State v. George
| Decision Date | 18 April 2022 |
| Docket Number | 83309-0-I |
| Parties | STATE OF WASHINGTON, Respondent, v. ANTHONY WILLIAM GEORGE, SR., Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Anthony William George, Sr., appeals his conviction of three counts of possession of a controlled substance with intent to deliver, one count of possession of a controlled substance and three counts of unlawful possession of a firearm in the first degree. George asserts that the warrant authorizing the search of his home lacked probable cause and particularity and that the trial court erred by improperly excluding a Black juror, admitting certain evidence, depriving him of his right to confrontation and due process, failing to give a unanimity instruction, and subjecting him to double jeopardy. George also contends that insufficient evidence supports his convictions, the trial court exhibited bias, and his drug convictions all should have been considered the same criminal conduct for purposes of calculating his offender score.
The State of Washington concedes that George's simple possession conviction must be vacated in light of Blake[1] and that George's remaining drug convictions constitute the same criminal conduct.
We affirm George's convictions with the exception of the simple possession charge, and remand to the trial court to vacate the simple possession conviction and resentence George based on a corrected offender score.
In January of 2019, the Grays Harbor Drug Task Force (DTF) obtained a warrant to search George, his residence, or vehicles for, among other things, "controlled substances as found therein, together with the vessels in which they are contained." According to DTF Detective Richard Ramirez's affidavit for the search warrant, a confidential informant (CI) known as CI 18-21 reached out to DTF in 2018. CI 18-21 had information about illegal narcotic dealers and wanted to obtain leniency on pending charges. After DTF established that CI 18-21 had a working knowledge of the drug world, it contacted the Grays Harbor County Prosecutor's Office, which agreed to provide leniency if the CI assisted DTF.
Detective Ramirez attested that in December 2018, CI 18-21 contacted DTF asking if they knew George. DTF and Detective Ramirez knew George from two previous 2017 "controlled buys"[2] for oxycodone pills. CI 18-21 stated that they had been buying oxycodone pills from George, and that George was willing to sell cocaine if asked. In January 2019 CI 18-21 agreed to arrange and participate in a controlled buy for a specific amount of oxycodone at George's residence. Detective Ramirez discussed with CI 18-21 the details of the controlled buy. Detective Ramirez also told CI 18-21 the specific route to the buy location and back, that the CI was not to stop or deviate from the route, that the CI was not to contact anyone along the way, and that the CI would be under constant surveillance. After the briefing, Detective Ramirez searched CI 18-21 and found no money, drugs, weapons, or contraband. Detective Ramirez then provided CI 18-21 marked (pre-recorded serial number) money for the buy and instructed that the money was only for the purchase of the oxycodone pills.
DTF drove CI 18-21 to George's residence and established surveillance nearby. It observed CI 18-21 knock on the front door to George's residence. George spoke to the CI for a few minutes before walking back inside the residence. Through the window, DTF observed George grab something before walking back to the door and making a hand to hand transaction with the CI. The CI walked back to the vehicle and handed Detective Ramirez several light blue pills. DTF, Detective Ramirez, and CI 18-21 then drove to another predetermined location where DTF could inspect the pills further. From Detective Ramirez's experience and training, he recognized them as 30 milligram oxycodone pills.
Based on the 2019 and two 2017 controlled buys, DTF determined that there was probable cause to search George and his residence. DTF requested and obtained a search warrant claiming that George committed or reasonably appeared to be committing a violation of the Uniform Controlled Substance Act.[3] DTF contacted George at his residence, served the warrant, and took custody of George. After receiving his Miranda[4] rights, George indicated that there could be some cocaine in a vehicle and guns around the property.
When searching George's property, DTF located around 20 firearms in his residence, a vehicle, and a motorhome. This cache of firearms included a Harrington bolt action .22 caliber rifle with its firing mechanism "hanging out" found leaning against the wall in the living room near the primary bedroom. Additionally, the search of George's residence revealed black bags containing bundles of cash wrapped with rubber bands, sandwich bags, oxycodone, Gabapentin, Xanax, [5] different types of pills, pill bottles, digital scales with white residue, and cocaine. One black bag contained more than $40, 000 in a plastic bag bundled with a rubber band.
The State charged George with one count of possession of cocaine with intent to deliver within 1, 000 feet of a school bus stop, one count of possession of oxycodone with intent to deliver within 1, 000 feet of a school bus stop, and one count of possession of Gabapentin with intent to deliver, all including the enhancement that he was armed with a firearm. The State also charged George with one count of possession of Xanax and three counts of Unlawful Possession of a Firearm in the First Degree: one count each for a Ruger MK II .22 caliber pistol, a Mossberg Model 715T AR rifle, and the Harrington .22 rifle.
The night before trial, George moved to suppress the evidence seized pursuant to the warrant, arguing that the warrant was overbroad and the information contained in the probable cause affidavit was unreliable. Additionally, George moved to exclude evidence of the 17 firearms that were seized but not used to enhance the charges, claiming that the firearms were more prejudicial than probative. The court denied both motions. After weighing the probative and prejudicial effect of admitting the firearms, the court concluded that the other 17 firearms could be introduced through testimony.
The jury found George guilty on all counts. After the verdict, a different attorney than the one who represented him at trial appeared and represented George during the sentencing hearing. The new attorney orally requested a continuance because defense counsel had a trial conflict. The court denied the request. The court then sentenced George to a standard range sentence of 240 months of confinement. George appeals.
George asserts that his convictions must be reversed on multiple grounds. He also raises a number of challenges to his sentence. As discussed below, we affirm George's convictions except for the simple possession charge, and remand for resentencing.
George claims the evidence seized under the warrant should have been suppressed because the warrant was neither supported by probable cause nor sufficiently particular. We disagree.
The Fourth Amendment of the United States Constitution and article 1, section 7 of the Washington Constitution require a search warrant to be issued upon a determination of probable cause. State v. Jackson, 150 Wn.2d 251, 264, 76 P.3d 217 (2003). "Probable cause exists where the affidavit in support of the warrant sets forth facts and circumstances sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime may be found at a certain location." Jackson, 150 Wn.2d at 264. A magistrate exercises discretion in determining whether to issue a warrant. State v. Vickers, 148 Wn.2d 91 108, 59 P.3d 58, (2002). We review this decision for abuse of discretion. Vickers, 148 Wn.2d at 108. We generally accord great deference to the magistrate and evaluate the supporting affidavit for a search warrant in a common sense manner. Id. "Doubts concerning the existence of probable cause are generally resolved in favor of issuing the search warrant." Id. at 108-09.
George asserts that the warrant was not supported by probable cause because the State's informant was unreliable and the controlled buys from 2017 were too stale to be considered in evaluating probable cause.
A magistrate may issue a search warrant "based on information received from an informant if the application establishes probable cause to believe that the items sought will be found in the place to be searched." State v Casto, 39 Wn.App. 229, 232, 692 P.2d 890 (1984). Probable cause based on statements from an informant requires a showing that the informant is probably trustworthy and has personal knowledge of the facts. State v. Merkt, 124 Wn.App. 607, 613, 102 P.3d 828 (2004). Mere belief and conclusory statements in a police officer's affidavit in support of the search warrant application does not provide factual basis for a magistrate to make an independent judgment of the informant's reliability. State v. Steenerson, 38 Wn.App.722 726, 688 P.2d 544 (1984).
Washington Courts apply the two pronged Aguilar/Spinelli[6] analysis to evaluate a CI's reliability. Casto, 39 Wn.App. at 232; State v. Jackson, 102 Wn.2d 432, 435, 688 P.2d 136 (1984). "The first or 'basis of knowledge' prong requires that the informant have personal knowledge of the facts asserted to establish probable cause." Casto, 39 Wn.App. at 233. In the second or "veracity" prong, the magistrate judge must receive factual data from which to determine the informant's present reliability. Id.
A properly executed controlled buy is sufficient to satisfy...
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