State v. Hankins

• Decision Date: 08 January 2008
• Docket Number: 35604-0-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. TIMOTHY HANKINS, Appellant.

STATE OF WASHINGTON, Respondent, v. TIMOTHY HANKINS, Appellant.

No. 35604-0-II

Court of Appeals of Washington, Division 2

January 8, 2008

UNPUBLISHED OPINION

HOUGHTON C.J.

Raymond Timothy Hankins appeals his conviction of unlawful methamphetamine manufacture. He argues that numerous errors require reversal of his conviction and vacation of his sentence. We affirm.

FACTS

On January 25, 2005, Detective Eugene DuPrey obtained a search warrant to search Duane's^[1] and Robert Cullens' adjoining properties, based on a confidential informant's tip that he would find remnants of a methamphetamine lab there that had been operated at Hankins's residence. The confidential informant was Kim Gautreaux, Hankins's girl friend. In obtaining the search warrant, DuPrey did not disclose to the issuing magistrate the informant's name her criminal history, or that she was incarcerated at the time that she gave him the tip.^[2]

Relevant to the present case, Gautreaux was incarcerated in Thurston County jail on November 16, 2004; she was released for five hours under the county's work release program on November 17, and again for a 10-day period on December 5.^[3] She reported to DuPrey that, while out on work release, she cleaned up a methamphetamine lab at Hankins's residence after Hankins made a batch of methamphetamine and he then cleft for Mexico. She reported that she had been trying to contact DuPrey ever since, out of fear of the consequences of her association with a methamphetamine lab while out on work release.

Gautreaux provided DuPrey with details about the cleanup, notably that garbage bags containing methamphetamine lab remnants had been loaded into Hankins's blue pickup truck and dumped on the Cullenses' properties; methamphetamine lab sludge had been stored in paint cans in Hankins's garage; the bathroom walls had been painted to cover up iodine stains on the walls; and Hankins regularly cleaned up his lab after cooking methamphetamine because he had visitation with his daughter and did not want to expose her to the lab hazards.

After receiving Gautreaux's tip, DuPrey visited the Cullenses' properties. He found numerous garbage bags containing materials matching her description of the type that he recognized as commonly found in red phosphorus-type (red-P) methamphetamine manufacture, at which point he obtained a search warrant to continue searching the properties.

Based on his search, DuPrey made a second request to the magistrate the same day to obtain a warrant to search Hankins's residence. DuPrey reported to the magistrate his discovery of methamphetamine lab waste matching Gautreaux's description and also that the garbage contained notes and records with Hankins's name on them, a work release bag with Gautreaux's name on it, and evidence that work release prisoners were using Hankins's painting company as a place of employment.

DuPrey also informed the magistrate of the following: (1) he had received a crime stoppers tip regarding a methamphetamine lab at Hankins's residence, a report that Hankins had purchased a gallon of iodine, and information from prisoners that Hankins was allowing work release inmates to use his company address to falsify their place of employment; (2) the Cullenses had confirmed that the garbage dumped on their property had earlier been located in the back of Hankins's blue pickup truck, which was parked on their property for a period of time; (3) Hankins's name had come up several times in connection with investigations of methamphetamine lab activity; and (4) DuPrey had visited Hankins's residence multiple times to follow up, but Hankins had always been reluctant to allow a search. The magistrate found probable cause and issued the warrant.

DuPrey and other officers then searched Hankins's residence. Hankins arrived home while the search was in progress, and police found a bag of methamphetamine on his person. Inside the residence, officers found: (1) a container of HEET; (2) electric burners; (3) glass jars containing bi-layer and tan liquids; (4) a plastic straw with methamphetamine residue (5) a pen altered to ingest narcotics; (6) prescription bottles missing labels; (7) a baggy with methamphetamine residue in a child's bedroom; (8) a funnel; (9) stained coffee filters; (10) two bottles of hydrogen peroxide; (11) cold tablets; (12) a bottle of muriatic acid; (13) a bottle of drain opener; (14) a bottle of Clorox detergent; and (15) flares containing red phosphorus. Officers also found a glass jar in the freezer containing a bi-layer liquid and clear white cloudy substance, later determined to be methamphetamine dissolved in acetone.

The State charged Hankins, either as a principal or accomplice with one count of unlawful manufacture of a controlled substance, methamphetamine, RCW 69.50.401(1)(2)(b), on January 25, 2005.

Hankins filed an amended CrR 3.6 motion to suppress, arguing that the magistrate issued the warrant to search his residence without probable cause because Gautreaux's tip was not contemporaneous, she did not meet the Aguilar-Spinelli test and the affidavit did not provide probable cause to search Hankins's residence.^[4] Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The trial court denied his motion, finding in part that "[e]vidence of methamphetamine labs is long-lived." Clerk's Papers (CP) at 97 (finding of fact 2.3). It also denied his motion for reconsideration.

A jury heard the matter.^[5] The State presented no theory that Hankins acted as an accomplice to an identified principal. Two witnesses testified that Gautreaux participated in the methamphetamine lab cleanup inside Hankins's home while he was away in Mexico and that Hankins was out of the country for the entire period that Gautreaux was on work release.

At the close of trial, the trial court instructed the jury that to convict Hankins it must find him guilty as an accomplice to the manufacture of a controlled substance. The State offered no alternative instruction to find him guilty as either a principal or accomplice. The jury convicted him of one count of methamphetamine manufacture on January 25, 2005.

Hankins then filed a motion to arrest judgment, arguing that the evidence was insufficient to convict him because already-manufactured methamphetamine mixed in acetone does not constitute manufacture and because the State failed to present any evidence that he was an accomplice to another person who mixed methamphetamine in acetone. The trial court denied his motion. He appeals.

ANALYSIS

Confidential Informant's Tip

Hankins first assigns error to the trial court's conclusion that Gautreaux's information was not stale and its denial of his motion to suppress and motion for reconsideration on that basis. He argues that Gautreaux's tip was not sufficiently contemporaneous because she informed DuPrey about physical evidence dumped on the Cullenses' property in November 2004, but DuPrey did not execute the search warrant for Hankins's residence until January 2005. He contends it was not possible for Gautreaux to have contemporaneous information about alleged illegal activity taking place at Hankins's residence in January 2005 because she was incarcerated at the time.

We review the trial court's conclusions of law de novo. State v. Gaddy, 152 Wn.2d 64, 70, 93 P.3d 872 (2004). In reviewing the issue of staleness in a probable cause determination, we consider the information presented to the issuing magistrate and look to the totality of the circumstances to evaluate whether the facts underlying the search warrant are stale. State v. Maddox, 152 Wn.2d 499, 506, 98 P.3d 1199 (2004). Information is not stale "if the facts and circumstances in the affidavit support a commonsense determination that there is continuing and contemporaneous possession of the property intended to be seized." Maddox, 152 Wn.2d at 506. See also State v. Bohannon, 62 Wn.App. 462, 470, 814 P.2d 694 (1991) (the test for staleness is a commonsense one to determine if the facts are adequate to support a conclusion by a neutral magistrate that the evidence sought is still located on the premises).

In evaluating staleness, length of time is only one factor we consider along with other relevant circumstances, including the nature and scope of the suspected criminal activity. See Maddox, 152 Wn.2d at 506 (observing the majority rule in other jurisdictions that the staleness determination depends on the nature of criminal activity, the length of the activity, and the nature of the property to be seized, and citing Andresen v. Maryland, 427 U.S. 463, 478 n.9 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), for its finding of probable cause despite a three-month delay in a warrant's execution because of the nature of the documentary evidence and the defendant's ongoing criminal activity); State v. Perez, 92 Wn.App. 1, 9, 963 P.2d 881 (1998) (staleness involves not only duration but also the probability that items sought in connection with criminal activity will be on the premises at the time of the search); State v. Higby, 26 Wn.App. 457, 460-61, 613 P.2d 1192 (1980) (in determining whether criminal activity is ongoing for purposes of probable cause, a tabulation of the intervening number of days is but one factor to consider along with other circumstances, including the nature and scope of suspected criminal activity).

In State v. Hall, the court considered whether a two-month lapse between the informant's tip and execution of the search warrant rendered the tip stale; there, the informant had reported his earlier observations of the defendant's home marijuana grow operation. 53 Wn.App 296, 299-300, 766 P.2d 512 (1989). The court found...