State v. Thornton
| Decision Date | 20 April 2020 |
| Docket Number | No. 81036-7-I,81036-7-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. STEVEN PAUL THORNTON, Appellant. |
UNPUBLISHED OPINION
LEACH, J. — Steven Thornton appeals his convictions for possession of stolen firearms, unlawful possession of firearms, and unlawful possession of a stolen motor vehicle. We affirm his convictions but remand to strike the filing fee and DNA collection fee.
BACKGROUND
Steven Thornton asked a friend, Steven Sands, to rent a storage unit for Thornton's use. Thornton accessed the unit 40 or 50 times between May 14, 2016, and July 7, 2016. Thornton was the only person to store belongings in the unit.
Detective Eric Barry of the Puyallup Police Department received information from a confidential informant that Thornton had bragged about storing stolen dirt bikes and guns in a particular storage unit. Thornton's criminal history made it illegal for him to possess guns.
On July 7, 2016, Stor-Eze storage facility's manager informed Barry that Thornton was there. Barry and his partner, Detective Greg Massey, arrived and conducted surveillance on Thornton's unit for half an hour to 45 minutes. Barry noticed Thornton working on motorcycles and going in and out of the storage unit.
Officers then arrested Thornton based on an outstanding warrant. Shortly after Massey advised Thornton of his constitutional rights, Barry questioned him. Thornton stated the blue dirt bike belonged to him and that he was towing a second dirt bike, which the officers later learned was stolen, on the trailer attached to his pick-up truck for a friend. He denied knowing the dirt bike was stolen. He also stated all of the items in the storage unit belonged to his cousin Calvin Larson. He stated there were no firearms in the pick-up truck or the storage unit, but that firearms had been in the storage unit in the past. He said he had been in the unit numerous times and had stored his own items in the unit. Officers then took Thornton to the Puyallup jail.
Based on the information from the informant and Barry's own observations, Barry obtained a search warrant for the pick-up truck, trailer, and storage unit. While Barry left the scene to obtain the search warrant, other officers remained on-scene to keep the premises secure. During Barry's return to the scene, the other officers noticed two gun safes in the storage unit and reported this to Barry. He then went to the Puyallup jail to obtain the gun safe combinations from Thornton. Thornton first denied knowing the combinations but then called someone to get them. During the "call," Barry did not hear a voice on the other end of the line like he is usually able to hear when he has allowed suspects to use his phone in the past. After Thornton said, "What's the combo to the safe," he handed the phone right back to Barry and told him the combination. The safes did not open with thecombination that Thornton provided. Thornton then told Barry to "type it in and it should beep twice, and then you can open it." Officers eventually opened one safe with a key found on a key ring in the ignition of the pick-up truck. They forced the other safe open with a pry bar.
Officers found a holstered .40 caliber pistol, with the grip protruding, and ammunition in the pick-up truck underneath the seat. They also found 26 other firearms inside the storage unit some of which were locked inside the two gun safes. Seven of the firearms were stolen.
The State charged Thornton with nine counts possession of a stolen firearm, twenty-four counts of unlawful possession of a firearm, and one count of unlawful possession of a stolen vehicle.
Before trial, Thornton asked the court to suppress evidence seized claiming insufficient probable cause supported the search warrant. The trial court denied the request finding that any Aguilar-Spinelli defects in the affidavit were cured by the officers' own observations therefore the warrant was supported by probable cause.
The jury found Thornton guilty as charged. The trial court sentenced Thornton to 212 months in custody, and imposed a $100 DNA collection fee and a $200 criminal filing fee. Thornton appeals.
ANALYSIS
Thornton first claims the trial court should have suppressed all evidence seized pursuant to a search warrant because no probable cause supported the warrant's authorization to search the storage unit.
We review a trial court's probable cause decision as a mixed question of law and fact.1 We first review the findings of fact related to a suppression request under the substantial evidence standard.2 Because Thornton challenges none of the trial court's findings of fact, we accept them as true on appeal.3 We then decide if the facts support the legal conclusion - the existence of probable cause.4 "We review conclusions of law pertaining to suppression of evidence de novo."5
Probable cause exists if the evidence 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.6 Accordingly, "probable cause requires a nexus between criminal activity and the item to be seized, and also a nexus between the item to be seized and the place to be searched."7
Aguilar-Spinelli Requirements
Thornton claims that the State did not prove the necessary Aguilar-Spinelli requirements because the informant's information was not established as reliable, and without the informant's information, the State failed to establish a nexus between the items to be seized (firearms and stolen property) and the storage unit.
We apply the test announced in Aguilar v. Texas8 and Spinelli v. United States9 to determine if an informant's tip can establish probable cause to arrest.10 This test requires the State must establish (1) the basis of the informant's information and (2) the informant's credibility or the reliability of the informant's information.11 Courts label these two prongs the knowledge prong and the veracity prong.12 Courts use the "veracity" prong to evaluate the informant's "track record" (i.e., has he provided accurate information to the police a number of times in the past?).13 Courts use the "basis of knowledge" prong to evaluate the reliability of the informant's asserted knowledge.14
Even if the informant's information fails both prongs, an independent police investigation corroborating the informant's tip can sufficiently cure a deficiency.The independent police investigations should point to suspicious activity, "'probative indications of criminal activity along the lines suggested by the informant.' "15
Thornton claims the State failed to satisfy the Aguilar-Spinelli test because the officer's affidavit "did not contain sufficient information about the informant to satisfy either the knowledge or reliability prong."
An informant told officers that Thornton rented a storage unit in another person's name. The informant directly observed numerous bikes, motorcycles, and tools that Thornton told the informant were stolen, and observed firearms that Thornton told the informant were stolen during burglaries.
After the storage facility manager told Barry that Thornton arrived at the storage facility on a motorcycle, accompanied by a pick-up truck towing a trailer containing several dirt bikes, motorcycles, and a go-cart, Barry and Massey went to the storage facility. They saw Thornton going in and out of the storage unit and working on the dirt bikes and motorcycles. Because Thornton had an outstanding warrant for his arrest, officers arrested him. Before Barry spoke with Thornton after his arrest, Barry noticed a pistol in the pick-up visible from the outside. He also saw dirt bikes parked inside the storage unit.
After Barry read Thornton his Miranda rights, Thornton told him that he had "seen" guns in the storage unit before. He also admitted that he had stored things in the unit.
Based on the fact that Thornton is a convicted felon, admitted there was at least one more gun inside the storage unit, in addition to the gun Barry saw in the truck, and because he was "on top of a stolen motorcycle," officers requested the search warrant. The officers here made an independent investigation that corroborated the information Barry received from the informant. This investigation cured any deficiency in either prong of the Aguilar-Spinelli test.
Nexus
Thornton next claims that without the informant's statements, the search warrant did not establish the necessary nexus between the items seized and the storage unit. Because the officer's independent investigation corroborated the informant's information, which created the basis for the search warrant, Thornton's nexus claim fails.
Scope of Warrant
For the first time on appeal, Thornton claims the officers were not authorized to search the gun safes because the search warrant was silent as to the safes.
Generally, an appellate court will not review issues raised for the first time on appeal. A recognized exception to this rule allows review if a party shows a "manifest error affecting a constitutional right."16 This exception to the general rule exists because constitutional errors "often result in injustice to the accused andmay adversely affect public perceptions of the fairness and integrity of judicial proceedings."17
To establish manifest constitutional error, a criminal defendant must identify a constitutional error and make a showing that the error likely prejudiced his rights at trial.18 "It is this showing of actual prejudice that makes the error 'manifest,' allowing appellate review."19 "If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest."20
Because this court has already held that a premises search warrant to search for firearms authorizes entry into a locked safe,21 Thornton fails to establish that his...
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