Another WA Appellate Court Search Warrant Ruling


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Mainsail
February 20, 2007, 06:36 PM
Search warrants may be issued by a magistrate only upon a

showing of probable cause grounded in fact. State v. Maddox, 152 Wn.2d 499, 505, 98

P.3d 1199 (2004). Police obtained a telephonic warrant to search Matthew Young's house

for jars of baby food like the jars that had been thrown at officers earlier in the evening.

The searching officers found baby food, but also found methamphetamine and a sawed-off

shotgun. Mr. Young's motion to suppress this evidence was granted and all charges

against him were dismissed.

On appeal, the State contends the affidavit of probable cause established reasonable

grounds to believe that Mr. Young's house was the site of criminal activity. We find

No. 24332-0-III
State v. Young

insufficient facts to support a reasonable probability that Mr. Young was involved in

criminal conduct. Accordingly, we affirm.

Facts

Shortly after midnight in late March 2005, three officers conducting a traffic stop at

a Kennewick intersection were bombarded by three four-ounce jars of baby food. The

officers began a search of the neighborhood for suspects. Eventually, they noticed a

vehicle containing an infant car seat and baby bottles parked in front of a house. While the

officers were looking at the vehicle, Mr. Young came out of the house and asked what they

were doing. One officer said that they were looking for someone who had thrown "items"

at them, and then asked Mr. Young if he had any children. Clerk's Papers (CP) at 18. Mr.

Young answered that he had a child approximately four years old. A neighbor later told

the officers Mr. Young had an 18-month-old child.

The officers then contacted Mr. Young again, and he admitted he had jars of baby

food in his house. He then asked if he could go in his house to call his attorney and change

clothes. The officers gave Mr. Young permission to go inside. While he was in the house,

the officers saw lights go on in the basement. After about 10 minutes, Mr. Young came

back out wearing a pair of shorts and a shirt.

One of the officers called for a telephonic warrant to search Mr. Young's house "for

jars of baby food consistent in the nature of the jars that were thrown at officers when they

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No. 24332-0-III
State v. Young

were on the traffic stop." CP at 19. Along with the above information, the officer also

told the judge that a couple of weeks earlier, someone had thrown eggs at officers in the

same area, and a few months before that, someone threw rocks at state troopers in that

area. During the execution of the warrant, officers found jars of baby food coded with the

same date as one of the thrown jars. They also found methamphetamine and a sawed-off

shotgun.

Mr. Young was charged by information with third degree assault (RCW

9A.36.031(1)); unlawful possession of a controlled substance (RCW 69.50.4013(1)); and

possession of a machine gun, short-barreled shotgun, or rifle (RCW 9.41.190(1)). At the

hearing on his CrR 3.6 motion to suppress the evidence, he asserted that the officers did

not have probable cause to support the search warrant. In particular, he argued that he

reasonably answered that he had a four-year-old child because he thought the police were

looking for a child who had thrown something at them. He also noted that 10 minutes was

not an unusual length of time to talk to an attorney and change clothes, and that the request

for the warrant did not allege that anything was thrown from the direction of his house.

The trial court agreed, stating it failed "to see anything close to a nexus here."

Report of Proceedings (June 10, 2005) at 7. Even if the magistrate thought Mr. Young's

responses were untruthful, the trial court continued, the officer's information was too

general to show that Mr. Young's house was anywhere near the scene of the incident. Mr.

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No. 24332-0-III
State v. Young

Young's motion to suppress was granted, and the case was dismissed. The State timely

appealed to this court.

Probable Cause to Support the Search Warrant

The sole issue on appeal is whether the trial court erred in granting Mr. Young's

motion to suppress the evidence discovered during the execution of the search warrant.

The State contends the affidavit in support of the search warrant established the requisite

probable cause.

Under the warrant clause of the fourth amendment to the United States Constitution,

a search warrant may be issued only upon a showing of probable cause based upon facts

and circumstances establishing a reasonable inference that criminal activity is occurring or

that there is contraband at a certain location. Maddox, 152 Wn.2d at 505; State v. Vickers,
148 Wn.2d 91, 108, 59 P.3d 58 (2002).1 Probable cause is established when facts in the

affidavit supporting the search warrant show a reasonable probability that the defendant is

involved in the criminal activity. Vickers, 148 Wn.2d at 108. This affidavit must be based

on more than the officer's mere suspicion or personal belief that evidence of the crime may

be found at the location. Id.

Because the search warrant here was obtained telephonically, the affidavit is in the

1 This analysis is limited to the federal constitution because the State does not argue
under the state constitution.

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No. 24332-0-III
State v. Young

form of a telephone transcript between the officer and the magistrate. This court reviews

the magistrate's decision whether to issue a warrant for abuse of discretion, giving great

deference to that discretion. State v. Jackson, 150 Wn.2d 251, 265, 76 P.3d 217 (2003);

Vickers, 148 Wn.2d at 108. The affidavit is evaluated in the light of common sense, with

any doubts resolved in favor of the warrant. Jackson, 150 Wn.2d at 265; Vickers, 148

Wn.2d at 108-09.

Here, the trial court found the following facts from the affidavit innocuous: (1) Mr.

Young responded that he had a four-year-old child and did not reveal that he had an infant

when the officers asked if he had any children, (2) it took him 10 minutes to change

clothes and call an attorney while he was in the house, and (3) items had been thrown at

officers in the same general area on two previous occasions. The record supports the trial

court's appraisal of these facts.

First, when officers initially questioned Mr. Young about his children, they had not

told him they were investigating the throwing of baby food jars. They simply told him

someone had thrown items at them, and they then asked if he had any children. A

reasonable person could infer that the officers were asking whether he had a child capable

of throwing something at them. Consequently, his failure to mention that he had an infant

is not evidence of subterfuge or dishonesty.

Second, as the trial court found, 10 minutes was not an unreasonable length of time

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No. 24332-0-III
State v. Young

for Mr. Young to change into a shirt and shorts and call an attorney. The affidavit also

states that the officers saw basement lights go on while Mr. Young was in the house. But

nothing in the affidavit indicates that the officers heard suspicious noises or other signs of

contraband being destroyed or hidden in that brief time.

Third, the eggs that had been thrown at officers in the general area a couple of

weeks earlier, and the rocks thrown several months before that, were not sufficiently close

in time to support a reasonable belief that Mr. Young or someone in his house was

involved. Further, the trial court noted that nothing in the affidavit suggests that any of

these items -- including the baby food jars -- had been thrown from the direction of his
house.2 Any number of houses in the area could have had a car parked in front with a baby

seat installed, and any number of houses could have contained baby food jars. Nothing

suggested that jars in Mr. Young's house were likely used to assault police.

2 The State moves to strike the respondent's brief, which attaches two Kennewick
city maps and asks this court to take judicial notice that Mr. Young's house does not have
a view of the intersection where the baby food jars were lobbed. Although judicial notice
of the geography in the Kennewick neighborhood could have been argued at the
suppression hearing, State v. Jansen, 15 Wn. App. 348, 350-51, 549 P.2d 32 (1976), it is
not properly presented for the first time on appeal. RAP 2.5(a). Generally, review by this
court is confined to evidence presented to the trial court. State v. Elmore, 139 Wn.2d 250,
302, 985 P.2d 289 (1999). If we concluded that additional evidence was needed for
review, we would address whether the evidence complied with RAP 9.11, or we would
take judicial notice under ER 201. Here, however, we need not speculate whether the trial
court took judicial notice of the location of Mr. Young's house. Because we did not
consider the attachments to his brief, we deny the State's motion to strike.

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No. 24332-0-III
State v. Young

Even giving deference to the magistrate who issued the search warrant, the trial

court concluded that these innocuous facts did not create a sufficient nexus to tie Mr.

Young's house to criminal conduct. As stated in State v. Thein, "probable cause to search

a certain location must be based on a factual nexus between the evidence sought and the

place to be searched." 138 Wn.2d 133, 148, 977 P.2d 582 (1999). Without a sufficient

factual basis from which to determine that evidence of criminal activity will likely be

found at the place to be searched, a reasonable nexus is not established as a matter of law.

Id. at 147; see also Jackson, 150 Wn.2d at 267 (quoting Thein, 138 Wn.2d at 147).

Further, "[g]eneral, exploratory searches are unreasonable, unauthorized, and

invalid." Thein, 138 Wn.2d at 149. As the trial court stated at the hearing on the motion to

suppress, the Fourth Amendment protects citizens from police walking down the street and

pounding on each door to ask if there is baby food in the house. The trial court concluded

that the police essentially did just that, with no more than a hunch that Mr. Young was

involved in the criminal activity being investigated. Because the trial court properly

concluded that probable cause did not exist to support the warrant, we affirm.

Affirmed. Motion to strike denied.

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Aguila Blanca
February 20, 2007, 09:17 PM
Great Scott!

Logic from a group of judges. Who'd a thunk it?

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