictions for crimes of dishonesty. The court denied the motions.
¶ 17 At trial, Tate testified that Evans received Miranda warnings. Then the prosecutor and Tate discussed Evans's further questioning and his responses.
¶ 18 Outside the jury's presence, Evans moved for dismissal without prejudice or a mistrial, claiming that the prosecutor solicited a comment on Evans's exercise of his right to remain silent. The trial court denied the motion.
¶ 19 The jury convicted Evans of manufacturing methamphetamine "as charged in Count I" and of unlawful possession of methamphetamine with intent to deliver "as charged in Count II." Count I charged him with manufacturing methamphetamine "contrary to [former] RCW 69.50.401(a)(1)," and count II charged him with possession of methamphetamine with intent to deliver "contrary to [former] RCW 69.50.401(a)." CP at 1, 2.
¶ 20 In a posttrial motion, Evans (1) renewed his two motions to suppress, (2) asked the court to treat the two counts as the same criminal conduct in sentencing, and (3) argued that the court could not sentence him under former RCW 69.50.401(a)(1)(ii) because the jury verdict did not specifically identify the unlawful substance.
¶ 21 The trial court denied the renewed motions to suppress. It then determined that the two counts were the same criminal conduct. It sentenced Evans to 60 months, a term within his standard range.6
¶ 22 He appeals.
¶ 23 Evans first contends that the trial court erred when it denied his motion for a Franks hearing. He asserts that Cowan recklessly omitted a material fact, Lindsey's prior convictions for crimes of dishonesty. He argues that these prior convictions were material because they undercut the indicia of reliability required by Aguilar-Spinelli.
¶ 24 At the defendant's request, the court must hold a Franks hearing if the defendant makes a preliminary showing that the affiant included a false statement knowingly and intentionally, or with reckless disregard for the truth, and the false statement was necessary to a finding of probable cause. 438 U.S. at 155-56, 98 S.Ct. 2674; State v. Vickers, 148 Wash.2d 91, 114, 59 P.3d 58 (2002). The Franks rule extends to material omissions. State v. Garrison, 118 Wash.2d 870, 873, 827 P.2d 1388 (1992).
¶ 25 "`[A]llegations of negligence or innocent mistake are insufficient.'" Garrison, 118 Wash.2d at 872, 827 P.2d 1388 (quoting Franks, 438 U.S. at 171, 98 S.Ct. 2674). Rather, the defendant must support the allegations with an offer of proof. Garrison, 118 Wash.2d at 872, 827 P.2d 1388. If the defendant makes the requisite preliminary showing and establishes the allegations at the hearing by a preponderance of the evidence, the trial court includes the omitted material in the affidavit to determine whether it supports a finding of probable cause. State v. Chenoweth, 127 Wash.App. 444, 111 P.3d 1217, 1223 (2005). If the modified affidavit fails to support probable cause, the search warrant is invalid and all evidence obtained through the warrant is excluded. Chenoweth, 111 P.3d at 1223-24.
¶ 26 In his motion for a Franks hearing, Evans asserted that Cowan "chose to omit" Lindsey's prior convictions for six counts of forgery and two counts of second degree theft. CP at 27. Additionally, he claimed the following:
Herein we have established that specific omissions of fact have been made by the police in the application for this search warrant. Lindsey at the same time that he was being vouched for to the magistrate as a credible and reliable source was known to the police and the Prosecuting Attorney of this...
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State v. Evans
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