State v. Thein, 40334-6-1

• Court: Court of Appeals of Washington
• Citation: 957 P.2d 1261,91 Wn.App. 476
• Docket Number: No. 40334-6-1,40334-6-1
• Parties: STATE of Washington, Respondent, v. Stephen Anthony THEIN, Appellant.
• Decision Date: 22 June 1998

Page 476

91 Wn.App. 476 957 P.2d 1261 STATE of Washington, Respondent,
v.
Stephen Anthony THEIN, Appellant. No. 40334-6-1. Court of Appeals of Washington,
Division 1. June 22, 1998.

[957 P.2d 1262]

Page 479

Jeffrey Steinborn, Seattle, for Appellant.

Shannon Anderson; Deputy Prosecuting Attorney, Seattle, for Respondent.

AGID, Acting Chief Judge.

Stephen Thein appeals his convictions for possession of marijuana with intent to deliver and defrauding a public utility, arguing that the search warrant obtained by police to search his residence was overbroad and not supported by probable cause. The informants' statements established Thein's status as the landlord, drug supplier and sole occupant of the basement of a house in which police found his residence address and marijuana grow equipment when they served a search warrant on one of Thein's customers/drug sellers. This supplied sufficient probable cause to support the warrant to search Thein's residence. Even if we assume the warrant was overbroad because there was no evidence Thein sold other drugs, we can sever the arguably offending language authorizing a search for all "controlled substances." [957 P.2d 1263] In any event, the warrant authorized a search for money, weapons and records of sales, all of which would likely be found in the same places as other drugs. Because there was a sufficient nexus between Thein's activities and his residence and the warrant did not authorize a general search, it was valid and we affirm the conviction.

FACTS

On April 14, 1995, King County Narcotics Task Force officers

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served a search warrant on Thein's residence at 3921 S.W. Austin in Seattle where they discovered a large marijuana grow operation and a power diversion. Prior to trial, Thein moved to suppress the results of that search on the ground that the warrant was not supported by probable cause. The affidavit on which the search warrant was based recited that on April 13, 1995, police had served a search warrant on a residence at 316 S. Brandon and placed the resident, Laurence McKone, under arrest after finding approximately half a pound of marijuana in a freezer and materials commonly used to package it nearby. ¹ In a storage area in the basement of 316 S. Brandon, adjacent to an area that served as a wood workshop, police also found materials commonly associated with cultivating marijuana, including grow lights, plant trays, fertilizer, potting soil, and a humidifier. Next to the materials they found a packing slip for a "Clean-air" system indicating that it had been shipped to "Stephen Thein, 316 So. Brandon" six months earlier. In the woodworking portion of the shop, police found a receipt on a work bench from the Tacoma Screw Company with the address "3921 S.W. Austin" written on it. Police also found several boxes of nails under the work bench; Steve Thein's name and the S.W. Austin address was on one of the boxes. Upstairs in the residence, police found money orders from McKone to Thein with the notation "rent."

The affidavit went on to recite that, after finding these items, police contacted the Department of Licensing and learned that "Steve Thein" was the registered owner of a 1994 Toyota pickup truck. Police had found two boxes of oil filters in the basement marked "Toyota" along with a used oil filter in a plastic bag that contained potting soil. Police read McKone his rights but he declined to give them any information about Thein. While police were there, Michael Terebesi, a neighbor, came by and told them that McKone's

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source for marijuana was a white male approximately 40 years old who drove a black Lexus and periodically visited 316 S. Brandon. A little later, Sheila Hegge arrived to buy marijuana and told police that McKone's supplier was his landlord who was a man named "Steve." ² She told police McKone met Steve through an old boyfriend of hers eleven years earlier and that only Steve used and controlled the basement area of the house. She also stated that she had seen Steve drive a black Lexus to 316 S. Brandon. The affidavit recited that Don Mitchell, the citizen informant who gave police the tip on which the search warrant for 316 S. Brandon was based, also told police that the landlord drove a black Lexus-type vehicle. When police checked with the Department of Licensing a second time, they learned that Thein was the registered owner of a black 1994 Acura Legend and that his address was listed as 3921 S.W. Austin. In his affidavit supporting the S. Brandon search, Mitchell also said McKone told him he would be getting another supply of marijuana soon.

In addition to facts specific to Thein, the affidavit also included a number of general observations about the habits of marijuana growers based on the affiant police officer's training and experience.

For example, the affidavit stated that

* It is common for marijuana growers to secret contraband, proceeds of sales and records of transactions in secure locations[957 P.2d 1264] within their residences for ready access, and to conceal them from police.

* Persons involved in large scale marijuana growing operations often conceal within their residence, caches of drugs, large amounts of cash, financial instruments ...

Based on the facts in the affidavit, the officer stated he believed Thein was currently involved in the manufacture

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and distribution of marijuana and that evidence of that activity was located at his residence at 3921 S.W. Austin. The search warrant authorized police to search both Thein and his residence at 3921 S.W. Austin and to seize the following:

Controlled substances, including but not limited to marijuana including all containers, implements, fruits of the crime, fixtures used or kept for illegal manufacture, sale, barter, exchange, furnishing or otherwise disposing of said controlled substances; evidence of ownership to such property or rights of ownership or control of said property; narcotics records including any notebooks or written instruments associated with the manufacture, sale, exchange and furnishing of narcotic substances; any firearms found in violation of RCW 9.41.098(c).

The trial court denied Thein's motion to suppress. At the conclusion of a trial on stipulated facts, the court found Thein guilty of one count of possession of a controlled substance with intent to deliver and one count of defrauding a public utility.

DISCUSSION

1. Overbreadth of Warrant

Thein argues that the search warrant was constitutionally overbroad because by authorizing officers to search for drugs other than marijuana, it allowed a general search that exceeded any probable cause established in the affidavit supporting the search warrant. A search warrant must describe the items to be seized with particularity. ³ "The purposes of the search warrant particularity requirement are the prevention of general searches, prevention of the seizure of objects on the mistaken assumption that they fall within the issuing magistrate's authorization, and the prevention of the issuance of warrants on loose, vague, or

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doubtful bases of fact." ⁴ The particularity requirement is...