State v. Klinger

• Decision Date: 16 July 1999
• Docket Number: 24433-1-II,Nos. 23129-8-I,s. 23129-8-I
• Citation: 96 Wn.App. 619,980 P.2d 282
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Bruce G. KLINGER, Appellant. In re the Personal Restraint Petition of: Bruce G. Klinger, Petitioner.

Page 282

96 Wn.App. 619

980 P.2d 282

STATE of Washington, Respondent, v. Bruce G. KLINGER, Appellant In re the Personal Restraint Petition of: Bruce G. Klinger Petitioner.

Nos. 23129-8-II, 24433-1-II.

Court of Appeals of Washington Division 2.

July 16, 1999.

Bradley W. Andersen, Skamania Co Pros Office, Stevenson, for Respondent.

R.A. Lewis, Knapp O'Dell & Lewis, (Court Appointed), Camas, for Appellant.

BRIDGEWATER, C.J.

In his direct appeal and personal restraint petition, Bruce G. Klinger challenges his conviction for felony possession of marijuana. We hold that Klinger's counsel was ineffective for not bringing a motion to suppress evidence found in the storage shed behind Klinger's cabin. We reverse the conviction.

On November 12, 1997, Skamania County sheriff's deputies went to Klinger's home to serve a district court warrant. When the deputies arrived at Klinger's cabin, they observed a truck in the driveway and smoke coming from the chimney, so they knocked on the door. When no one answered, Deputy Brett Robison went to the window and shined his flashlight into the interior. He saw Klinger inside smoking a hand rolled cigarette and ordered him to come to the door. After a short while, Klinger opened the door. The deputies smelled marijuana smoke emanating from the cabin. They took Klinger into custody on the outstanding warrant.

The day after Klinger's arrest, Deputy Robison applied for a warrant to search Klinger's home, vehicle, and "outbuildings." The warrant was issued and in the subsequent search of the cabin deputies found marijuana pipes, "roach clips," marijuana growing literature, and approximately 154 grams of dried marijuana in the storage shed behind Klinger's cabin.

Klinger was convicted of possession of a controlled substance. His appeal of the conviction has been consolidated with his personal restraint petition (PRP).

I. INEFFECTIVE ASSISTANCE OF COUNSEL

In his PRP, Klinger alleges that his trial counsel was ineffective for failing to bring a motion to suppress the marijuana found in the storage shed. Klinger brings this challenge in the form of a PRP because the record on appeal does not contain the warrant affidavit, which he alleges is insufficient to justify a search of the shed. Because this challenge was brought as a PRP, we may consider items not part of the superior court record to determine if Klinger's claim has merit. See RAP 9.10.

To demonstrate ineffective assistance of counsel in Washington, a defendant must satisfy the two-prong test laid out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also State v. Thomas, 109 Wash.2d 222, 743 P.2d 816 (1987). First, a defendant must demonstrate that his attorney's representation fell below an objective standard of reasonableness. Second, a defendant must show that he or she was prejudiced by the deficient representation. Prejudice exists if "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995); see also Strickland, 466 U.S. at 695, 104 S.Ct. 2052 ("When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt."). ¹ There is a strong presumption that a defendant received effective representation. State v. Brett, 126 Wash.2d 136, 198, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996); Thomas, 109 Wash.2d at 226, 743 P.2d 816. A defendant carries the burden of demonstrating that there was no legitimate strategic or tactical rationale for the challenged attorney conduct. McFarland, 127 Wash.2d at 336, 899 P.2d 1251.

A. Deficient Representation

Our Supreme Court has held that the failure to bring a pretrial suppression motion is not per se deficient representation and the defendant bears the burden of showing the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel. McFarland, 127 Wash.2d at 336, 899 P.2d 1251. Klinger has asserted that there was no reasonable basis or strategic reason for defense counsel's failure to bring this motion to suppress, and the State conceded at oral argument that there was none. We agree that the first prong of the Strickland test has been met.

B. Prejudice

The State argues that although counsel was deficient, Klinger was not prejudiced because a motion to suppress would not have been successful if it had been brought. We must therefore review Klinger's claim that the affidavit was insufficient in order to determine if a motion to suppress would have been granted.

A judge's determination that probable cause exists to issue a search warrant deserves great deference on appeal and doubts should be resolved in favor of the warrant's validity. State v. J-R Distributors, Inc., 111 Wash.2d 764, 774, 765 P.2d 281 (1988); State v. Jackson, 102 Wash.2d 432, 442, 688 P.2d 136 (1984). We are to interpret search warrants in a commonsense, practical way, not in a hypertechnical manner. State v. Perrone, 119 Wash.2d 538, 549-51, 834 P.2d 611 (1992). A judge's finding that probable cause exists is reviewed under an abuse of discretion standard. State v. Remboldt, 64 Wash.App. 505, 509, 827 P.2d 282, review denied, 119 Wash.2d 1005, 832 P.2d 488 (1992).

The reviewing court examines the information available to the issuing judge when determining whether there was probable cause for issuance of the warrant. State v. Murray, 110 Wash.2d 706, 709-10, 757 P.2d 487 (1988). Probable cause is established if the affidavit in support of the warrant sets forth facts sufficient for a reasonable person to conclude that the defendant is probably involved in criminal activity and that evidence of the crime can be found at the place to be searched. Perrone, 119 Wash.2d at 551, 834 P.2d 611; State v. Maxwell, 114 Wash.2d 761, 769, 791 P.2d 223 (1990); State v. Garcia, 63 Wash.App. 868, 871, 824 P.2d 1220 (1992). The affidavit in support of the search warrant must adequately show circumstances that extend beyond suspicion and mere personal belief that evidence of a crime will be found on the premises to be searched. State v. Seagull, 95 Wash.2d 898, 907, 632 P.2d 44 (1981); State v. Rangitsch, 40 Wash.App. 771, 780, 700 P.2d 382 (1985). "This is not to suggest, however, that the information linking the things to be seized with criminal activity must always be of the direct sort or that reasonable inferences cannot be drawn from the surrounding circumstances." Garcia, 63 Wash.App. at 873, 824 P.2d 1220 (citing 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE, § 3.7(d), at 102 (2d ed.1987)).

The issue here is whether the affidavit in support of the warrant provided facts sufficient to convince a reasonable judge that evidence of a crime would be found in the shed. The affidavit offered in support of the warrant alleged that the police had observed Klinger smoking a hand-rolled cigarette in his cabin, smelled marijuana smoke coming from the cabin, and observed Klinger in what appeared to be an intoxicated state. It also offered Klinger's arrest record, of which one arrest was for simple possession of marijuana. The deputy offered no other facts to support a search of the cabin and the storage shed other than to say that he "found it common for persons involved in the distribution of controlled substances to secrete controlled substances within their residences, in vehicles, and in outbuildings." The affidavit provides no facts about the shed, who owns it, how close it is to the cabin, or even that the shed exists at all. While the affidavit clearly provides probable cause to search the cabin, there is no specific evidence linking the storage shed in particular to any evidence of a crime.

The State argues that officer testimony about where marijuana is usually found was sufficient to establish the nexus between the evidence and the shed.

"[T]hat nexus may be established either through direct observation or through normal inferences as to where the articles sought would be located." For that reason a "warrant may be upheld when the nexus between the items to be seized and the place to be searched rests not upon direct observation, but on the type of crime, nature of the items, and normal inferences [about] where a criminal would likely hide contraband."

... But the general observations must be based on some specific facts which support an inference that the particular individual is involved in drug dealing and evidence of that activity is likely to be found at the place to be searched.

State v. Thein, 91 Wash.App. 476, 485, 957 P.2d 1261 (1998) (footnotes omitted), review granted, 137 Wash.2d 1001, 972 P.2d 467 (1999); see also State v. Gross, 57 Wash.App. 549, 554, 789 P.2d 317, review denied, 115 Wash.2d 1014, 797 P.2d 513 (1990). The evidence in this affidavit was that Klinger was in possession of marijuana in his cabin. There is no evidence that he was involved in the distribution or manufacture of controlled substances. In fact, the State concedes that this was never a drug trafficking case. ² Thus, these statements about the common behavior of drug traffickers do not establish the required nexus.

Conspicuously missing from the affidavit are any statements by the deputy that it is common for persons who merely possess marijuana to secrete it throughout their premises. At oral argument, the State urged the court to edit the affidavit so that it would leave only the statements that will support the warrant. The only possible reference to persons in possession is on page four of the affidavit, where the deputy states:

I have found that it is common for persons involved in the use and sale of controlled substances to secrete controlled substances and records, concerning the sale and distribution of the substances in and about...