State v. O'Neil

• Decision Date: 13 June 1994
• Docket Number: 33241-4-I,Nos. 33240-6-,s. 33240-6-
• Citation: 879 P.2d 950,74 Wn.App. 820
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Appellant, v. Thomas Harold O'NEIL, Richard Brian O'Neil, Craig Alan Porter, Defendants, Regan W. Hagar and Leigh Anne Bryan, Respondents.

Page 820

74 Wn.App. 820

879 P.2d 950

STATE of Washington, Appellant, v. Thomas Harold O'NEIL, Richard Brian O'Neil, Craig Alan Porter, Defendants Regan W. Hagar and Leigh Anne Bryan, Respondents.

Nos. 33240-6-I, 33241-4-I.

Court of Appeals of Washington Division 1.

June 13, 1994.

Publication Ordered July 8, 1994. Reconsideration Denied

Sept. 15, 1994.

Ellen O'Neill-Stephens, Scott Michael O'Toole, Seattle, for appellant.

Anthony Savage, James Strickland Kempton, Seattle, for respondents.

WEBSTER, Chief Judge.

The State appeals the suppression of evidence and termination of charges of Possession with Intent to Manufacture or Deliver Marijuana and Conspiracy to Commit a Violation of the Uniform Controlled Substances Act (VUCSA) against Regan W. Hagar and Leigh Anne Bryan. It claims the court erred in finding insufficient connection between co-defendant Thomas O'Neil and the house searched.

FACTS

Seattle police executed a search warrant at 7222 Palatine Avenue North; they discovered 40 mature marijuana plants, valued at approximately $80,000, and 30 pounds of marijuana shake, valued at $12,000. They also discovered paraphernalia associated with manufacturing marijuana, business records, and documents of dominion and control connecting O'Neil, Hagar and Bryan to the grow operation.

The search warrant authorized the police to search for evidence, contraband and the fruits of criminal activity at a number of locations associated with Thomas O'Neil: four houses, two businesses, one vehicle, and a storage unit. Hagar and Bryan brought a motion to dismiss; after briefing and argument the court concluded that the affidavit supporting the application for the search warrant failed to establish probable cause that co-defendant O'Neil was living or storing records at the Palatine residence. The court denied the State's reconsideration motion, issued written findings of fact and conclusions of law, and the order to suppress. The court entered an order terminating Counts III (VUCSA) and V (defrauding a public utility) and stayed the trial of the remaining conspiracy charge (Count IV) pending this appeal. RAP 2.2(b)(2). ¹

DISCUSSION

The State claims the court improperly concluded that there was insufficient probable cause to support issuance of the search warrant. It does not dispute the written findings of fact, but assigns error to the court's legal conclusion that "[p]robable cause to authorize a search warrant for the Palatine address requires a finding of substantial evidence in the underlying affidavit that O'Neil was living at the Palatine address." It argues that the search warrant affidavit was sufficient for a reasonable inference that O'Neil resided at the Palatine address and the magistrate's probable cause determination should have been accorded great deference. ² Bryan and Hagar claim the State has improperly assigned error to oral comments made by the court (assignments of error 2-7) alleging they are not proper assignments of error as required by RAP 10.3(g). However, in reviewing the validity of a search warrant

[t]he trial court does not resolve factual conflicts but, like this court, simply determines as a matter of law whether probable cause has been established. Unless the trial court considers other matters such as whether false statements were made intentionally or in reckless disregard of the truth in support of the warrant, as in Franks v. Delaware, 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674 (1978) or material omissions of fact as in United States v. Martin, 615 F.2d 318 (5th Cir.1980), the trial court's findings are superfluous.

State v. Estorga, 60 Wash.App. 298, 304 n. 3, 803 P.2d 813, review denied, 116 Wash.2d 1027, 812 P.2d 102 (1991). In concluding that the warrant affidavit was insufficient to establish probable cause the dissent cites facts which are not in the affidavit. Finding of fact 9. Material omissions in the affidavit in support of a search warrant do not invalidate the warrant if the affidavit as submitted establishes probable cause to search and the omission was not made either intentionally or with reckless disregard for the truth. State v. Cord, 103 Wash.2d 361, 368-69, 693 P.2d 81 (1985); State v. Garrison, 118 Wash.2d 870, 872, 827 P.2d 1388 (1992) (the Franks test for material misrepresentations applies to allegations of material omissions). Here, the court did not hold a Franks hearing and did not consider the alleged material omissions from the warrant affidavit. Thus, although we are aware of the dissent, in our analysis we consider only the affidavit on its face.

We consider whether the affidavit on its face contained sufficient facts for a finding of probable cause. Issuance of a search warrant is a matter of judicial discretion, and reviewing courts give great deference to the magistrate's determination of probable cause, reviewing that determination only for an abuse of that discretion. State v. Seagull, 95 Wash.2d 898, 907, 632 P.2d 44 (1981). We resolve doubts by according preference to the validity of the warrant. State v. Chasengnou, 43 Wash.App. 379, 387, 717 P.2d 288 (1986).

"An affidavit is sufficient to establish probable cause for a search if it contains facts from which an ordinary, prudent person would conclude that a crime had occurred and evidence of the crime could be found at the location to be searched." State v. Stone, 56 Wash.App. 153, 158, 782 P.2d 1093 (1989), review denied, 114 Wash.2d 1013, 790 P.2d 170 (1990). Even when there is probable cause to believe that a person has committed a crime, it does not automatically follow that there is probable cause to search his or her house for evidence of that crime. United States v. Freeman, 685 F.2d 942, 949, reh'g denied, 689 F.2d 190 (5th Cir.1982). "[F]acts must exist in the affidavit which establish a nexus between the house to be searched and the evidence sought.... [T]hat nexus may be established either through direct observation or through normal inferences as to where the articles sought would be located." Freeman, 685 F.2d at 949.

[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 where a criminal would likely hide contraband.

State v. Gross, 57 Wash.App. 549, 554, 789 P.2d 317, review denied, 115 Wash.2d 1014, 797 P.2d 513 (1990), quoting United States v. Dubrofsky, 581 F.2d 208, 213 (9th Cir.1978) (affidavit was sufficient to establish probable cause because it is likely that heroin importers have contraband and related paraphernalia where they live, even though no contraband or paraphernalia was directly connected to defendant's home).

Thus, a nexus is established between a suspect and a residence if the affidavit provides probable cause to believe the suspect is involved in drug dealing and the suspect is either living there or independent evidence exists that the suspect may be storing records, contraband, or other evidence of criminal activity at the residence. Freeman, 685 F.2d at 949-950, quoting United States v. Green, 634 F.2d 222, 226 (5th Cir.1981); Gross, 57 Wash.App. at 554, 789 P.2d 317 (citing with approval to Freeman ); United States v. Ayers, 924 F.2d 1468, 1479 (9th Cir.1991).

This case involves allegations that defendant O'Neil was engaged in on-going drug trafficking. Hagar and Bryan do not dispute that the affidavit established probable cause to believe:

(1) O'Neil was involved in multiple on-going marijuana grow operations;

(2) individuals involved in marijuana manufacture typically maintain documentation of their cultivation and sales activity;

(3) they attempt to shield the profits from their illegal activities by keeping fictitious business records, and by placing assets in the names of others; (4) they secret contraband, including the proceeds of drug sales and records of drug transactions in secure locations, premises under their dominion and control.

Nor do they dispute the affidavit provided sufficient probable cause to authorize the search of three of the four houses, two businesses, a vehicle and a storage unit.

The issue here is limited to whether the affidavit contained sufficient information to establish probable cause to search the Palatine address. Few places are more convenient for hiding contraband or evidence of criminal activity--and, therefore, more appropriate to search--than the suspect's home. The affidavit contained no evidence of any criminal activity at the Palatine address; authorization for search of the 7222 Palatine Avenue North residence was based upon an inference that defendant O'Neil resided there, and thus, evidence of criminal activity would be found there. The affidavit indicated that various documents listed O'Neil's address as 7222 Palatine Avenue North:

(1) Tax records show O'Neil owns the residence at 7222 Palatine Ave. N.

(2) O'Neil owns a vehicle registered with the 7222 Palatine Ave. N. address. O'Neil owned another vehicle which listed his business address.

(3) O'Neil's current Washington State driver's license shows his address to be 7222 Palatine Ave. N.

(4) Utility records for 10208 15th Avenue N.E. listed the owner as Thomas O'Neil, living at 7222 Palatine Avenue North.

(5) On February 26, 1993, while touring the Mountlake Terrace condominium, belonging to O'Neil's parents, the officer noted it was sparsely furnished. She observed mail, papers and checks addressed to O'Neil at his business address and his residence at 7222 Palatine Ave. N.

(6) While touring the condominium, the officer spoke with a real estate agent who told her that O'Neil was temporarily staying there while it was for sale, but his actual residence was elsewhere.

The court found that neither O'Neil nor any of his vehicles were ever observed at the Palatine address during the 2-month police investigation. The affidavit indicates a number of occasions in which police observed...