State v. Garcia, 25349-0-III.

• Decision Date: 06 September 2007
• Docket Number: No. 25349-0-III.,25349-0-III.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Pedro Munoz GARCIA, Appellant.

166 P.3d 848

140 Wn. App. 609

STATE of Washington, Respondent, v. Pedro Munoz GARCIA, Appellant.

No. 25349-0-III.

Court of Appeals of Washington, Division 3.

September 6, 2007.

Dennis W. Morgan, Ritzville, WA, for Appellant.

David A. Jorgensen, Okanagan Prosecutor's Office, Okanogan, WA, for Respondent.

KULIK, J.

¶ 1 Police were informed by a confidential informant that Pedro Munoz Garcia was consuming drugs and providing liquor to minors in a local motel room. Mr. Munoz Garcia was convicted of first degree possession of stolen property and furnishing liquor to minors. On appeal, Mr. Munoz Garcia asserts that: (1) the trial court erred in its finding that the confidential informant was credible; (2) the record of the conversation prior to the issuance of a telephonic warrant was not properly reconstructed; (3) the "any and all persons present"¹ warrant violated the particularity requirement of the Fourth Amendment and was therefore invalid; and (4) the trial court erred when it found that the plain view and consent exceptions applied in this case. We affirm.

FACTS

¶ 2 Officer Timothy Rieb of the Brewster Police Department was contacted by a confidential informant regarding possible illegal activity. According to his affidavit for the search warrant, Officer Rieb was told by the confidential informant that the informant observed drugs and underage drinking in one of the rooms at a local motel. The informant told Officer Rieb that the room was being rented to Pedro Munoz Garcia. The owner of the motel confirmed this information.

¶ 3 Officer Rieb applied for a telephonic warrant to search the motel room that was identified by the informant. Officer Rieb did not reveal the identity of the informant to the issuing magistrate. In applying for the warrant, Officer Rieb asserted that he read the affidavit to the magistrate "[v]erbatim." Report of Proceedings (RP) (May 10, 2006) at 24. Although Officer Rieb testified that the magistrate asked him questions regarding the affidavit, Officer Rieb could not recall specifically what questions were asked.

¶ 4 The magistrate then requested more information regarding the confidential informant who provided the tip to Officer Rieb. In the affidavit in support of the search warrant, Officer Rieb attested to the informant's reliability because (1) the informant provided a signed, written statement; (2) the informant was familiar with methamphetamine and cocaine based on personal experience; (3) Officer Rieb knew the informant for eight years; and (4) the informant did not have a criminal history. The signed, written statement was never provided to Mr. Munoz Garcia.

¶ 5 The conversation between Officer Rieb and the magistrate was supposed to be recorded. But the recording of the conversation failed. Therefore, no transcript of the conversation could be made. Additionally, the magistrate did not make any notes regarding this conversation. The magistrate issued the warrant. Officer Rieb prepared the warrant and signed on the magistrate's behalf. The warrant authorized the search of "any and all persons present" at the motel room. Clerk's Papers (CP) at 78.

¶ 6 Police officers went to the motel to execute the search warrant. Upon entering the motel room, the officers observed that minors were present in the room, and several smelled of alcohol. Police searched the individuals present in the room based on concerns for officer safety. Officer Rieb was also investigating a burglary of the El Campesino jewelry store at the time. They discovered some of the stolen jewelry on the people present in the motel room.

¶ 7 When they searched Mr. Munoz Garcia, police discovered a glass pipe in his pocket that contained marijuana residue. Mr. Munoz Garcia was also wearing gold jewelry that was similar to the jewelry stolen from El Campesino. Officer Rieb testified that the jewelry that was taken and the items he observed in the store were all of a similar style. Some of the rings that Mr. Munoz Garcia was wearing still had price tags on them.

¶ 8 Mr. Munoz Garcia was charged with first degree possession of stolen property, possession of a controlled substance, use of drug paraphernalia, and furnishing liquor to minors. He was taken into custody, but was not initially informed of his Miranda² rights. Police decided to impound Mr. Munoz Garcia's vehicle.

¶ 9 Without informing Mr. Munoz Garcia of his rights, police asked his permission to search his vehicle. According to Mr. Munoz Garcia, he was up all night during the police search and had no sleep prior to being asked for consent to search. He agreed to allow the search and signed a consent form. Police found a small amount of burnt marijuana in between the driver's and front passenger's seats of the car, small rocks of cocaine on the dashboard, and a ring that was one of the items taken in the El Campesino burglary. The ring was valued at $52. Mr. Munoz Garcia was read his rights the following day.

¶ 10 The magistrate who issued the warrant testified at the suppression hearing. Although the magistrate testified that he recalled some of the facts from the affidavit, the magistrate had no recollection of whether he asked Officer Rieb any additional questions or received any additional information.

¶ 11 The magistrate testified that Officer Rieb read the affidavit in support of the search warrant over the phone. During cross-examination, the magistrate admitted that he did not have personal knowledge of whether Officer Rieb read the affidavit verbatim. The magistrate did recall that he thought there was probable cause to issue the warrant and that he told Officer Rieb to sign the warrant on his behalf.

¶ 12 The State stipulated that the recording failed and that there was not enough information on the recording, as made, to determine whether there was probable cause to issue the warrant. Instead, the State asked the trial court to rely on the testimony of Officer Rieb and the magistrate who authorized the search warrant.

¶ 13 The trial court found that the magistrate who issued the search warrant was a disinterested party who could provide evidence regarding the basis for the search warrant. The court also considered the testimony of Officer Rieb. The trial court concluded that there was "no doubt, whatsoever that the affidavit was read verbatim" to the magistrate who issued the search warrant. RP (May 10, 2006) at 149-50. The trial court concluded that there was probable cause to support the issuance of the warrant based upon the contents of Officer Rieb's affidavit.

¶ 14 The trial court further found that several items of stolen jewelry were in plain view on Mr. Munoz Garcia when police executed the search warrant. It found that the jewelry was visibly consistent with the jewelry observed in El Campesino and the items described to Officer Rieb. Under those circumstances, the trial court concluded that the items observed were immediately recognizable to the officers as evidence of a crime.

¶ 15 Finally, the trial court found that Mr. Munoz Garcia consented to the search of his vehicle. Although the trial court expressed concern about the fact that Mr. Munoz Garcia was not read his rights, the court relied on the signed consent form as determinative of the issue.

¶ 16 The State dismissed the charges of possession of a controlled substance and use of drug paraphernalia. On stipulated facts, the trial court found Mr. Munoz Garcia guilty of the remaining charges of possession of stolen property in the first degree and furnishing liquor to minors.

ANALYSIS

CREDIBILITY OF THE CONFIDENTIAL INFORMANT

¶ 17 A magistrate's determination that a warrant should issue is given great deference by this court and is reviewed for an abuse of discretion. State v. Cole, 128 Wash.2d 262, 286, 906 P.2d 925 (1995).

¶ 18 The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution require that a warrant may only issue upon a determination of probable cause. State v. Vickers, 148 Wash.2d 91, 108, 59 P.3d 58 (2002). "Probable cause is established when an affidavit supporting a search warrant provides sufficient facts for a reasonable person to conclude there is a probability the defendant is involved in criminal activity." Id.

¶ 19 This court employs the two part Aguilar-Spinelli³ test when a confidential informant's tip is used as part of the basis to establish probable cause. Vickers, 148 Wash.2d at 112, 59 P.3d 58. Under this test, the affidavit in support of the search warrant must demonstrate both the informant's basis of knowledge and the informant's veracity. Id. at 121, 59 P.3d 58.

¶ 20 Here, Mr. Munoz Garcia does not challenge that the knowledge prong of the Aguilar-Spinelli test has been met. The issue for this court is whether Officer Rieb's affidavit established the credibility of the confidential informant.

¶ 21 "The veracity prong is satisfied by showing the credibility of the informant or by establishing that the facts and circumstances surrounding the furnishing of the information support an inference the informant is telling the truth." State v. McCord, 125 Wash.App. 888, 893, 106 P.3d 832, review denied, 155 Wash.2d 1019, 124 P.3d 659 (2005). Washington requires a heightened showing of credibility for a citizen informant whose identity is known to police but not revealed to the magistrate. State v. Ibarra, 61 Wash.App. 695, 700, 812 P.2d 114 (1991).

¶ 22 Here, there was sufficient evidence of the confidential informant's veracity to support a finding of probable cause. Officer Rieb had known the informant for eight years. A background check revealed that the informant did not have a criminal record. The informant expressed concern for the community as the basis for coming forward. And, according to Officer Rieb's affidavit and testimony, the informant signed a written statement.⁴

¶ 23 Mr. Munoz Garcia asserts that there are residual doubts as to the motivation of the...