State v. Potts
| Decision Date | 03 January 2019 |
| Docket Number | No. 49926-6-II,49926-6-II |
| Parties | STATE OF WASHINGTON, Respondent, v. DANNY RAY POTTS, Appellant. |
| Court | Washington Court of Appeals |
MELNICK, J. — Danny Ray Potts appeals his convictions for possession of methamphetamine and heroin with intent to deliver and possession of MDMA (ecstasy) and benzodiazepine. He contends that the search warrant in this case was stale and not supported by probable cause and that the police executing the warrant violated the knock and announce rule. He also contends that he received ineffective assistance of counsel, evidence was insufficient that he intended to deliver methamphetamine or heroin, and the trial court erred by admitting an untested substance into evidence.1 We reject all of Potts's arguments and affirm his convictions.
On November 12, 2015, Longview police executed a search warrant for drugs at Potts's residence. Detective Seth Libbey knocked on the door and then shouted three times, "Longview police, search warrant." 1 Report of Proceedings (RP) at 45. He heard movement inside the residence, but did not get a response to his announcements. About fifteen seconds after the initial announcement, Sergeant Mark Langlois ordered Detective Brian Durbin to use a battering ram on the door. After three unsuccessful strikes with the ram, Potts opened the door and the police entered the residence. Potts, who stood several feet from the front door, never heard a knock or an announcement until after the third hit with the ram. Potts's nephew was also in the home at the time of the search. He estimated about a minute elapsed between when officers first shouted and when they entered the residence.
In their search of the residence, police found three bags in the toilet bowl. One bag contained methamphetamine and one contained heroin. The third bag contained two smaller bags, at least one of which contained methamphetamine.
Police also found a scale with white crystal residue, numerous small plastic bags, and $150 cash in Potts's bedroom. They found another $450 cash on Potts's person. Also in the bedroom, they found an ecstasy pill and a benzodiazepine pill.
Potts told the detectives that "anything found in here is mine." 3 RP at 428. A detective testified that Potts also said the police "must have deliveries on him to be there in the first place." 2 RP at 250. Potts denied admitting to drug trafficking or delivering.
Potts and his girlfriend both testified that all the drugs in the house were for their personal use and they preferred to buy infrequently in large quantities. Potts's girlfriend had tried to flush down the toilet an ounce of methamphetamine and two ounces of heroin when she heard the police coming.
A. CONFIDENTIAL INFORMANT
To obtain the search warrant, Libbey executed an affidavit on November 6, 2015. Libbey stated that he had been contacted by a confidential informant (CI) he identified as X and that X had informed him that he or she had seen methamphetamine at Potts's residence. Libbey stated that X had used drugs in the past, including heroin and methamphetamine, and was familiar with illicit drugs and their packaging as well as how drug transactions were arranged and completed. X had additionally performed one "controlled buy" previously in which X had purchased a controlled substance working for Longview police and had provided information for two previous successful search warrants.
In the seventy-two hours prior to Libbey executing the affidavit, X went to Potts's residence at the direction of Longview police. In the residence, X observed approximately one quarter of an ounce of methamphetamine in a plastic Ziploc bag under Potts's control. Potts indicated to X that the substance in the bag was methamphetamine. X also observed a pipe that contained methamphetamine residue.
Pursuant to the affidavit, a judge authorized a warrant to search Potts's residence and person for methamphetamine and various other drug paraphernalia. Six days later, officers executed the warrant.
The State charged Potts with two counts of possession of a controlled substance with intent to deliver, one for methamphetamine and one for heroin, and two counts of possession of a controlled substance, one for ecstasy and one for benzodiazepine.
Potts moved to suppress all contraband evidence seized during the search of his residence. He argued that the police violated the knock and announce rule and that the warrant was stale. The trial court concluded that the police properly knocked and announced their presence and that the warrant was not stale because it was executed within ten days of issuance.
In November 2016, the case proceeded to a jury trial. During the trial, John Dunn, a forensic scientist from the Washington State Patrol testified that he tested and weighed the contents of many of the bags police seized from Potts's residence.
The court admitted into evidence four exhibits consisting of the substances Dunn tested. Potts objected to the admission of the bag seized from Potts's toilet that contained the two smaller bags. He argued that Dunn had weighed and tested the contents of only one of the two smaller bags.
Dunn testified that both bags contained "a crystalline material" and that the bag he tested contained 13.6 grams of methamphetamine. 3 RP at 390. He did not testify about the contents or weight of the untested bag, but the court overruled the objection and admitted it into evidence as a part of the same exhibit. The trial court observed that the two bags were both found within one larger bag and were "of similar size" and "similar makeup." 3 RP at 376. The court ruled that itwould be up to the jury to decide if the substance in the untested bag was also methamphetamine. Potts's girlfriend testified that she had tried to flush down the toilet three bags containing methamphetamine and heroin. She confirmed she had three bags containing an ounce of methamphetamine and two ounces of heroin and that she had tried to flush them.
The jury found Potts guilty on all counts. Potts appeals.
Potts contends that the search warrant affidavit did not establish probable cause. He claims that the affidavit failed to establish both the basis of knowledge and the veracity of the CI. He also contends that he received ineffective assistance of counsel because his trial counsel did not raise this issue before the trial court. We disagree.
The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution guarantee the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d. 674 (1984); State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011).
We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on a claim of ineffective assistance of counsel, the defendant must show both (1) that defense counsel's representation was deficient, and (2) that the deficient representation prejudiced the defendant. Grier, 171 Wn.2d at 32-34; State v. Linville, 191 Wn.2d 513, 524, 423 P.3d 842 (2018). Representation is deficient if, after considering all the circumstances, the performance falls "'below an objective standard of reasonableness.'" Grier, 171 Wn.2d at 33 (quoting Strickland, 446 U.S. at 688). Prejudice exists if there is a reasonableprobability that, except for counsel's errors, the results of the proceedings would have differed. Grier, 171 Wn.2d at 34. If either prong is not satisfied, the defendant's claim fails. In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004).
A defendant faces a strong presumption that counsel's representation was effective. Grier, 171 Wn.2d at 33. Legitimate trial strategy or tactics cannot serve as the basis for a claim of ineffective assistance of counsel. State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009).
To address both elements of ineffective assistance, we look to the merits of the underlying claim that the CI lacked a basis of knowledge and veracity. If that claim would have failed before the trial court, Potts's trial counsel was not deficient for failing to raise it and he cannot show prejudice.
A search warrant should only be issued upon a determination of probable cause based on facts and circumstances sufficient to establish a reasonable inference that criminal activity is occurring or contraband exists at a certain location. State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002). We accord great deference to a magistrate's decision to grant a search warrant and view the supporting affidavit in the light of common sense. Vickers, 148 Wn.2d at 108. The trial court's assessment of probable cause is a legal conclusion that we review de novo. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008). However, we review a decision whether to issue a warrant for abuse of discretion. Vickers, 148 Wn.2d at 108.
To establish probable cause for issuance of a search warrant based on a tip from a CI, "the affidavit must demonstrate the informant's (1) basis of knowledge and (2) veracity." Vickers, 148 Wn.2d at 112; see State v. Jackson, 102 Wn.2d 432, 433, 688 P.2d 136 (1984) (citing Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S.410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969)). Potts argues that the affidavit in this case does not satisfy either of these requirements.
To establish a CI's basis of knowledge, the affidavit must provide "a showing that the information provided by the informant was based upon personal knowledge." Vickers, 148 Wn.2d at 112. The affidavit must contain "'sufficient facts to convince a reasonable person of the probability the defendant is engaged in criminal activity and that evidence of criminal activity can be found at...
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