State v. McReynolds

• Decision Date: 28 November 2000
• Docket Number: No. 17843-9-III, No. 17864-1-III.
• Citation: 104 Wash.App. 560,17 P.3d 608
• Parties: STATE of Washington, Respondent, v. Randy Del McREYNOLDS, Appellant. State of Washington, Respondent, v. Amy Jo McReynolds, Appellant.
• Court: Washington Court of Appeals

17 P.3d 608

104 Wash.App. 560

STATE of Washington, Respondent, v. Randy Del McREYNOLDS, Appellant.

State of Washington, Respondent, v. Amy Jo McReynolds, Appellant.

Nos. 17843-9-III, 17864-1-III.

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

November 28, 2000.

As Amended on Denial of Reconsideration and Clarification January 30, 2001.

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

Allen C. Nielson, Deputy Pros. Atty., Colville, for Respondent.

KATO, J.

Randy D. McReynolds appeals his convictions and sentence on multiple counts of possession of stolen property and stolen firearms and unlawful possession of firearms. His wife, Amy Jo McReynolds, appeals her convictions on multiple counts of possession of stolen property. Both appellants contend search warrants leading to their arrests were unlawful; the trial court made several errors in conducting a CrR 3.5 hearing and in concluding Ms. McReynolds' statements to police were admissible; the court erred in failing to dismiss the prosecutions because of an officer's destruction of evidence; and the court erred in instructing the jury on the definition of knowledge. Mr. McReynolds also challenges the court's calculation of his standard sentencing range. We agree that one of the warrants was invalid and remand for additional factfinding regarding evidence that may have been tainted by the resulting search.

These cases arose out of the issuance and execution of five search warrants in Stevens County. In a telephonic application for Warrant 1¹ on December 8, 1997, a police officer stated:

On 12/8/97 at approximately 00:04 hours the affiant was patrolling northbound on Buena Vista Drive passed [sic] the new nursing home construction site. The affiant noticed that the wire gate was open into the site. The affiant then observed a male subject wearing dark clothing run from near one of the office trailers into the construction site. Officer Blackman was notified and responded to the location. Upon checking the area it was found that the padlocks on both wire gates had been cut off, padlocks to several storage trailers had been cut off, and the door to one office trailer had been forced open. There was a large quantity of power tools and hand tools lined up outside one of the storage trailers. There was a small air compressor and a small generator outside the office trailer. Officer Blackman and affiant observed a gray pickup drive past the site two times. When the pickup was several hundred yards away the affiant heard a voice yell and the pickup slowed or stopped on the road. Officer Blackman stopped the pickup and identified the driver as Randy McReynolds with an address of 362 Aladdin Road. The passenger was identified as Jeffery Sears. They were both then released. The owner of the Construction Company, John Steinbach, arrived at the scene. He stated that all the trailers had been padlocked or locked and all the tools outside had been in the trailers. Ron Anderson of Anderson Construction arrived. He had the key to the remaining office trailer that appeared to not have been broken into. He unlocked the door and it was discovered that the door had been kicked in and then re-locked. Upon opening the door Officer Blackman located a subject wearing camouflage pants, a dark sweatshirt, and gloves lying on the floor under a workbench. The subject was identified as Eugene McReynolds. He is the uncle of Randy McReynolds who was driving the pickup and lived at the same address. Behind another door inside the trailer the affiant located another subject wearing dark clothing and gloves. He was identified as Leonard Wolf. Both subjects also had small flashlights with them. Both subjects were placed under arrest for burglary and attempted theft. There was an iron pry bar sitting on top of a bucket next to where the second subject was located. Ron Anderson stated that the pry bar was not in the trailer before. The pry bar had the initials E.A. inscribed on it. There was a burglary reported on 11/3/97 at Haney's construction site on North 395 in Colville where a large quantity of tools had been taken from. Many of these tools had the initials E.A. inscribed on them by the owner. Both subjects were then booked into the Stevens County Jail.

On the basis of these facts, a Stevens County District Court judge approved a warrant to search "[a] 2 story white frame dwelling and detached garage storage area" at 362 Aladdin Road in Colville. In executing the warrant, officers also searched a separate outbuilding, from which they seized several items.

Officers then applied for and obtained Warrant 2, which authorized the search of a camper located on the property in which Leonard Wolf lived. After executing that warrant, the officers then applied for and obtained Warrant 3, which authorized another search of the dwelling, garage, and camper.

The officers then sought and obtained warrants to search the Aladdin Road dwelling, the garage, and the camper (Warrant 4) and to search a 14-foot U-Haul truck (Warrant 5). Identical affidavits supporting the warrant applications listed items seized and observed in the earlier searches (and identifying various items that had been reported stolen) and statements by various persons living at the residence at the time of the searches, as well as the following facts: (1) Officers had learned that Randy McReynolds had rented a storage unit, whose owner told them Randy and Amy Jo McReynolds had gone to the unit with a U-Haul truck and cleaned it out, saying they were moving to Deer Park; (2) when renting the U-Haul truck, Ms. McReynolds listed the destination as Toppenish; (3) Harold Sears, who lived at the residence, had told officers that Randy McReynolds had sold items to a man from a second-hand store approximately two weeks earlier; (4) while attempting to locate the U-Haul truck, officers interviewed Amy Jo McReynolds, who told them where the truck was located but stated that not all of the items on the truck were stolen; (5) officers searched the car driven by Amy Jo McReynolds and seized items she admitted did not belong to them, some of which had been reported stolen; (6) officers arrested Randy McReynolds near where they found the U-Haul truck, and he answered "yes" when asked if the truck contained stolen items; and (7) in another statement, Amy Jo McReynolds told officers that she and Randy McReynolds loaded various items from their pickup into the U-Haul truck.²

Randy McReynolds was charged with five counts of first degree burglary, four counts of second degree burglary, three counts of first degree possession of stolen property, eight counts of second degree possession of stolen property, seven counts each of possession of a stolen firearm and first degree unlawful possession of a firearm, one count of first degree theft, one count of attempted first degree theft, and one count of second degree malicious mischief. Amy Jo McReynolds was charged with three counts of first degree possession of stolen property, eight counts of second degree possession of stolen property, and five counts of possession of a stolen firearm. The superior court joined the cases for trial.

During pretrial proceedings, the court concluded the application for Warrant 1 established probable cause to issue the warrant. However, the court held that the officers unlawfully searched the outbuilding because it was beyond the scope of Warrant 1. The court thus excised from subsequent warrant applications any references to evidence seized in the unlawful search of the outbuilding. The court nevertheless concluded the officers' applications for the remaining warrants also established probable cause.

A jury found Randy McReynolds guilty of three counts of first degree possession of stolen property, six counts of second degree possession of stolen property, two counts of third degree possession of stolen property, and three counts each of possession of a stolen firearm and first degree unlawful possession of a firearm. The jury found Amy Jo McReynolds guilty of three counts of first degree possession of stolen property and six counts of second degree possession of stolen property.

The primary issue here is whether the affidavit in support of Warrant 1 established probable cause to search the Aladdin Road property. The Supreme Court recently reviewed the basic law regarding review of a magistrate's decision to issue a search warrant:

A search warrant may issue only upon a determination of probable cause. State v. Cole, 128 Wash.2d 262, 286, 906 P.2d 925 (1995). An application for a warrant must state the underlying facts and circumstances on which it is based in order to facilitate a detached and independent evaluation of the evidence by the issuing magistrate. State v. Smith, 93 Wash.2d 329, 352, 610 P.2d 869[, cert. denied, 449 U.S. 873, 101 S.Ct. 213] (1980); State v. Helmka, 86 Wash.2d 91, 92-93, 542 P.2d 115 (1975). Probable cause exists if the affidavit in support of the warrant sets forth facts and circumstances sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime can be found at the place to be searched. Cole, 128 Wash.2d at 286, 906 P.2d 925; State v. Dalton, 73 Wash.App. 132, 136, 868 P.2d 873 (1994). Accordingly, "probable cause requires a nexus between criminal activity and the item to be seized, and also a nexus between the item to be seized and the place to be searched." State v. Goble, 88 Wash.App. 503, 509, 945 P.2d 263 (1997) (citing WAYNE R. LAFAVE, SEARCH AND SEIZURE § 3.7(d), at 372 (3d ed.1996)).

State v. Thein, 138 Wash.2d 133, 140, 977 P.2d 582 (1999).

In Thein, the court rejected an argument that the necessary nexus is established when there is evidence a person is engaged in drug dealing and the person resides in the place to be searched. Id. at 146-50, 977 P.2d 582. The court expressly overruled State v. O'Neil, 74 Wash.App....