State v. Smith, 46365-2-II

Decision Date03 May 2016
Docket NumberNo. 46365-2-II,46365-2-II
PartiesSTATE OF WASHINGTON, Respondent, v. RANDALL C. SMITH, Appellant.
CourtCourt of Appeals of Washington

SUTTON, J.Randall Smith appeals his convictions for 23 charges relating to an identity theft operation and the sentence for his second degree identity theft convictions. We hold that (1) the trial court did not err in denying Smith's motion to suppress physical evidence that police officers seized from the hotel rooms, (2) the trial court did not err in admitting Smith's post-arrest statements even though he said the word "attorney" when officers advised him of his Miranda rights, (3) the jury instructions on leading organized crime and accomplice liability were not erroneous, (4) Smith was not denied the right to a unanimous verdict on his leading organized crime conviction, and (5) Smith's assertions in his statement of additional grounds (SAG) have no merit. However, we hold that Smith's sentences for the second degree identity theft convictions exceed the statutory maximum. Thus, we affirm Smith's convictions but remand for the sentencing court to resentence Smith not to exceed the statutory maximum under RCW 9A.20.021 on the second degree identity theft convictions.


Smith sold merchandise that he had purchased fraudulently using stolen identities and he hired several women to work for him as "associates." The women characterized Smith as their "boss," stating that he gave orders for the women to carry out. The women opened bank accounts, deposited fraudulent checks that Smith created into those accounts, and then withdrew as much money from the accounts as the bank would allow. They also cashed fraudulent payroll checks at "check cashing places" and gave the money to Smith. 6 Verbatim Report of Proceedings (VRP) at 492. Smith directed them to purchase specific items at certain stores with fraudulent checks and credit cards so that he could sell these items to third parties. The women went shopping "every day" and also participated in "scraping" credit cards of their numbers and demagnetizing them. 5 VRP at 398; 7 VRP at 600.

Bail agents David Chadwick and Joseph Kaufman had a contract to arrest Smith after he failed to appear in court in King County. The bail agents received information that Smith was staying at a hotel in Tacoma, confirmed the existence of the arrest warrant, and alerted the Tacoma Police Department as required under RCW 18.185.300(1)(a)-(b) that they were going to go to the hotel to arrest Smith. At the hotel, the staff confirmed that Smith was staying in the hotel, that he obtained hotel rooms with a stolen credit card, and that he registered for the rooms under a different name. The agents entered one of Smith's rooms with a key provided by the hotel and apprehended him inside the room.

Inside the room, the bail agents observed in plain view a large amount of credit cards, computers, and shopping bags. They did not search the items and called the Tacoma Police Department to investigate. Officer Jared Tiffany and two other officers responded. Upon arrival at the hotel, Officer Tiffany spoke with Kaufman in the parking lot and Kaufman told him that they had received information earlier in the day that Smith was staying at the hotel, that Smith had an outstanding felony warrant for his arrest,1 that Smith checked into the hotel with a fake driver's license, and that Kaufman had observed certain items in the room. When Officer Tiffany entered the room he saw "bins, computers, shopping bags, stacks of checks, mail, office supplies, and a box . . . that contained numerous credit cards." Clerk's Papers (CP) at 329. Officer Tiffany did not personally confirm the existence of the arrest warrant and he could not recall whether dispatch or someone else did.

When the bail agents entered the hotel room, a woman who worked with Smith was also present and she admitted that the merchandise in the room was stolen and that Smith would forge checks and have friends cash those checks. The officers removed Smith and the woman from the room and, after obtaining a search warrant, Officer Tiffany and the other officers searched the hotel room.

Officer Tiffany took custody of Smith and began reading him Miranda2 warnings. Before he could finish, Smith blurted out the word, "Attorney." CP at 323. Officer Tiffany completed reading the Miranda warnings and asked Smith whether he wished to answer questions voluntarily; Smith answered, "Some questions." CP at 323. Smith refused to give Officer Tiffany his name, but answered subsequent questions regarding the hotel rooms and stated that the woman was his girlfriend. Smith stated that he and the woman had checked into the hotel earlier in the week, rented five rooms, and allowed several of his friends to stay in the other rooms. Smith later initiated a conversation with another officer and made statements about two vehicles that were being impounded pending a search warrant, insisting that they were his.

Officers obtained a search warrant for the hotel rooms and recovered numerous credit cards both new and altered, credit card numbers, a credit card embosser, voided, blank, and Versa checks,3 financial documents, social security numbers, birth and death certificates, blank W-2 forms, altered treasury bonds and applications for various payment instruments. The officers also recovered a firearm in one of the hotel rooms.

The State charged Smith with 18 counts of second degree identity theft, and one count each of first degree identity theft, unlawful possession of a firearm, unlawful possession of a personal identification device, unlawful possession of payment instruments, and leading organized crime.4 The trial court denied Smith's motions to suppress the evidence found in the hotel rooms and his post-arrest statements. The trial court dismissed the State's charge of first degree identity theft after the State rested its case-in-chief. The jury found Smith guilty on all other charges except for the unlawful possession of a firearm charge. Smith appeals his convictions and his sentences for second degree identity theft.


We review a trial court's rulings on a motion to suppress to determine whether substantial evidence supports the trial court's findings of fact and whether the findings of fact support the trial court's conclusions of law, which we review de novo. State v. Russell, 180 Wn.2d 860, 866-67, 330 P.3d 151 (2014). Substantial evidence is evidence that is sufficient to persuade a fair-minded person of the truth of the stated premise. Russell, 180 Wn.2d at 866-67. Unchallenged findings of fact are verities on appeal. State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014). We review a conclusion of law that is mislabeled a finding of fact as a conclusion of law. Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986).


Smith argues that the trial court erred in denying his motion to suppress because the officers failed to confirm the validity of the arrest warrant prior to entry into the hotel room, they lacked probable cause.5 We hold that the entry was lawful and thus, the officers' search warrant subsequently obtained based on their plain view observations was also lawful.

The United States and Washington Constitutions protect against unreasonable searches and seizures. U.S. CONST. amend. IV; WASH. CONST. art. I, § 7. In order to lawfully enter a dwelling to serve an arrest warrant, an officer must have probable cause to believe that the person to be arrested resides in the dwelling and is inside the dwelling at the time of entry. State v. Hatchie, 133 Wn. App. 100, 113-114, 135 P.3d 519 (2006).

Smith does not dispute that a valid warrant for his arrest actually existed. Instead, he argues that the police officers lacked probable cause to enter the hotel room based on the bail agents' representation that an arrest warrant existed for Smith because the bail agents were not reliable informants under the Aguliar/Spinelli6 test, and the officers did not confirm the validity of the arrest warrants. We disagree and hold that the bail agents were reliable citizen informants under Agular/Spinelli, that the police officers had probable cause to enter the hotel room, and that the evidence obtained within the hotel rooms was admissible.

Washington applies the Aguilar/Spinelli test to determine whether information provided by an informant establishes probable cause to issue a search warrant and requires that the informant have a basis of knowledge and be reliable. State v. Bauer, 98 Wn. App. 870, 874-75, 991 P.2d 668 (2000) (citing State v. Jackson, 102 Wn.2d 432, 436-37, 440, 688 P.2d 136 (1984)). Both prongs of the Aguilar/Spinelli test must be satisfied to establish probable cause. Bauer, 98 Wn. App. at 875 (citing State v. Smith, 110 Wn.2d 658, 664, 756 P.2d 722 (1988)). If an informant's tip fails under either prong, there is a lack of probable cause unless independent police investigation corroborates the tip to such an extent that it supports the missing elements of the test. Bauer, 98 Wn. App. at 875 (citing Jackson, 102 Wn.2d at 438).

The knowledge prong is satisfied if the informant has personal knowledge of the asserted facts. Bauer, 98 Wn. App. at 875 (citing Jackson, 102 Wn.2d at 437-38). To establish the reliability of a citizen informant, the police must "'interview the informant and ascertain such background facts as would support a reasonable inference that he is prudent or credible, and without motive to falsify.'" Bauer, 98 Wn. App. at 876 (internal quotation marks omitted) (quoting State v. Chatmon, 9 Wn. App. 741, 748, 515 P.2d 530 (1973)).

Kaufman had personal knowledge that there was a valid arrest warrant and that Smith was in the hotel room. Additionally, Officer Tiffany spoke with Kaufman in the parking lot and obtained information that Kaufman had a contract to arrest Smith after his...

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