State v. Thein

• Decision Date: 10 June 1999
• Docket Number: No. 67085-4,67085-4
• Citation: 138 Wn.2d 133,977 P.2d 582
• Parties: STATE of Washington, Respondent, v. Steve A. THEIN, Petitioner.
• Court: Washington Supreme Court

Page 582

138 Wn.2d 133

977 P.2d 582

STATE of Washington, Respondent, v. Steve A. THEIN, Petitioner.

No. 67085-4.

Supreme Court of Washington En Banc.

Argued March 9, 1999.

Decided June 10, 1999.

Steinborn & Associates, Jeffrey Steinborn, Seattle, for Petitioner.

Norm Maleng, King County Prosecutor, Brian M. McDonald, Deputy, Seattle, for Respondent.

JOHNSON, J.

The question in this appeal is whether probable cause existed to issue a warrant to search defendant's home. The affidavits in support of probable cause contained generalizations regarding the common habits of drug dealers. We are asked to decide whether these generalizations, standing alone, established probable cause, or whether the stated facts were otherwise sufficient to issue the warrant. The Court of Appeals found the search valid. We reverse.

FACTS

Stephen Thein was arrested and convicted for possession of marijuana with intent to deliver and of defrauding a public utility after a search of his home at Southwest Austin Street in Seattle (Austin Street) uncovered a marijuana grow operation. Police believed Thein was a drug dealer based on evidence found in an earlier search at a different location.

Two affidavits of probable cause were offered in support of the warrant application. ¹ The relevant facts contained in the affidavits are as follows. On April 13, 1995, the South King County Narcotics Task Force executed a search warrant on a residence located at South Brandon Street in Seattle (South Brandon). Through an informant, the police had conducted two controlled marijuana buys at the South Brandon residence. The suspect at the South Brandon address was Laurence McKone.

The South Brandon house consisted of an upper and a lower level. The upstairs served as a residence and the downstairs as a woodwork shop and storage area. McKone was arrested in the upper level residence area. There, police found over one-half pound of marijuana and associated packaging materials belonging to McKone. They also found several copies of money orders from McKone made out to Thein with the notation, "rent."

The downstairs portion of the South Brandon residence was divided into two rooms. The front room was the woodwork shop and the backroom was the storage area. In the back storage area, police found materials they believed to be commonly associated with the cultivation of marijuana. These included fluorescent lights, halide bulbs, heat shields, bottles of carbon dioxide, electric timers, plant trays, a watering can, a fan, potting soil, a humidifier, and charcoal. Adjacent to these materials was a "Clean-air" system with a packing slip addressed to Stephen Thein at the South Brandon address (the location currently being searched).

In the front woodwork shop area, police found a box of nails addressed to Thein at his Austin Street address. Also in the woodwork shop area were two boxes of oil filters marked "90915-20001" and "Toyota." A quantity of waste oil and an unopened bottle of motor oil stood nearby. Upon later checking with an auto supply retailer, detectives learned the oil filters fit 1994 Toyota pickup trucks.

Next to the door used to enter the basement area was a trash can. (It is unclear from the affidavit whether the can was located inside or outside this door.) Inside the can was a plastic bag and, inside that bag, two yellow plastic bags. One of the yellow bags contained approximately five pounds of marijuana "shake," material typically pruned from cultivated plants. The other bag contained a round chunk of potting soil, apparently pulled from a potting container, and a used oil filter matching those found in the woodwork shop.

While the search at South Brandon was in process, a neighbor came to the residence to pick up auto parts from McKone. The neighbor told detectives the source of McKone's marijuana was a white male, approximately 40-years-old, who drove a black Lexus and periodically visited the South Incorporated by reference to the affidavit outlining the above facts was the affidavit supporting the South Brandon search. This earlier affidavit stated the power records of the South Brandon residence were in the name of William Bell and the landlord was listed as Mrs. Ray Bade.

                Brandon address.  Later, a woman arrived to buy marijuana from McKone.  She told detectives McKone's landlord was a man named "Steve."   She also stated "Steve" and a relative of "Steve's" named "Dave" supplied McKone's marijuana.  The woman told detectives McKone first met "Steve" about 11 years ago.  She said McKone's marijuana business had recently picked up.  She said the basement area of the South Brandon residence was controlled exclusively by "Steve" and he drove a black Lexus.  At the debriefing following the search at South Brandon the police informant told officers McKone got his marijuana from his (McKone's) landlord and the landlord drove a black Lexus-type vehicle
                

In this earlier affidavit the police informant also explained that McKone (who the informant only knew as "Larry") received his marijuana from his landlord. The informant said McKone originally leased the South Brandon residence but had fallen behind on his payments and his "supplier" had taken over the payments and bought the South Brandon residence. The informant also told police McKone's supplier recently purchased a house on the northeast corner of South Brandon and 3 rd Avenue South, and the "supplier" drove a "new black Lexus." Clerk's Papers at 72.

Upon checking with the state Department of Licensing, detectives learned Thein's full name was Stephen Anthony Thein. His address was listed as the Southwest Austin Street address in Seattle. He was the registered owner of a 1994 Toyota pickup truck, as well as a black 1994 Acura Legend. According to Department of Licensing records, Thein did not own a Lexus.

Both affidavits contained generalized statements of belief regarding the common habits of drug dealers. The primary affidavit reads:

Based on my experience and training, as well as the corporate knowledge and experience of other fellow law enforcement officers, I am aware that it is generally a common practice for drug traffickers to store at least a portion of their drug inventory and drug related paraphernalia in their common residences. It is generally a common practice for drug traffickers to maintain in their residences records relating to drug trafficking activities, including records maintained on personal computers. Because drug traffickers will in many instances "front" (i.e., sell on consignment) controlled substances in full or partial quantities to their distributors or from their suppliers, such record keeping is necessary to keep track of amounts paid and owed. These records will also be maintained close at hand so as to readily ascertain current balances. Telephone/address listings of clients must be maintained and immediately available in order to efficiently conduct their drug trafficking business. Moreover, it is generally a common practice for traffickers to conceal at their residences large sums of money, either the proceeds of drug sales or to utilized [sic] to purchase controlled substances. In this vein, drug traffickers typically make use of currency, wire transfers, cashiers checks and money orders to pay for controlled substances. Evidence of such financial transactions and records related to incoming expenditures of money and wealth in connection with drug trafficking would also typically be maintained in residences.

I know from previous training and experiences that it is common practice for drug traffickers to maintain firearms, other weapons and ammunition in their residences for the purpose of protecting their drug inventory and drug proceeds[.] I am aware from my own experience and training that it is common practice for [sic] from law enforcement, but more commonly, from other drug traffickers who may attempt to "rip them off." Firearms and ammunition have been recovered in the majority of residence searches in the drug investigations in which I have been involved.

Clerk's Papers at 68.

Based on the foregoing facts, information, and belief, police concluded Stephen Thein A magistrate issued a warrant to search the Austin Street residence. Before trial, Thein moved to suppress evidence found as a result of that search. He argued the facts and information discovered during the search of the South Brandon residence provided an insufficient nexus between the evidence to be seized (manufacture and distribution of marijuana) and the place to be searched (his Austin Street residence). He argued police did not have probable cause to believe he was involved in a grow operation, but even if they did, there was no evidence connecting any illegal activity to his Austin Street residence. ² The trial court denied the motion to suppress and Thein was convicted on stipulated facts. He appealed only the suppression issue. The Court of Appeals affirmed. State v. Thein, 91 Wash.App. 476, 957 P.2d 1261 (1998).

was "currently involved in the manufacture and distribution of marijuana ... and that evidence of these crimes is located at his residence of ... SW Austin, Seattle WA." Clerk's Papers at 66.

We granted review.

ANALYSIS

A search warrant may issue only upon a determination of probable cause. State v. Cole, 128 Wash.2d 262, 286, 906 P.2d 925 (1995). An application for a warrant must state the underlying facts and circumstances on which it is based in order to facilitate a detached and independent evaluation of the evidence by the issuing magistrate. State v. Smith, 93 Wash.2d 329, 352, 610 P.2d 869 (1980); State v. Helmka, 86 Wash.2d 91, 92-93, 542 P.2d 115 (1975). Probable cause exists if the affidavit in support of the warrant sets forth facts and circumstances sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime can be found at the place to be searched. Co...