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[U] State v. Riendeau, No. 17200-7-III (Wash.App.Div.3 04/13/1999)
[1]     Washington Court of Appeals
[2]     No. 17200-7-III
[3]     1999.WA.42582
[4]     April 13, 1999
[5]     STATE OF WASHINGTON, RESPONDENT,
v.
DUANE LEE RIENDEAU, JR., APPELLANT.
[6]     Source of Appeal: Appeal from Superior Court of Spokane County Docket No: 97-1-00226-6 Judgement or order under review Date filed: 01/16/1998 Judge signing: Hon. Paul A. Bastine
[7]     Counsel: Counsel for Appellant(s) Patrick K. Stiley Stiley & Associates 1408 W Broadway Spokane, WA 99201 Frank L. Cikutovich 1408 W Broadway Spokane, WA 99201 Counsel for Respondent(s) Kevin M. Korsmo Spokane County Prosecutor's Office W. 1100 Mallon Spokane, WA 99260 Janet G. Gemberling Prosecuting Aty's Office 1100 W Mallon Ave Spokane, WA 99260 Counsel for Other Parties Ann Prideaux (Appearing Pro Se) Official Court Reporter 1116 West Broadway Spokane, WA 99260 Joe Wittstock (Appearing Pro Se) Official Court Reporter 1100 West Mallon Spokane, WA 99260 Penny Rauschke (Appearing Pro Se) Official Court Reporter 1100 West Mallon Spokane, WA 99260
[8]     The opinion of the court was delivered by: Kato, J.
[9]     Judges: Authored by Kenneth H Kato Concurring: John A. Schultheis Stephen M. Brown
[10]    Panel Two
[11]    [Editor's note: originally released as an unpublished opinion]
[12]    Duane Lee Riendeau, Jr., was charged with possession of marijuana with intent to deliver. Claiming his motion to suppress should have been granted, he appeals. We affirm.
[13]    In September 1995, Spokane Police used a confidential informant to make controlled buys of marijuana and methadone from Robert Davison. On September 19, the informant attempted a controlled buy of methadone from him when other persons arrived who wanted to purchase marijuana. But Mr. Davison did not have any drugs. The surveillance unit saw Mr. Davison leave his home and followed him to two different addresses. He went to a residence on East Providence, which the police had previously identified as the home of his methadone supplier, and then to 2020 East Courtland. Mr. Davison returned to his home and delivered methadone to the informant and marijuana to one of the other persons.
[14]    On September 21, 1995, the police arrested Mr. Davison for delivery of a controlled substance. He told them he had bought the marijuana from Cindy and Duane at Courtland and Crestline. Mr. Davison also said they usually kept five ounces of marijuana in their refrigerator.
[15]    Detective Alan L. Quist filed an affidavit for a search warrant for 2020 East Courtland. The search warrant was signed by a Judge on September 21. The police executed the warrant later the same day. The police found marijuana at the home of Duane Riendeau and Cindy Hronek (aka Larson).
[16]    The State charged Mr. Riendeau with possession of marijuana with intent to deliver. During discovery, Mr. Riendeau's attorney learned the district court had no record of the search warrant return. Contending the affidavit contained insufficient facts to establish probable cause, Mr. Riendeau moved to suppress the evidence found during the search. He also argued suppression was required because the district court had no record of the filing of the search warrant return and was unable to provide the search warrant documents. The court denied the motion. Mr. Riendeau was convicted following a trial on stipulated facts. This appeal follows. Mr. Riendeau claims the court should have suppressed the evidence found during the search because the warrant was invalid. In determining the validity of a search warrant, we consider whether the affidavit on its face established probable cause. State v. Perez, 92 Wn. App. 1, 4, 963 P.2d 881 (1998). 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. Issuance of a warrant is a matter of judicial discretion and the magistrate's determination of probable cause is reviewed only for abuse of discretion. State v. Estorga, 60 Wn. App. 298, 303, 803 P.2d 813, review denied, 116 Wn.2d 1027 (1991). Any doubts regarding the validity of the warrant are resolved in favor of upholding it. Perez, 92 Wn. App. at 4.
[17]    The affidavit stated Mr. Riendeau kept a regular supply of marijuana and sold the drug to Mr. Davison. These facts would cause a reasonable person to conclude Mr. Riendeau was engaged in criminal activity possession and delivery of a controlled substance and evidence of that activity could be found at his residence. The affidavit established probable cause and was sufficient.
[18]    Mr. Riendeau next argues the affidavit was invalid because it did not satisfy the requirements for information given to the police by an informant. The affidavit for the search warrant was based upon information given to the police by Mr. Davison and a confidential informant. The State must satisfy a two-pronged test to obtain a search warrant based on an informant's tip. 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); State v. Jackson, 102 Wn.2d 432, 688 P.2d 136 (1984); State v. Riley, 34 Wn. App. 529, 663 P.2d 145 (1983). The first prong requires that the magistrate receive facts to determine whether the informant has a basis for his allegation a certain person committed a crime. Riley, 34 Wn. App. at 532. The second prong requires that sufficient facts be presented to a magistrate to determine the informant's credibility or reliability. Id.
[19]    Information showing 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). Mr. Davison told police he bought marijuana from Mr. Riendeau, who lived at Courtland and Crestline, and described the house. The police saw Mr. Davison enter this house on September 19. The confidential informant saw Mr. Davison sell marijuana that day, after the police had seen him enter the Courtland residence. Mr. Davison also described Mr. Riendeau's truck, which police had observed in front of the Courtland residence. He told police he knew Cindy and Duane usually kept five ounces of marijuana in their refrigerator. This information was based on Mr. Davison's personal knowledge. The basis of knowledge prong is satisfied.
[20]    The veracity prong may be established by showing the credibility of the informant or by showing that the facts and circumstances under which the information was furnished support an inference the informant is telling the truth. State v. Lair, 95 Wn.2d 706, 710, 630 P.2d 427 (1981). Statements made against an informant's penal interest are indicative of veracity. Id. at 711; See also State v. O'Connor, 39 Wn. App. 113, 119, 692 P.2d 208 (1984), review denied, 103 Wn.2d 1022 (1985). A statement against penal interest made by a named informant is stronger evidence of veracity. O'Connor, 39 Wn. App. at 120. Reliability may also be greater when statements against penal interest are made after arrest. Id. at 121. Mr. Davison made his statements to the police after he had been arrested. His statements established he was involved in drug sales and were statements against penal interest. The veracity prong is also satisfied. The affidavit contained statements made by the confidential informant as well. The affidavit establishes the veracity of the informant by stating the informant had given reliable information in the past. The informant's veracity was established.
[21]    The affidavit contained information given to the police by known informants. This information satisfied both prongs of the Aguilar-Spinelli test. The affidavit established probable cause. The court did not err by denying Mr. Riendeau's motion to suppress.
[22]    Mr. Riendeau further contends the court was required to suppress the evidence seized during the search because the warrant was not filed with district court. CrRLJ 2.3(c) requires that the search warrant return be filed unless sealed. The trial court entered a finding that the warrant documents were indeed filed in this case. Since Mr. Riendeau did not assign error to this finding, it is a verity on appeal. State v. Alexander, 125 Wn.2d 717, 723, 888 P.2d 1169 (1995). Thus, the requirements of CrRLJ 2.3 were followed.
[23]    Even if the warrant documents were not filed, the search would be valid. Absent constitutional considerations, the rules for execution and return of a warrant are ministerial in nature. State v. Kern, 81 Wn. App. 308, 311, 914 P.2d 114, review denied, 130 Wn.2d 1003 (1996); State v. Parker, 28 Wn. App. 425, 426, 626 P.2d 508 (1981). Generally, procedural noncompliance with these rules does not invalidate a warrant or otherwise require suppression of evidence absent a showing of prejudice to the defendant. Parker, 28 Wn. App. at 427. If the search was constitutional, suppression is only required if the failure to follow the rule harmed the defendant. Kern, 81 Wn. App. at 312.
[24]    Mr. Riendeau has failed to establish any prejudice. Although he received a copy of the warrant and the affidavit, Mr. Riendeau claims the copy was not authentic. A document can be authenticated by testimony that a document is what it is claimed to be. ER 901(b)(1). The issuing Judge filed a certification with the court stating he signed both copies of the warrants. Detective Quist also testified the copies were identical to the documents he filed. This testimony adequately authenticated the copies.
[25]    Affirmed.
[26]    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.
[27]    Kato, J.
[28]    WE CONCUR:
[29]    Schultheis, C.J.
[30]    Brown, J.