State v. Jacobs

• Decision Date: 23 March 2004
• Docket Number: No. 28384-1-II, No. 28419-7-II.
• Citation: 89 P.3d 232,121 Wash. App. 669,121 Wn. App. 669
• Parties: STATE of Washington, Respondent, v. James Allen JACOBS, Appellant. State of Washington, Respondent, v. Kathy Ann Austin-Bocanegra, Appellant.
• Court: Washington Court of Appeals

89 P.3d 232

121 Wn. App. 669

121 Wash. App. 669

STATE of Washington, Respondent, v. James Allen JACOBS, Appellant.

State of Washington, Respondent, v. Kathy Ann Austin-Bocanegra, Appellant.

Nos. 28384-1-II, 28419-7-II.

Court of Appeals of Washington, Division 2.

March 23, 2004.

Publication Ordered April 27, 2004.

Patricia Anne Pethick, Attorney at Law, Tacoma, WA, Thomas Edward Doyle, Attorney at Law, Hansville, WA, for Appellants.

Steven Curtis Sherman, Thurston County Pros. Office, Olympia, WA, for Respondent.

HOUGHTON, J.

In this consolidated appeal, James Jacobs and Kathy Austin-Bocanegra argue that their jury convictions of unlawfully manufacturing a controlled substance should be reversed based on insufficient evidence. They also argue evidentiary and sentencing errors, ineffective assistance of counsel, and judicial and prosecutorial misconduct. We affirm.

FACTS

In the early hours of March 21, 2001, Jennifer Hand spoke to Deputy Westby at the Thurston County Sheriff's Office. Hand managed an Olympia mobile home park and had received numerous complaints from tenants that a chemical odor emanated from space 7. Jacobs and Austin-Bocanegra lived in space 7 with their three-month-old child. Hand also told Westby that she had personally smelled the chemical odor and that a mutual friend told her that Jacobs and Austin-Bocanegra were "cooking meth." Austin-Bocanegra Clerk's Papers (CP) at 26.

On the morning of March 22, two sheriff's deputies investigated Hand's complaint. Lieutenant Brad Watkins, a detective, and Deputy Steve Hamilton, a uniformed officer, went to the mobile home park. Both deputies knew that Austin-Bocanegra had an outstanding Thurston County misdemeanor arrest warrant.

As they approached the house, the deputies detected chemical odors that they "associated with the production of Methamphetamine." CP at 18. When Jacobs answered the door, he told the deputies that he lived in the mobile home. The deputies advised him that they were investigating a tip that his home was a suspected methamphetamine lab. Jacobs denied manufacturing methamphetamine.

The deputies also told Jacobs that they sought Austin-Bocanegra because she had an outstanding misdemeanor warrant. Jacobs told the deputies that Austin-Bocanegra was not home, but that their child was asleep inside.

The deputies thought Jacobs appeared to be under the influence of methamphetamine. On his own, Jacobs admitted that he used methamphetamine, including the night before. He also admitted to having liquid chemicals outside his house, some of which he deposited in a nearby dumpster. According to the deputies, the odor from the dumpster was similar to the odor wafting from the home. Jacobs told the deputies that "someone" left the chemicals at his house but that he did not know what the chemicals were. CP at 21.

Based on their conversation, Hamilton decided to detain Jacobs. The deputy could clearly see a weapon-sized suspicious bulge in Jacobs' front pants pockets, although Jacobs denied having anything in his pockets. The bulge appeared to be consistent with the cylinder of a revolver or a bullet magazine.

In lieu of a safety search, the deputies asked Jacobs to turn out his front pants pockets. When Jacobs took a knife out of his pocket, a clear film canister fell to the ground, rolling near the deputy's foot. Hamilton picked up the canister and noticed white powder; it later field tested positive for methamphetamine. Hamilton then advised Jacobs of his Miranda¹ rights and placed him under arrest for unlawfully possessing a controlled substance.

Hamilton and Watkins continued to believe that Austin-Bocanegra and her infant were in the mobile home, even though Jacobs denied it. After asking the Thurston County Narcotics Task Force (TNT) to respond and secure the scene, Watkins called into the home for Austin-Bocanegra to come out. She appeared at the door of the mobile home holding the baby.

Hamilton told Austin-Bocanegra that she was under arrest on her outstanding warrant and advised her of her Miranda rights. Austin-Bocanegra said that she understood her rights and then she waived them.

The deputies also thought Austin-Bocanegra appeared to be under the influence of methamphetamine. In response to Hamilton's questioning, she told him she last used methamphetamine four days before. But she denied living in the mobile home or knowing anything about a methamphetamine manufacturing lab.

At 12:35 P.M. the same day, Ben Elkins, a TNT detective, applied for a search warrant. In his affidavit, he averred that he was "looking for ... a possible methamphetamine lab located within" Austin-Bocanegra and Jacobs' mobile home. CP at 25. And because of his "training and experience from going to other ... labs" and his education in clandestine laboratory operations, he felt confident that the mobile home harbored a methamphetamine manufacturing lab. CP at 29. Elkins based his probable cause affidavit on his personal investigation of the site, his conversation with Jacobs, and the information Watkins, Hamilton, and Hand provided.

Based on the affidavit, a magistrate determined that there was probable cause to issue a search warrant. During the later search, some of the items seized included red stained coffee filters, a plastic gram scale with white residue, Red Devil lye, over-the-counter cold pills and tablets, and an air purifying respirator.

The State charged Jacobs and Austin-Bocanegra as co-defendants with unlawful manufacture of a controlled substance in violation of RCW 69.50.401(a)(1)(ii), .435(a)(3), and RCW 9.94A.605 (formerly RCW 9.94A.128 (2001)) (count I), and criminal mistreatment in the second degree in violation of RCW 9A.42.030 (count II).

After trial, the jury found Jacobs and Austin-Bocanegra guilty of count I, but not of count II. The jury also returned special verdicts, finding Jacobs and Austin-Bocanegra guilty of (1) manufacturing methamphetamine where a person under the age of eighteen is on the premises and (2) manufacturing a controlled substance within 1,000 feet of a school bus stop.

ANALYSIS

Motion to Suppress

Jacobs and Austin-Bocanegra first contend that the trial court erred in denying their motions to suppress. They assert that Elkins' affidavit did not provide sufficient probable cause to issue the mobile home search warrant and, as such, the trial court should have suppressed all evidence seized during the search.

Specifically, Jacobs and Austin-Bocanegra assert that the affidavit did not set forth a sufficient factual basis to rely on the informant's information that they were manufacturing methamphetamine. And they argue that the affidavit failed to identify Lieutenant Watkins' and Deputy Hamilton's education and experience in identifying unlawful controlled substance odors.

We review a motion to suppress by determining whether substantial evidence exists to support the trial court's findings and then whether those findings in turn support the trial court's conclusions of law. State v. Ross, 106 Wash.App. 876, 880, 26 P.3d 298 (2001), review denied, 145 Wash.2d 1016, 41 P.3d 483 (2002). We consider unchallenged findings as verities on appeal. Ross, 106 Wash.App. at 880, 26 P.3d 298.

And we review a search warrant affidavit for abuse of discretion. State v. Seagull, 95 Wash.2d 898, 907, 632 P.2d 44 (1981). A trial court abuses its discretion when it renders a decision on untenable grounds or for untenable reasons. State v. Brown, 132 Wash.2d 529, 572, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007, 118 S.Ct. 1192, 140 L.Ed.2d 322 (1998). We give great deference to the issuing magistrate. State v. Cole, 128 Wash.2d 262, 286, 906 P.2d 925 (1995). In doing so, we evaluate the affidavit from a commonsense and reasonable person approach. We require the magistrate to draw inferences from factual information, not from broad generalizations. State v. Thein, 138 Wash.2d 133, 148-49, 977 P.2d 582 (1999); Cole, 128 Wash.2d at 286, 906 P.2d 925.

A magistrate properly issues a search warrant when probable cause exists from sufficient facts and circumstances reasonably establishing that either criminal activity is taking place or illegal substances are present at a certain location. Cole, 128 Wash.2d at 286, 906 P.2d 925. When facts standing alone do not support probable cause, it is still possible that they do so when viewed as a whole with other facts. Cole, 128 Wash.2d at 286, 906 P.2d 925.

In reviewing an affidavit of probable cause that relies on an informant's tip, we use the Aguilar-Spinelli two-prong analysis. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Cole, 128 Wash.2d at 287, 906 P.2d 925. The affidavit must sufficiently identify the basis for the informant's information and establish the informant's credibility. Cole, 128 Wash.2d at 287, 906 P.2d 925. If one prong of the analysis is not satisfied, an independent police investigation corroborating the informant's information may suffice to support the missing Aguilar-Spinelli prong and establish probable cause. State v. Vickers, 148 Wash.2d 91, 112, 59 P.3d 58 (2002); Cole, 128 Wash.2d at 287, 906 P.2d 925.

Here, the affidavit explains that Hand not only smelled chemical odors coming from space 7, but also she received tenant complaints about the noxious odors. And a mutual friend told her that Jacobs and Austin-Bocanegra were manufacturing methamphetamine with their young son present.

The State concedes that Hand's information alone fails to establish either prong of Aguilar-Spinelli. But Watkins and Hamilton investigated Hand's complaint and reported their findings to Elkins, corroborating Hand's information. Both deputies independently described a strong "iodine smell of chemical odor" emanating from the mobile home, the odor increasing with the door open and decreasing with the door closed. And Jacobs admitted to living...