State Of Washington v. J. Leonor Salazar Dimas

• Court: Court of Appeals of Washington
• Decided: May 27, 2020
• Docket: 52708-1
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

May 27, 2020

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 52708-1-II

Respondent,

v.

J. LEONOR SALAZAR DIMAS, UNPUBLISHED OPINION

Appellant.

CRUSER, J. — J. Leonor Salazar Dimas appeals the trial court’s denial of his motion to

suppress controlled substance evidence seized while federal agents executed a search warrant for

a tax-related crime. Salazar Dimas claims that (1) the trial court erred in finding that the warrant

authorized federal agents to search for small items because the finding was not supported by

substantial evidence, (2) the search was constitutionally invalid because it was a general

exploratory search exceeding the scope of the warrant, and (3) the plain view exception to the

warrant requirement does not apply to the evidence seized in this case because the discovery was

not inadvertent and because it was not immediately apparent that the item seized was evidence

associated with criminal activity.

We hold that (1) the trial court’s finding that the warrant authorized agents to search for

small items was supported by substantial evidence, (2) the search was not unconstitutional because No. 52708-1-II

the agents were permitted to search in all containers where objects of the search are likely to be

found, and (3) the plain view exception applied to permit seizure of the evidence. Accordingly,

we affirm the trial court’s denial of Salazar Dimas’s motion to suppress.

FACTS

The Federal Bureau of Investigation (FBI) Olympia Resident Agency, Social Security

Administration, Internal Revenue Service (IRS) Criminal Investigation Division, and members of

local law enforcement formed an ad hoc task force to investigate Salazar Dimas for a possible drug

crime. The task force was also looking for evidence of money laundering or other financial crimes.

Eventually, the investigation transitioned to focus primarily on possible financial crimes, and the

IRS began to lead the investigative efforts.

On June 8, 2016, members of the task force executed a search warrant in Salazar Dimas’s

residence. The search warrant authorized task force agents to search Salazar Dimas’s residence

for documents, files, and materials in both physical and electronic form “that constitute evidence,

instrumentalities, or fruits of violations” of several tax evasion statutes. Clerk’s Papers (CP) at 31.

The warrant specified the types of evidence to be seized and included, among other evidence,

“[a]ny digital devices and storage device capable of being used to commit, further, or store

evidence of the offense listed above.” Id. at 32. In Agent Richard Schroff’s opinion, electronic

storage devices covered by the warrant included solid state drive (SSD) memory cards, which he

later testified at the CrR 3.6 hearing can be as small as “the size of a pinky nail.” 1 Verbatim

Report of Proceedings (VRP) at 22.

While an IRS agent was searching Salazar Dimas’s bedroom, he discovered opaque pill

bottles on a bedside table. The pill bottles contained “several plastic wrappers” on top of

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mismatched pills. Id. at 14. Some wrappers contained a “white powdery substance,” which

appeared to be cocaine, and others had “a green leafy material,” which appeared to be marijuana.

Id. The plastic wrappers were consistent with the method that individuals often use to store

controlled substances.

The IRS agent immediately informed Schroff, who was the lead investigator on behalf of

the FBI, of his discovery. The IRS agent told Schroff that he “‘found drugs.’” Id. Before

executing the warrant, the task force members agreed that IRS investigators would be responsible

for any evidence discovered related to the alleged financial crimes, and the FBI would be

responsible for any evidence discovered related to drug crimes. In informing Schroff, the IRS

agent acted in accord with the prior arrangement between the two agencies.

Schroff then contacted the Tumwater Police Department to request drug testing kits. After

testing a sample, Schroff confirmed that the white powdery substance was cocaine. At that point,

Schroff seized the pill bottles, the white powdery substance, the green leafy material, and the

unidentified pills.

The State charged Salazar Dimas with unlawful possession of a controlled substance-

cocaine. Salazar Dimas moved to suppress the cocaine.

The trial court held a CrR 3.6 hearing during which Schroff provided the only testimony.

Schroff testified consistently with the facts as laid out above. Schroff asserted that because the

warrant included electronic storage devices that could be “the size of a pinky nail,” the agents were

permitted to search any container on the premises big enough to store such items. Id. at 22. Given

the small size of potential evidence, Schroff believed that there was effectively “[n]o” limitation

to the containers the task force agents were permitted to search. Id. at 23.

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The trial court denied the motion to suppress, concluding that the controlled substance

evidence was admissible at trial because the discovery satisfied the requirements of the plain view

exception to the warrant requirement. The trial court found that “[t]he nature of the electronic

storage medium and devices that the warrant authorized the agents to search for was very small.”

CP at 5. Due to the small size of potential evidence covered by the warrant, the trial court

concluded that “agents correctly searched for devices in anything that could reasonably hold

something as small as that described by [Agent] Schroff.” Id.

A jury found Salazar Dimas guilty of possession of a controlled substance. Salazar Dimas

was sentenced to 60 days confinement, with the last 30 days served on work release, and 12 months

community custody. Salazar Dimas appeals only the trial court’s denial of his motion to suppress.

DISCUSSION

I. SUBSTANTIAL EVIDENCE SUPPORTS THE TRIAL COURT’S FACTUAL FINDINGS

Salazar Dimas challenges the trial court’s finding that “‘[t]he nature of the electronic

storage medium and devices that the warrant authorized the agents to search for was very small.’”

Br. of Appellant at 7 (quoting CP at 5). Salazar Dimas contends that the trial court erred when it

relied on Agent Schroff’s testimony, adopted in the findings of fact, that electronic storage devices

could be the size of a pinky fingernail. Salazar Dimas claims that Schroff’s testimony in support

of this finding, without further evidence, is insufficient. We disagree because substantial evidence

supports the finding, and Salazar Dimas’s challenge is predicated on a contention to the trial court’s

determination of weight and credibility, which we will not disturb on appeal.

Following denial of a suppression motion, we review challenged findings to determine

whether they are supported by substantial evidence. State v. Garvin, 166 Wn.2d 242, 249, 207

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P.3d 1266 (2009). Substantial evidence exists when there is sufficient evidence in the record “‘to

persuade a fair-minded person of the truth of the stated premise.’” Id. (quoting State v. Reid, 98

Wn. App. 152, 156, 988 P.2d 1038 (1999)). We will defer to the trial court on issues of witness

credibility and weight of the evidence, but “the ultimate determination of whether those facts

constitute a violation of the constitution is one of law and is reviewed de novo.” State v. Budd,

186 Wn. App. 184, 196, 347 P.3d 49 (2015), aff’d, 185 Wn.2d 566, 374 P.3d 137 (2016).

Challenged facts that are supported by substantial evidence are binding on appeal, and

unchallenged facts are treated as verities. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994).

Here, Schroff testified that the task force was searching for electronic storage devices such

as SSD cards and thumb drives. He further explained that SSD cards may occasionally be as small

as his pinky nail, and these devices may be found in locations such as pill bottles. This evidence

is sufficient to persuade a rational person that electronic storage devices subject to the search

warrant may be small in size.

We disagree with Salazar Dimas’s claim that Schroff’s testimony was insufficient because

he did not describe any expertise regarding “digital media” and he did not testify regarding any

prior experience in “executing federal tax warrants” involving these types of storage devices. Br.

of Appellant at 8. This assertion goes to Schroff’s credibility, but “[t]he trier of fact is in a better

position to assess the credibility of witnesses, take evidence, and observe the demeanor of those

testifying.” Hill, 123 Wn.2d at 646.

Salazar Dimas also claims that the evidence was insufficient because the agent who initially

found the controlled substance inside the pill bottles did not testify at this hearing. This claim also

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fails because there is no reason that the agent who discovered the evidence would be in a better

position to testify about the scope of the warrant or the size of electronic storage devices generally.

II. SCOPE OF THE SEARCH

Salazar Dimas challenges the trial court’s conclusions of law that the premises warrant in

this case authorized the law enforcement officers to search any container within the premises that

could reasonably hold data storage devices of the small size described by Schroff and that the

search by the officers did not exceed the scope of the warrant. He argues that the search was

constitutionally invalid because the warrant was limited to evidence pertaining to alleged tax

crimes but agents searched for evidence that went beyond the alleged tax crimes, and the scope of

the search was so broad that it was effectively a general exploratory search. We disagree and hold

that the warrant authorized the officers to look inside any containers within the premises that might

reasonably contain evidence of the crime under investigation and that the officers did not exceed

the allowable scope of the search by looking inside small containers that might hold small data

storage devices.

A. LEGAL PRINCIPLES

Law enforcement officers must execute a warrant within the strict limits set by the warrant.

State v. Figeroa Martines, 184 Wn.2d 83, 94, 355 P.3d 1111 (2015). The scope of a search warrant

is determined by a common-sense reading of the warrant. State v. Lyons, 174 Wn.2d 354, 360,

275 P.3d 314 (2012). We review a trial court’s conclusions of law pertaining to a suppression

hearing de novo. Figeroa Martines, 184 Wn.2d at 90. We will also review de novo whether a

search violated the Fourth Amendment of the United States Constitution or article I, section 7 of

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the Washington Constitution. State v. Witkowski, 3 Wn. App. 2d 318, 324, 338, 415 P.3d 639,

review denied, 191 Wn.2d 1016 (2018).

Washington courts have held that when police execute a premises search warrant, they are

authorized to search containers within the premises where the objects of the search are likely to be

found. Witkowski, 3 Wn. App. 2d at 328; see also State v. Simonson, 91 Wn. App. 874, 878, 886-

87, 960 P.2d 955 (1998). A search warrant that covers the search of a house also includes within

its scope “a search of containers in the house that could hold one or more of the items specified in

the warrant.” Simonson, 91 Wn. App. at 887.

B. ANALYSIS

Salazar Dimas does not challenge the validity of the warrant but instead limits his claim to

a challenge regarding the scope of the search itself and what was authorized by the plain language

of the warrant. To support his assertion that the task force agents exceeded the allowable scope of

the warrant, he relies on the testimony of Schroff at the CrR 3.6 hearing. Further, he

mischaracterizes Schroff’s testimony. Salazar Dimas asserts that Schroff “perhaps hubristically,

but certainly candidly,” admitted that there was no limit to the scope of the agents’ search. Br. of

Appellant at 13. However, Schroff’s response was narrower than Salazar Dimas implies because

Schroff stated that there was no limit to the types of containers agents could permissibly search.

Furthermore, Schroff’s opinion about the breadth of the search permitted by the warrant is

irrelevant. The allowable scope of the search, and whether the agents exceeded that scope, were

questions for the trial court. The trial court solved this question by examining the plain language

of the warrant and the conduct of the agents. A law enforcement officer’s opinion about whether

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law enforcement exceeded the allowable scope of a search plays no role in the trial court’s analysis

nor in our analysis.

The scope of the search that the agents conducted did not exceed the authority granted to

them by the warrant because they were permitted to search containers where the objects of the

search may likely be discovered. See Witkowski, 3 Wn. App. 2d at 328. Because a premises

warrant authorizes the search of any container within the premise that could hold the items sought

in the warrant, the trial court did not err in concluding that this warrant allowed the agents to search

in any container, even one as small as the pill bottle in question here, for data storage devices that

might contain evidence of the financial crimes under investigation. Consequently, the agents’

search of all containers that could potentially hold evidence the size of a “pinky fingertip” did not

exceed the scope of the search warrant. CP at 5.

III. PLAIN VIEW EXCEPTION

Salazar Dimas argues that the plain view exception to the warrant requirement does not

apply to the evidence in this case because the controlled substance was not discovered

inadvertently and because the agent had to test the substance to confirm that it was cocaine. We

disagree and hold that the evidence is admissible because it was discovered in plain view during a

search authorized by a valid warrant.

“‘Officers with a proper search warrant for premises have the right to seize any contraband

which they discover while conducting a search within the scope of the warrant.’” State v. Hatt, 11

Wn. App. 2d 113, 134, 452 P.3d 577 (2019) (quoting State v. Burleson, 18 Wn. App. 233, 239,

566 P.2d 1277 (1977)), review denied, No. 97994-4, 2020 WL 1551273 (Wash. Apr. 1, 2020).

This is so because “a policeman in the course of a valid search is entitled to keep his senses open

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to the possibility of contraband, weapons, or evidence of a crime. This recognition is at the core

of the plain view doctrine.” State v. Lair, 95 Wn.2d 706, 719, 630 P.2d 427 (1981).

Here, officers were lawfully permitted to search inside the opaque pill bottles. As

explained in section II, supra, the warrant permitted agents to search all containers that could

potentially hold evidence of the crime under investigation. See Witkowski, 3 Wn. App. 2d at 328.

In this case, evidence of the financial crimes under investigation could have been found on small

electronic storage devices of the type that could feasibly fit in a pill bottle.

Evidence seized pursuant to the plain view doctrine is admissible “when the police (1) have

a valid justification to be in an otherwise protected area, provided that they are not there on a

pretext, and (2) are immediately able to realize the evidence they see is associated with criminal

activity.” State v. Morgan, 193 Wn.2d 365, 371, 440 P.3d 136 (2019), cert. denied, No. 19-494,

2020 WL 873829 (U.S. Feb. 24, 2020). There is no inadvertent discovery requirement to admit

evidence pursuant to the plain view doctrine. Id.

Salazar Dimas agrees that the valid justification requirement is satisfied by the existence

of the search warrant in this case. In addition, because there is no inadvertence requirement,

Salazar Dimas’s contention that the evidence was not discovered inadvertently is irrelevant. Id.

Therefore, the only issue before us is whether the agents were able to immediately realize that the

items discovered in the pill bottles were associated with criminal activity. See id.

The plastic-wrapped white powdery substance was immediately recognizable as evidence

of criminal activity. This prong of the plain view exception is established ‘“when, considering the

surrounding circumstances, the police can reasonably conclude’ that the subject evidence is

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associated with a crime.” Id. at 372 (quoting State v. Hudson, 124 Wn.2d 107, 118, 874 P.2d 160

(1994)).

Here, Schroff testified that the IRS agent informed him that he “‘found drugs’”

immediately upon discovering the plastic wrapped white powdery substance in the pill bottles. 1

VRP at 14. Schroff agreed that according to his first impression, the white powdery substance was

cocaine. In addition, Schroff explained that the type of packaging was consistent with that often

used to contain controlled substances. These circumstances are sufficient to allow law

enforcement officials to reasonably conclude that the plastic-wrapped packages contained

evidence associated with a crime. See Morgan, 193 Wn.2d at 372.

Salazar Dimas’s claim that the evidence did not satisfy the second prong of the plain view

doctrine because the officers could not confirm that the substance was cocaine until after it was

tested is without merit. “Certainty is not necessary.” Id. It was enough that multiple agents

immediately recognized that the white powdery substance was likely cocaine. The evidence is

therefore admissible pursuant to the plain view doctrine even if the evidence described by the valid

search warrant was limited to evidence of alleged federal tax crimes.

CONCLUSION

We hold that (1) the trial court’s finding that the warrant authorized agents to search for

electronic storage devices that can sometimes be small objects was supported by substantial

evidence, (2) the scope of the search was constitutional because the agents were permitted to search

containers that were likely to contain evidence of the crimes listed in the warrant and the officers’

search did not exceed the allowable scope of the warrant, and (3) the controlled substance

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discovered in the opaque pill bottles was admissible pursuant to the plain view exception to the

warrant requirement. Accordingly, affirm.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.

CRUSER, J. We concur:

MAXA, P.J.

GLASGOW, J.