State v. Plumley
| Decision Date | 03 July 2003 |
| Docket Number | No. 20634-3-III.,20634-3-III. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. DONALD RAY PLUMLEY, Appellant. |
Appeal from Superior Court of Spokane County, Docket No: 00-1-02801-7, Judgment or order under review, Date filed: 10/22/2001.
Donald G. Miller, Attorney at Law, Spokane, WA, Counsel for Appellant(s).
Kevin Michael Korsmo, SPOKANE COUNTY PROSECUTORS OFFICE, Spokane, WA, Counsel for Respondent(s).
Andrew J. III Metts, Spokane County Pros Offc, Spokane, WA, Counsel for Respondent(s).
Affidavits in support of search warrants require reasonable specificity. State v. Thein, 138 Wn.2d 133, 149, 977 P.2d 582 (1999); State v. Stephens, 37 Wn. App. 76, 79, 678 P.2d 832 (1984); State v Higby, 26 Wn. App. 457, 462, 613 P.2d 1192 (1980). Here, the affidavit included general unsupported references to drug activity and arrests on the part of the defendant and those visiting his residence. The affidavit also included reports by a garbage collector of methamphetamine-related materials in a garbage can. But nothing ties the contents of the can specifically to this defendant or his residence. We conclude then that the affidavit is insufficient to support probable cause and reverse the conviction.
Darren Lehman collects garbage for Spokane Waste Management. While working his route he found 40 to 50 packages of 'Equate' nasal decongestant pills, several bottles of drain opener containing lye, five bottles of gas line antifreeze, several matchbooks without striker plates but with the matches still attached, and 8 to 10 plastic soda bottles that contained an off-white substance that smelled very bad. He reported that the bottles appeared to be partially melted, and the bottoms of some bottles were melted off. He suspected these items were related to methamphetamine production. And so he called the Spokane County Sheriff's Office. Mr. Lehman told a deputy that he was familiar with items associated with methamphetamine labs from his job training and news reports. Mr. Lehman identified 'Dwayne {sic} Plumley' as the account holder for the address where he picked up the garbage can holding the items. Clerk's Papers (CP) at 63.
Five days later, a Spokane County deputy sheriff presented his affidavit for a search warrant. In the affidavit, the deputy recounted the information provided by Mr. Lehman. The deputy also stated:
Your affiant is very familiar with the address at 16024 E. 4th Spokane county WA. That the actual occupants of the address are Donald R Plumley w/m DOB. 11-02-62 and Sharla J Plumley w/f DOB. 12-23-65; that both these individuals have extensive local drug histories to include possession, sales and manufacturing the controlled substance methamphetamine; that over the past several months numerous people have been contacted by law enforcement going to and coming from the Plumleys{'} residence at 16025 E. 4th; that these people also have long local drug histories as well; that your affiant has received numerous drug arrest reports as well as field interview reports referencing the Plumleys{'} drug activity and the 4th address.
CP at 63-64. A search warrant issued the same day.
Police executed the warrant a week later. They found ingredients for methamphetamine manufacture and implements associated with the processing of those ingredients. The State charged Mr. Plumley with manufacture of a controlled substance within 1,000 feet of a school bus stop. Mr. Plumley moved to suppress the drug evidence. He argued in part that the deputy had falsely alleged in his search warrant affidavit that the Plumleys had criminal histories for possession, sale, and manufacture of methamphetamine.
The court ruled that Mr. Plumley failed to show that the deputy's use of the term 'local drug histories' to describe the Plumleys' activities was made with reckless disregard of the truth. The court also found that there was a sufficient nexus between the items found in the trash and Mr. Plumley's address.
The court also ruled that the information used to obtain the search warrant was not stale just because five days passed between the time of the informant's tip and issuance of the warrant. The court held that the information from the garbage collector together with the officer's knowledge of the Plumleys' drug involvement provided a sufficient basis for the magistrate to conclude that there was ongoing drug activity at the place to be searched.
A jury found Mr. Plumley guilty.
The ultimate determination of whether the facts set forth in the search warrant add up to probable cause is a legal conclusion subject to de novo review. In re Det. of Petersen, 145 Wn.2d 789, 799-800, 42 P.3d 952 (2002). The court's legal conclusions supporting its decision to suppress evidence are also reviewed de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).
The fourth amendment of the United States Constitution and article I, section 7 of the Washington Constitution require that a search warrant issue upon a probable cause determination based on 'facts and circumstances sufficient to establish a reasonable inference' that criminal activity is occurring or that contraband can be found at a specific location. Thein, 138 Wn.2d at 140. The probable cause requirement is met when the search warrant affidavit provides sufficient facts for a reasonable person to conclude there is a probability the defendant is involved in criminal activity. State v. Young, 123 Wn.2d 173, 195, 867 P.2d 593 (1994).
The facts contained in the search warrant affidavit must show more than suspicion or bare personal belief that evidence of the crime will be found on the premises to be searched. State v. Seagull, 95 Wn.2d 898, 907, 632 P.2d 44 (1981). Likewise, the 'underlying facts must be listed in the affidavit and not just the conclusions.' Stephens, 37 Wn. App. at 79. And an application for a warrant must be sufficiently comprehensive in its statement of underlying facts and circumstances to facilitate a detached and independent evaluation of the evidence by the issuing magistrate. Thein, 138 Wn.2d at 140; State v. Spencer, 9 Wn. App. 95, 96-97, 510 P.2d 833 (1973). To be sufficient, the search warrant affidavit must 'recite specific data as to times, places and magnitude of previous criminal activity.' Higby, 26 Wn. App. at 463 (emphasis added).
And, of course, a search warrant must be sufficient when issued. The discovery of contraband does not rehabilitate a defective warrant. State v. Jackson, 102 Wn.2d 432, 445, 688 P.2d 136 (1984). We examine only the information available to the issuing judge when determining whether there was probable cause for the warrant. State v. Murray, 110 Wn.2d 706, 709-10, 757 P.2d 487 (1988).
Here, the affidavit included generalized statements about (1) the Plumleys' 'extensive local drug histories' of possession, sale and manufacture of methamphetamine; (2) law enforcement contact with persons with similar 'long local drug histories' who visited the Plumleys' residence 'over the past several months'; and (3) information contained in 'numerous drug arrest reports as well as field interview reports referencing the Plumleys{'} drug activity and the 4th address' received by the officer. CP at 63-64. Mr. Plumley challenges each of those conclusions here on appeal. Defendant's 'extensive local drug history.' Prior arrests and convictions that have probative value to the specific probable cause inquiry may be considered. State v. Sterling, 43 Wn. App. 846, 851, 719 P.2d 1357 (1986). But the bare statement of a prior record of the same type of criminal conduct is insufficient to establish probable cause without at least some additional evidence. State v. Hobart, 94 Wn.2d 437, 446, 617 P.2d 429 (1980). A general assertion of a criminal reputation is insufficient to establish probable cause. Spinelli v. United States, 393 U.S. 410, 416, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). And reduced to its essence, that is all we have here.
The affidavit here does not recite any specific data concerning the Plumleys' 'extensive local drug histories' regarding methamphetamine. There are no details to determine whether the histories are, in fact, 'extensive.' And the term 'extensive local drug histories' standing alone is not helpful. On its face, the term is subjective. There is no reference to arrests or convictions. This is a conclusion without a factual basis.
Visitors with drug histories. The affidavit references law enforcement 'contact{}' with 'numerous' persons who had similar 'long local drug histories' who visited the Plumleys' residence 'over the past several months.' CP at 63-64. Again, there is no explanation as to what 'contact' means, i.e., Terry1 stop, conversation, arrest. Nor are these 'numerous' people identified or described in any fashion whatsoever except that, like the Plumleys, there is a vague reference to drug history....
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