State v. McReynolds, 20863-0-III, 20887-7-III, 21222-0-III, 21240-8-III.

• Decision Date: 10 June 2003
• Docket Number: No. 20863-0-III, 20887-7-III, 21222-0-III, 21240-8-III.,20863-0-III, 20887-7-III, 21222-0-III, 21240-8-III.
• Citation: 117 Wash.App. 309,71 P.3d 663
• Parties: STATE of Washington, Respondent, v. Amy Jo McREYNOLDS, Appellant. State of Washington, Respondent, v. Randy D. McReynolds, Appellant. In the Matter of the Application for Relief from Personal Restraint of: Randy D. McReynolds, Petitioner. In the Matter of the Application for Relief from Personal Restraint of: Amy Jo McReynolds, Petitioner.
• Court: Washington Court of Appeals

71 P.3d 663

117 Wash.App. 309

STATE of Washington, Respondent, v. Amy Jo McREYNOLDS, Appellant.

State of Washington, Respondent, v. Randy D. McReynolds, Appellant.

In the Matter of the Application for Relief from Personal Restraint of: Randy D. McReynolds, Petitioner.

In the Matter of the Application for Relief from Personal Restraint of: Amy Jo McReynolds, Petitioner.

No. 20863-0-III, 20887-7-III, 21222-0-III, 21240-8-III.

Court of Appeals of Washington, Division 3. Panel Nine.

June 10, 2003.

David N. Gasch, Spokane, Anna K. Nordtvedt, Newport, for Appellants.

Allen C. Nielsen, Deputy Prosecuting Attorney, Colville, for Respondents.

John D. Blair-Loy, Washington Assoc. of Criminal Defense Lawyers, Spokane, for Amicus Curiae.

KATO, A.C.J.

These consolidated appeals and personal restraint petitions renew the challenges by Randy D. McReynolds of his convictions and sentence on multiple counts of possession of stolen property and stolen firearms and unlawful possession of firearms, and by Amy Jo McReynolds of her convictions and sentence on multiple counts of possession of stolen property. The primary issues here are (1) whether the fifth of five search warrants was valid despite the invalidity of the first four; (2) whether a new trial is required because evidence obtained from the invalid warrants was admitted in the original trial; and (3) whether the multiple convictions for possession of stolen property violate the prohibition against double jeopardy. We reverse and remand for a new trial.

The facts of the case are explained in our decision in State v. McReynolds, 104 Wash. App. 560, 17 P.3d 608 (2000), review denied, 144 Wash.2d 1003, 29 P.3d 719 (2001). We held there that the first of five search warrants issued in the case was invalid and remanded to the trial court for additional findings on the question whether subsequently obtained evidence was tainted by the initial, unlawful search. Id. at 568-72, 17 P.3d 608. On remand, the State stipulated that Warrants 2, 3, and 4 were tainted by Warrant 1. However, the State contended that Warrant 5 remained untainted.

The trial court held that "[t]he taint of the unlawful search was attenuated, or dissipated such that it did not taint the evidence obtained [from a U-Haul truck under Warrant 5]." Randy Clerk's Papers (RCP) at 82; Amy Clerk's Papers (ACP) at 58. The court noted that Warrants 1 and 5 were four days apart and held they were "not in close temporal proximity." RCP at 82; ACP at 58. The court noted that both defendants' admissions were knowing and voluntary, two and three days after Warrant 1 was served, and that the officers' search of the McReynoldses' car was consensual. The court found the officers' conduct was not egregious, because they sought and received warrants, which only later were found to be unlawful, rather than conducting searches without authority.

Finally, the court held that "[a] number of meaningful intervening circumstances" occurred between Warrant 1 and the search of the U-Haul truck under Warrant 5:(1) an anonymous tip about the McReynoldses' use of a rented storage unit; (2) an interview with the owner of the storage unit; (3) an interview with the person who rented the Haul to Amy Jo McReynolds; (4) an interview with a man who lived on the same property as the McReynoldses; (5) the questioning of Amy Jo McReynolds and her subsequent consent to a search of her vehicle; (6) the arrest of Randy McReynolds; (7) the questioning of Randy McReynolds after his arrest; (8) the location of the U-Haul truck; and (9) interviews with two others who lived on the same property as the McReynoldses. RCP at 83; ACP at 59.

The court found that large portions of the officers' affidavit in support of Warrant 5 were tainted by the earlier searches, and it redacted them from the affidavit. The redacted affidavit provided:

On 12/09/07 a search warrant was served at 362 Aladdin Road, Colville. Residing at that location is Harold and Donna Sears who have rented the property, as well as their stepson Randy McReynolds and his wife Amy Jo along with 3 small children, Donna Sears brother Eugene McReynolds and his wife Susan, Harold and Donna's son Jeff Sears, daughter Angie Moen with 2 kids and residing in a camper on the property was a Leonard Wolf, a friend of the family. Eugene McReynolds and Leonard Wolf were in custody in the Stevens County Jail at the time of the Search Warrant service, however Randy McReynolds had just bailed out of jail and had returned to the residence.

Harold and Donna Sears had advised the officers on the 9th that if they needed to return a Search Warrant for their residence and garage would not be necessary as they would give permission. Contact was made with Harold Sears and he was requested to come to the Sheriff's Office to discuss the ongoing investigation which he did. Det. Paramore and Capt. Webb also received information at the same time that Randy McReynolds had rented a storage unit, believed to be near the Auto View Drive Inn, between Colville and Kettle Falls, and further that he may be getting ready to leave the area this p.m., possibly in possession of stolen property.

Det. Paramore called the owner of the Storage Unit and asked if the McReynolds had in fact rented a unit at that location. Paramore was advised that Randy McReynold[s] had rented a unit, and further was advised that Randy McReynold[s] and his wife Amy Jo had been out to the unit on this date with a U-Haul truck and had cleaned it out, stating they were moving to Deer Park.

Det. Baskin called Tim Smith at Performance Motors and confirmed that Amy Jo McReynold[s] had in fact rented a 14' Diesel Ford U-Haul truck on this date, listing their destination as Toppenish, WA. Smith was requested to provide the license number on the vehicle as soon as he could obtain it, and subsequently notified Stevens County Dispatch that the license #was 1877B—Indiana plate. Further descriptor information on the truck provided by Smith was that the truck number was 2746Z.

The day after the confrontation occurred, H. Sears advised that a man from the second hand store, located in Ferry County near Boyds had come to the residence with a horse trailer and bought items from R. McReynolds. When H. Sears was asked if R. McReynolds or Amy Jo McReynolds had rented a storage unit he advised the he didn't know, however the items had to go somewhere. He further advised that Eugene & Susan McReynolds shared J. Sears room due to the cramped living conditions in the house, however continued to state that he didn't know how the gun ended up under Jeff's mattress.

When asked about other family members living in the area, H. Sears advised that another daughter (sister of Randy McReynolds), Mindy and her husband Josh Shay lived just down the road from them. He further advised that when he left the residence to come and talk to us, that R. McReynolds was at the residence with Amy Jo, and they had arrived in their blue [O]ldsmobile, however Randy's pickup had been missing most of the day, and still was not at the residence.

Detective Caruso and Deputy M. George were sent to the residence to maintain surveillance and to attempt to locate the U-Haul truck identified as rented by them. Upon initially checking the area, both the car and the pickup appeared to be gone from the residence, and no U-Haul truck was observed, however while maintaining surveillance of the residence, both the pickup and car returned. Detective Caruso and Deputy George made contact with the people at the residence and interviewed Amy Jo McReynolds. McReynolds gave them permission to search the vehicle's [sic] which were registered to her, and further advised that her husband Randy was at the Hilltop Restaurant at Addy with the U-Haul truck and that "not all of the items in the truck were stolen, some of them were theirs". Amy Jo further advised that she had the key to the U-Haul truck and that it was the only key to the truck and that Randy was awaiting her return. Detective Caruso called Det. Paramore and advised him of the above statement and that there were 4 guns in the U-Haul and advised caution because the weapons were in an unknown location. Upon conducting the search of the vehicles, registered to Amy Jo McReynolds specifically identified as an Oldsmobile, License # 850DYY and a Chevy pickup with Washington License # A80909A, items were seized which Amy Jo advised Detective Caruso and Deputy George did not belong to them.

Deputy's [sic] P. Murray and M. Foster were asked to respond to the Addy Hilltop Inn to attempt to locate the U-Haul truck in question as well as R. McReynolds. Upon arriving in the Addy area, Randy McReynolds was contacted and arrested by the officers walking just North of the Hilltop Inn, on S.R. 395.[T]he fact that R. McReynolds was leaving the area with a U-Haul truck which by his wife's own admission contained stolen property[.] The U-Haul truck with Indiana license plate # 1877B was located at the Hilltop Inn on the North side. Upon Det. Baskin reading R. McReynolds his rights, Randy advised that he loaded all of their stuff, and all of Lenny's (Wolf's) stuff in the truck. Det. Baskin asked him if it was stolen stuff, and he said "yes" he loaded all of the stolen stuff on the truck, because he didn't want to leave all of the stolen items scattered around the yard at the storage shed. The U-Haul truck was subsequently impounded at Davis Towing until a search warrant could be obtained. While at the scene of the U-Haul truck in Addy, Det. Baskin and Det. Paramore noted that the snow on the ground behind the U-Haul truck was packed down, and that there was bark on the ground behind the tracks and further that there was a small cylinder hone on the rear bumper.

Following R. McReynolds arrest, contact was made with his sister and brother-in-law, Mindy and Josh Shay. Mindy and Josh Shay revealed that earlier on this date, Randy McReynolds was at their residence. Josh Shay

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