State v. Lemmon

• Decision Date: 17 March 2015
• Docket Number: 32291-2-III
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. WARREN L. LEMMON, Appellant.

STATE OF WASHINGTON, Respondent, v. WARREN L. LEMMON, Appellant.

No. 32291-2-III

Court of Appeals of Washington, Division 3

March 17, 2015

UNPUBLISHED OPINION

SIDDOWAY, C.J.

After the trial court denied Warren Lemmon's motion to suppress evidence obtained in a search of his home, he was found guilty of possession of a controlled substance and possession with intent to deliver. He appeals the trial court's denial of his motion to suppress. He argues that the affidavit in support of the search warrant relied on information provided by a confidential informant without providing evidence of the informant's basis of knowledge and veracity required by the Aguilar/Spinelli^[1] test for probable cause. He argues that in denying the motion, the trial court mistakenly relied on the federal "totality of the circumstances" standard.

Mr Lemmon's focus on the trial court's reference to the "totality of the information" is misplaced. Read as a whole, the trial court's findings and conclusions following the CrR 3.6 hearing make clear that it reviewed the warrant affidavit by applying the two-pronged test of Aguilar/Spinelli. For that reason, and because the warrant affidavit was sufficient to establish probable cause we affirm.

FACTS AND PROCEDURAL BACKGROUND

In August 2011, Detective Steve Valley of the Mason County Sheriffs Office sought and obtained a search warrant for Warren Lemmon's motor home and any outbuildings and vehicles on Mr. Lemmon's property. Among information set forth in the detective's affidavit in support of the warrant was the following:

that a confidential informant had told officers that Mr Lemmon "sells Methamphetamine and Heroin and keeps it in his motorhome, " and that the informant "could buy both controlled substances from him";

that information about Mr. Lemmon's drug sales and possession had been "corroborated by multiple reliable sources over the past year";

that officers had conducted a controlled buy at Mr Lemmon's residence during the week of August 8, 2011;

that the controlled buy was initiated by searching the informant for contraband and money; providing him or her with "inventoried monies"; driving the informant to the intersection of Centerline and Rivendell Road, where they let him or her out to walk to Mr. Lemmon's motor home, located at the end of Centerline Road;

that they watched the informant walk to and return from the home to the extent they could, although the affidavit conceded that detectives "couldn't keep a constant visual on [the informant] all the way down to Lemmon's residence, due to the rural setting and location of his residence";

that the controlled buy was completed by picking up the informant on his or her return to the drop off point; taking him or her to a predetermined location without allowing contact with others; recovering from the informant the predetermined amount of methamphetamine that he or she had purchased; and again searching the informant to confirm that he or she had no other contraband or monies;

that in an interview with police after the controlled buy, the informant related that there were two females inside Mr. Lemmon's motor home smoking heroin while he or she was inside buying the drugs; that Mr. Lemmon's motor home was surrounded by a wooden fence and there was a metal gate at the front of the property; that he or she had observed a travel trailer, several cars, and a small shed on the property; and that there was a "very mean pit bull" in a dog house next to the motor home;

that on the same day as the controlled buy, a detective and an animal control officer drove to Mr. Lemmon's property and verified the informant's description of it;

that the informant had provided detectives with information in the past that had led to several arrests and felony charges;

that the informant's ongoing cooperation was motivated by his or her hope to receive a favorable recommendation in connection with pending charges in Mason County in exchange for reliable information leading to successful prosecutions, and

that the informant had made a number of statements against his or her penal interest.

Clerk's Papers (CP) at 57-59.

A search warrant was issued and the sheriffs office executed it on August 15. Among incriminating items found and seized in the search were $3, 874 in cash, 129.7 grams of methamphetamine, 130.4 grams of heroin, 34 methadone pills, 47.4 grams of marijuana, several unused baggies, and a scale with a tar substance on the surface.

Mr. Lemmon was charged with one count of possession with intent to deliver a controlled substance under RCW 69.50.401(1) and one count of possession of a controlled substance under RCW 69.50.4013(1).

Mr. Lemmon moved to suppress the evidence obtained in the search of his property. He argued there was insufficient evidence to establish the reliability of the informant and the controlled buy was improperly executed because the officers were unable to maintain constant surveillance of the informant. The trial court denied the suppression motion. It later entered written findings and conclusions in which it found that there were no disputed facts and concluded that the informant's reliability was supported by evidence of a controlled buy, the informant's motive to provide reliable information in order to receive favorable treatment, and the informant's track record.

Two months later, Mr. Lemmon moved the court to conduct a Franks^[2] hearing, "to determine whether statement(s) made in the application for search warrant by Det. Steve Valley were material omissions or false statements made intentionally or with reckless disregard for the truth." CP at 28. Specifically, he argued that the affidavit "indicated that the setting of the Defendant's residence was 'rural', meaning that there were no other residences located in the area, thus leading to the conclusion that the drugs came from the Defendant's residence." CP at 28-29. The motion was supported by a declaration from Mr. Lemmon, in which he stated that he had measured distances from the intersection of Rivendell and Centerline to his and other residences on Centerline. He testified that there were two residences roughly 250 feet from that intersection, one on either side, and three other residences further down Centerline (416 feet, 581 feet, and 764 feet, respectively). He stated that his own residence, which was at the end of Centerline, was set back 133 feet from the road.

Mr. Lemmon argued that the presence of other residences was inconsistent with Detective Valley's statement in the warrant affidavit that "SOG [Special Operations Group, the narcotics investigation division for Mason County] detectives couldn't keep a constant visual on the PO [police informant] all the way down to Lemmon's residence, due to the rural setting and location of his residence." CP 58 (emphasis added).

The court granted Mr. Lemmon's request for a Franks hearing. At the time of the hearing, Detective Valley testified that Mr. Lemmon's property was at the very end of Centerline, a dead-end road, and that in describing it as "rural, " he meant:

First of all, it was completely wooded. It's off of a private-or, I mean, county road. The county road quit. It was wooded. There was one other house down there on the assessor's page. The assessor's office got it listed as Rural 10, which means it's ten acres or more.

Report of Proceedings (RP) at 81. The State also offered a recent map of the area, obtained from the Internet, along with photographs taken by Detective Valley, that "show[ed] basically the route to Mr. Lemmon's house from where [the detective] dropped the informant off." RP at 86. When cross-examined, the detective admitted that there were driveways and roads in the vicinity, but for the most part he did not know whether they led to other residences. Following the State's evidence, the defense called Mr. Lemmon, who used the State's photographs to describe where neighboring residences were located.

At the conclusion of the hearing, the trial court observed that there was testimony that the area is completely wooded and was zoned Rural 10. Referring to the photographs, the court stated, "[T]here's no contest that this is not an urban setting. There is not multiple houses there." RP at 109. While noting Mr. Lemmon's testimony that there were other residences in the area, the court stated it could not find any misstatement or omission by Detective Valley in light of the detective's testimony that he was unaware of other residences, which the court observed were "not visible from the pictures going down the road." Id. The court concluded, as it had earlier, that the warrant affidavit was sufficient to establish probable cause.

Following a stipulated facts trial, Mr. Lemmon was convicted as charged. He appeals.

ANALYSIS

Mr Lemmon assigns error to the admission of evidence obtained from the search of his home on the basis that the search warrant was not supported by probable cause. He focuses on the trial court's third conclusion of law following the CrR 3.6 hearing, which states, "In determining the reliability of the confidential informant, the Court looks at the totality of the information set forth in the affidavit." CP at 24. He argues from the reference to the "totality of the information" that the court applied the wrong standard in determining the existence of probable cause. He also argues that under the proper standard for evaluating probable cause-the Aguilar/Spinelli test-the evidence was insufficient. We address the assignments of error in turn.

I. The trial court applied the proper standard

We first address Mr. Lemmon's contention that in reviewing whether the warrant affidavit demonstrated probable cause supporting issuance of the search warrant, ...