|
Frank Cikutovich:
Cases
|
|
State v. Mendoza, 111 Wash.App. 1012 (Wash.App.Div.3 04/16/2002)
|
| [1] |
Washington Court of Appeals |
| [2] |
No. 20013-2-III |
| [3] |
111 Wash.App. 1012, 2002.WA.0000564 |
| [4] |
April 16, 2002 |
| [5] |
STATE OF WASHINGTON, RESPONDENT,
v.
JOSE JUAN MENDOZA, APPELLANT. |
| [6] |
SOURCE OF APPEAL Appeal from Superior Court of Adams County
Docket No: 001000375 Judgment or order under review Date filed:
02/15/2001 Judge signing: Hon. Richard W. Miller |
| [7] |
Counsel OF Record Counsel for Appellant(s):
Frank L. Cikutovich, Stiley
& Cikutovich, 1408 W Broadway, Spokane, WA 99201.
Counsel for Respondent(s): Randy J. Flyckt, 207 N Washington St,
Ritzville, WA 99169. |
| [8] |
The opinion of the court was delivered by: Kato, J. |
| [9] |
Concurring: Stephen M. Brown, Dennis J. Sweeney |
| [10] |
UNPUBLISHED OPINION |
| [11] |
Jose Mendoza was convicted on one count of manufacture of a
controlled substance -- marijuana. Claiming the court erred by denying
his motion to suppress, Mr. Mendoza appeals. We affirm. |
| [12] |
Special agents of the Federal Drug Enforcement Administration
(DEA) were working with a cooperating source (CS) to conduct controlled
buys of cocaine. The CS contacted Julian Ruelas, who told the CS
he could sell him cocaine. |
| [13] |
On February 10, 2000, DEA agents gave the CS money and equipped
him with a transmitting device. After meeting with Mr. Ruelas, the
CS gave the agents five ounces of cocaine. |
| [14] |
On February 16, the agents contacted the CS to set up another
controlled buy. The next day, the CS again equipped with a transmitting
device and cash, met Mr. Ruelas and asked to buy five ounces of
cocaine. Mr. Ruelas told the CS he only had three. Mr. Ruelas told
the CS he kept his stuff at a friend's house, where he would go
to get the additional two ounces. The CS relayed this information
to DEA agents. |
| [15] |
DEA agents saw Mr. Ruelas go to a residence at 316 East Hemlock
Street in Othello. An unidentified male handed something to Mr.
Ruelas. The agents then saw Mr. Ruelas leave the residence in a
small blue vehicle. They lost sight of the vehicle, but later observed
it in a parking lot where Mr. Ruelas contacted the CS and gave him
the drugs. Then Mr. Ruelas returned to 316 East Hemlock and entered
the residence, which was owned by Jose J. Mendoza according to Adams
County records. Thereafter, the CS gave DEA agents the five ounces
of cocaine. |
| [16] |
Agent Hart of the DEA opined that Mr. Ruelas's return to the
residence was consistent with 'fronting,' where a drug trafficker
receives contraband from the source without paying for it and returns
with payment after the sale. Clerk's Papers (CP) at 9. |
| [17] |
Based upon this investigation, Agent Hart believed Mr. Ruelas
was using Mr. Mendoza's house to facilitate the distribution of
controlled substances. He obtained a search warrant for the house.
During the search, the agent found five marijuana plants and arrested
Mr. Mendoza. |
| [18] |
The State charged him with manufacture of a controlled substance
-- marijuana. Mr. Mendoza filed a motion to suppress, claiming the
affidavit supporting the search warrant was insufficient. The court
denied the motion. Thereafter, Mr. Mendoza was found guilty after
a trial on stipulated facts. This appeal follows. |
| [19] |
Mr. Mendoza claims the court should have granted his motion
to suppress because the affidavit supporting the search warrant
was invalid. In determining the validity of a search warrant, the
court considers whether the affidavit, on its face, established
probable cause. State v. Perez, 92 Wn. App. 1, 4, 963 P.2d 881 (1998),
review denied, 137 Wn.2d 1035 (1999). An affidavit is sufficient
to support probable cause if it contains information from which
an ordinarily prudent person would conclude a crime has been committed
and evidence of a crime can be found at the place to be searched.
Id. |
| [20] |
Affidavits are to be read 'as a whole, in a commonsense, non-technical
manner, with doubts resolved in favor of the warrant.' State v.
Casto, 39 Wn. App. 229, 232, 692 P.2d 890 (1984), review denied,
103 Wn.2d 1020 (1985). The magistrate's determination of probable
cause is reviewed only for an abuse of discretion. State v. Estorga,
60 Wn. App. 298, 303, 803 P.2d 813, review denied, 116 Wn.2d 1027
(1991). |
| [21] |
Mr. Mendoza first contends the affidavit supporting the warrant
was invalid because it failed to provide sufficient facts to establish
a connection between criminal activity and his residence at 316
East Hemlock. Probable cause requires not only a nexus between criminal
activity and the item to be seized, but also a nexus between the
item to be seized and the place to be searched. State v. Thein,
138 Wn.2d 133, 140, 977 P.2d 582 (1999) (quoting State v. Goble,
88 Wn. App. 503, 509, 945 P.2d 263 (1997)). Absent a sufficient
basis in fact from which a court could conclude evidence of illegal
activity will likely be found at the place to be searched, a reasonable
nexus is not established as a matter of law. Thein, 138 Wn.2d at
150-51. |
| [22] |
During a controlled buy, Mr. Ruelas told the CS that he did
not have the amount of cocaine sought and that he kept 'the stuff'
at a friend's house, where he would go get it, and come back. Search
Warrant Affidavit at 5. Mr. Ruelas was seen leaving the area and
arriving at Mr. Mendoza's house. An unidentified male gave him something.
Mr. Ruelas then gave the CS cocaine and returned to Mr. Mendoza's.
This activity was consistent with 'fronting,' and established a
reasonable nexus between criminal activity and 316 East Hemlock.
There was probable cause that criminal activity took place at Mr.
Mendoza's house. |
| [23] |
He also argues the warrant was invalid because it did not satisfy
the requirements for reliability of information given to the police
by informants. The affidavit was based on information given to DEA
agents by the CS. Washington courts apply the two-pronged Aguilar-Spinelli*fn1
test to determine whether an informant's tip establishes probable
cause for a search warrant. State v. Cole, 128 Wn.2d 262, 287, 906
P.2d 925 (1995). The first prong requires that the magistrate receive
facts to determine if the informant has a basis for his allegation
that a certain person has committed a crime. State v. Riley, 34
Wn. App. 529, 532, 663 P.2d 145 (1983). The second prong requires
that sufficient facts exist for the magistrate to determine the
informant's credibility or reliability. Id. |
| [24] |
Information that the informant personally saw the facts asserted
and is passing on firsthand information satisfies the basis-of-knowledge
prong. State v. Duncan, 81 Wn. App. 70, 76, 912 P.2d 1090, review
denied, 130 Wn.2d 1001 (1996). The CS gave DEA agents information
based upon his personal dealings with Mr. Ruelas. The basis-of-knowledge
prong was satisfied. |
| [25] |
The veracity prong is satisfied by showing the credibility of
the informant or by establishing that the facts and circumstances
surrounding the furnishing of the information supports an inference
that the informant is telling the truth. State v. Lair, 95 Wn.2d
706, 710, 630 P.2d 427 (1981). Nothing in the affidavit here establishes
the CS's reliability. The DEA agent only stated how he knew the
CS, who had previously worked as an informant for local law enforcement.
The affidavit merely indicates the CS is on probation for theft
and cooperating for monetary purposes. Reliability was not established.
Accordingly, the affidavit failed to satisfy the veracity prong. |
| [26] |
But if the affidavit fails to satisfy either prong, corroboration
of the informant's tip with information discovered through an independent
police investigation may cure the deficiency. State v. Taylor, 74
Wn. App. 111, 116, 872 P.2d 53, review denied, 124 Wn.2d 1029 (1994).
In order for the police investigation to suffice, the information
discovered must suggest ''probative indications of criminal activity
along the lines suggested by the informant.'' State v. Jackson,
102 Wn.2d 432, 438, 688 P.2d 136 (1984) (quoting United States v.
Canieso, 470 F.2d 1224, 1231 (2d Cir. 1972)). The investigation
must also verify more than innocuous facts. State v. Huft, 106 Wn.2d
206, 210, 720 P.2d 838 (1986). |
| [27] |
The police investigation corroborated the CS's information.
During the controlled buys, the DEA had the CS wired and DEA agents
monitored his actions. The CS told the agents Mr. Ruelas kept drugs
at his friend's house and he had to go retrieve them to complete
the sale. The agents then saw Mr. Ruelas leave the area with the
CS and go to Mr. Mendoza's house. They saw an unidentified male
give something to Mr. Ruelas. Thereafter, Mr. Ruelas sold drugs
to the CS. The agents observed Mr. Ruelas return to Mr. Mendoza's.
The agents noted this activity was consistent with 'fronting.' |
| [28] |
The investigation corroborated the CS's information and suggested
criminal activity was occurring at Mr. Mendoza's house. The corroborating
information consisted of more than innocuous facts. The investigation
thus overcame the deficiencies in the affidavit. The court did not
err by denying the motion to suppress. |
| [29] |
Affirmed. |
| [30] |
A majority of the panel has determined this opinion will not
be printed in the Washington Appellate Reports, but it will be filed
for public record pursuant to RCW 2.06.040. |
| [31] |
WE CONCUR: |
| [32] |
Brown, C.J. |
| [33] |
Sweeney, J. |
| |
|
| |
Opinion Footnotes |
| |
|
| [34] |
*fn1 Spinelli v. United States,
393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v.
Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). |
|
|
