State v. Taylor
| Decision Date | 11 April 1994 |
| Docket Number | No. 29243-9-I,29243-9-I |
| Citation | 74 Wn.App. 111,872 P.2d 53 |
| Parties | STATE of Washington, Respondent, v. Brian Lamont TAYLOR, Appellant. |
| Court | Washington Court of Appeals |
Lisa Dworkin, WA Appellate Defenders, Seattle, for appellant.
Francis Drew Zavatsky, Deputy Pros. Atty., Seattle, for respondent.
Brian Lamont Taylor was convicted and sentenced for six counts of violating the Uniform Controlled Substances Act, RCW 69.50.401(a). Taylor contends that the trial court should have granted his motion to suppress the contraband because the search warrant was invalid. He further contends that the evidence was insufficient to support his convictions on counts 4 and 5, and that the trial court's application of the deadly weapon enhancement at sentencing denied him his constitutional right to keep and bear arms. 1 We affirm.
In September 1990, Leonard Charles, 2 a Seattle Police Department informant, told Detective MacGregor Gordon that Taylor was dealing cocaine out of one of his two residences, located on 32nd Avenue South in Seattle (32nd Avenue). Charles also informed Gordon that Taylor used another house, this one on Ithaca Place, to process the cocaine into other forms such as crack. Charles gave information to Detective Gordon that formed the basis upon which a magistrate issued a search warrant for Taylor's two residences. Charles informed Gordon that he had seen a large quantity of cocaine on the kitchen table at 32nd Avenue which was packaged in small amounts. Also, within 48 hours prior to the time the search warrant was issued, Charles saw a large quantity of packaged crack cocaine on a grey couch downstairs. The affidavit for the search warrant stated that Charles had also seen powdered and crack cocaine at the Ithaca Place residence on three occasions, including once within the last 48 hours. Finally, the affidavit stated that, under police surveillance, Charles had performed a controlled buy on two occasions at the 32nd Avenue residence. 3
On November 20, 1990, the Seattle Police Department executed the search warrant at the Ithaca Place residence. When the police heard no response after knocking, they forced their way into the house. Taylor and his aunt were sitting on the living room couch. Inside, the police found baggies containing approximately 15 grams of powdered and rock cocaine, 1 gram of black tar heroin, a bottle containing 46 diazepam pills, baggies commonly used for packaging cocaine and heroin, a cocaine grinder, scales, a pager and $5,737 in cash. The officers also found an unloaded .45 caliber gun on the living room coffee table. The gun was in a leather bag, along with a clip containing seven rounds of ammunition. That same morning, other officers executed a search warrant on the 32nd Avenue residence. There, the police found approximately 32 grams of cocaine, scales, baggies, a sifter, razor blades, lactose (a cutting agent), a shoulder holster, a gun box, a loaded .45 caliber clip, 3 pagers and a cellular phone.
Taylor first challenges the sufficiency of the search warrant, arguing that the warrant affidavit both contained a material misrepresentation and omitted relevant facts necessary to make a determination of probable cause. He argues that the trial court should have suppressed the evidence seized during the search, or that he was entitled to a hearing under Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978), to determine whether his Fourth Amendment rights were violated.
A magistrate's determination that probable cause exists to issue a warrant is entitled to considerable deference by appellate courts. State v. Mak, 105 Wash.2d 692, 718 P.2d 407, cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986); State v. Jackson, 102 Wash.2d 432, 688 P.2d 136 (1984). When a search warrant's validity is challenged, doubts will be resolved in favor of the warrant. Mak, 105 Wash.2d at 714, 718 P.2d 407. In Jackson, the Supreme Court set forth the appropriate analysis for challenges to the validity of a search warrant. The court affirmed its adherence to the two-pronged Aguilar- Spinelli 4 test when reviewing claims made under Const. art. 1, § 7. Under that test, the warrant affidavit must demonstrate the informant's (1) "basis of knowledge" and (2) "veracity." Jackson, 102 Wash.2d at 437, 688 P.2d 136. The "basis of knowledge" prong is satisfied if the affidavit establishes the circumstances under which the informant obtained his information. The informant must state that he has personal knowledge of the facts asserted in the affidavit. The "veracity" prong is commonly satisfied by a showing that the informant has a proven "track record," i.e., that he has provided accurate information to the police in the past. Jackson, 102 Wash.2d at 436-38, 688 P.2d 136. If the warrant affidavit fails to satisfy either of the Aguilar- Spinelli prongs, the deficiency may be cured by corroborating the informant's tip with independent police investigatory work. Id. 102 Wash.2d at 438, 688 P.2d 136.
In a pretrial motion to suppress, Taylor argued that the warrant affidavit misrepresented the manner in which the controlled buys occurred. He further argued that, after the search warrant was executed, Charles gave a sworn statement that the controlled buys never occurred. 5 In addition, Taylor contended that the warrant omitted that Taylor was Charles' nephew, that Charles was a drug addict with pending criminal charges against him at the time he informed on Taylor, and that Charles had admitted possessing drugs in a prior case in which Taylor had been initially charged. Taylor argued that the magistrate could not independently evaluate Charles' reliability without knowing about these circumstances.
Although he does not apply the Franks analysis in his brief, Taylor continues to argue that material misrepresentations and omissions prevented the magistrate from accurately assessing Charles' reliability. These assertions require a Franks analysis. Under Franks, the court must first determine whether the misrepresentations and/or omissions were deliberate or reckless. If the answer to that question is yes, the next question is whether the facts allegedly misstated or omitted were material or relevant to the magistrate's determination of probable cause. State v. Garrison, 118 Wash.2d 870, 872-73, 827 P.2d 1388 (1992). In determining materiality, "[t]he challenged information must be necessary to the finding of probable cause." Garrison, 118 Wash.2d at 874, 827 P.2d 1388. It is not enough to say that the information tends to negate probable cause. Id. Finally, if the facts were relevant, the court must delete the false or misleading information or insert the omitted information. "If the affidavit with the matter deleted or inserted, as appropriate, remains sufficient to support a finding of probable cause, the suppression motion fails and no hearing is required." Garrison, 118 Wash.2d at 873, 827 P.2d 1388. On the other hand, if the altered affidavit fails to demonstrate probable cause, then the defendant is entitled to an evidentiary hearing. Id.
In this case, defense counsel offered to prove that, by the prosecutor's admission, one of the controlled buys alleged in the affidavit did not occur at 32nd Avenue. Rather, it was a "moving buy," in which Taylor "drove to the premises, entered the premises, came out, went back and allegedly delivered drugs". This misrepresentation apparently resulted from an innocent mistake on Detective Gordon's part. There was no showing that Gordon deliberately or in reckless disregard of the truth misrepresented the manner in which one of the buys took place. Accordingly, it is unnecessary to determine whether this misrepresentation was material. In any event, as the discussion below demonstrates, this error was not material.
Taylor's primary contention relates to Gordon's omission of facts which he contends are directly relevant to a determination of Charles' reliability. First, he states that Gordon should have told the magistrate that Charles was a drug addict and that he had criminal charges pending against him at the time he informed on Taylor. A similar argument was made and rejected in State v. Lane, 56 Wash.App. 286, 294-95, 786 P.2d 277 (1989). There, the defendant claimed that the detective's failure to inform the magistrate that the informant had a prior criminal record made the warrant deficient. The court disagreed, stating that it was common for a person who is in the position of arranging a controlled buy to have had prior contact with the criminal justice system. The court therefore concluded that omitting the informant's criminal record did not mislead the magistrate. The trial court in this case also believed that informants who arrange controlled buys and are witnesses to dealers' possession of large amounts of drugs are often involved in drugs themselves, and that magistrates are well aware of this fact. We agree, and hold that, even if Detective Gordon deliberately or recklessly omitted Charles' history, his criminal status was not material to a finding of probable cause.
Even if it were material, Charles' addiction and pending criminal charges, when added to the warrant affidavit do not vitiate the warrant. Garrison, 118 Wash.2d at 873-74, 827 P.2d 1388. Charles had a 2 1/2 year track record of providing accurate information which led to numerous arrests and drug-related convictions. He had been a reliable informant in spite of his drug addiction and criminal status. No evidence was presented that these circumstances affected Charles' veracity or reliability differently in this case than they had in other cases for which Charles had provided information.
Taylor also contends that Gordon should have informed the magistrate that Charles was Taylor's uncle, that he had admitted his own guilt in a drug...
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