FILED
SEPTEMBER 1,2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 32406-1-111 Respondent, ) ) v. ) ) JOSE MARTINEZ II, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. - The remaining issue in this third appeal of this case is whether the
trial court erred in denying Jose Martinez's motion to suppress. We affirm.
FACTS
The operative facts of this case are largely procedural. Mr. Martinez was charged
in 2008 with three counts of possession of cocaine with intent to deliver and
accompanying school bus stop enhancements. The charges followed a series of
controlled buys by an informant that led to the issuance of a search warrant. Defense
counsel filed a motion to suppress the evidence, alleging that the search warrant was
inadequate because it merely used the words "controlled buy" without adequately
describing the process. The motion, however, was never heard because a plea agreement No. 32406-I-III State v. Martinez
was reached. Mr. Martinez pleaded guilty to one count (without an enhancement) and
was sentenced to 20 months of confinement.
The following year he moved to withdraw his guilty plea on the basis that his
counsel failed to provide adequate information concerning the immigration consequences
of his guilty plea. This court granted him relief after determining that his trial counsel
failed to provide effective assistance. State v. Martinez, 161 Wn. App. 436, 253 P.3d 445
(2011).
Represented by new counsel, Mr. Martinez stood trial on the original charges.
New counsel did not renew the original motion to suppress. A jury found Mr. Martinez
guilty on two counts and also found both enhancements proven. He was sentenced to 68
months in prison. He appealed again to this court.
In the second appeal, he argued that his most recent trial counsel had performed
ineffectively by not renewing the challenge to the search warrant. 1 Because the record
was insufficient to adjudge the ineffective assistance claim, this court remanded for a
suppression hearing in accordance with the decision in State v. Jansen, 15 Wn. App. 348,
549 P.2d 32, review denied, 87 Wn.2d 1015 (1976).2 See State v. Martinez, noted at 178
I He also raised several other arguments that we concluded were without merit. 2 We discuss Jansen more fully later in this opinion.
No. 32406-1-III State v. Martinez
Wn. App. 1031 (2013) (Martinez II). Mr. Martinez did not seek review of our decision.
The case was mandated back to the Walla Walla Superior Court.
At the suppression hearing, the trial court considered the testimony of both the
detective who prepared the search warrant affidavit and the magistrate who issued the
search warrant. Both testified that they understood the term "controlled buy" to mean a
situation in which an informant agrees to purchase drugs at a particular location, is
searched for the presence of controlled substances, is given money with which to
purchase a controlled substance, is observed by law enforcement enter into the company
of the suspect, and is searched again upon the informant's return with the purchased
substance. Clerk's Papers (CP) at 161-162. The trial judge found this testimony credible
and concluded that the officer used the phrase as a "term of art" and that the issuing
magistrate likewise understood it in the same manner. The motion to suppress was
denied. CP at 163.
Mr. Martinez again appealed to this court.
ANALYSIS
The sole issue in this appeal is whether the trial court correctly denied the motion
to suppress. We agree with the trial court that the search warrant established probable
cause to search Mr. Martinez's residence.
Probable cause to issue a warrant is established if the supporting affidavit sets forth
"facts sufficient for a reasonable person to conclude the defendant probably is involved in
criminal activity." State v. Hujt, 106 Wn.2d 206,209, 720 P.2d 838 (1986). The affidavit
must be tested in a commonsense fashion rather than hypertechnically; doubts are resolved
in favor of the warrant. State v. Partin, 88 Wn.2d 899, 904, 567 P.2d 1136 (1977). The
existence of probable cause is a legal question which a reviewing court considers de novo.
State v. Chamberlin, 161 Wn.2d 30, 40, 162 P.3d 389 (2007). Despite the fact that de novo
review applies to questions of law rather than discretionary decisions, "[g]reat deference is
accorded the issuing magistrate's determination of probable cause." State v. Cord, 103
Wn.2d 361, 366, 693 P.2d 81 (1985). Even if the propriety ofissuing the warrant were
debatable, the deference due the magistrate's decision would tip the balance in favor of
upholding the warrant. State v. Jackson, 102 Wn.2d 432, 446, 688 P.2d 136 (1984). In
light of the deference owed the magistrate's decision, the proper question on review is
whether the magistrate could draw the connection, not whether he should do so.
Washington continues to apply the former AguilarlSpinellP standards to assess the
adequacy of a search warrant affidavit. Jackson, 102 Wn.2d at 446. 4 As applied in
Washington, probable cause based on an informant's information requires that an affidavit
establish both the informant's reliability and basis of knowledge. Id. at 443. Where one or
3 Aguilar v. Texas, 378 U.S. 108,84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410,89 S. Ct. 584,21 L. Ed. 2d 637 (1969). 4 Federal courts now apply a totality of the circumstances test in evaluating the sufficiency of a search warrant. Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).
No. 32406~ I-III State v. Martinez
both of those factors is weak, independent police investigation can supply corroboration. Id.
at 445.
Police frequently use infonnants to make purchases of controlled substances. A
properly conducted controlled buy makes an infonnant a credible source of infonnation.
E.g., State v. Casto, 39 Wn. App. 229, 234-235, 692 P.2d 890 (1984). The reason was
explained:
In a "controlled buy," an infonnant claiming to know that drugs are for sale at a particular place is given marked money, searched for drugs, and observed while sent into the specified location. If the infonnant "goes in empty and comes out full," his assertion that drugs were available is proven, and his reliability confinned. Properly executed, a controlled buy can thus provide the facts and circumstances necessary to satisfy both prongs of the test for probable cause.
Id.
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FILED
SEPTEMBER 1,2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 32406-1-111 Respondent, ) ) v. ) ) JOSE MARTINEZ II, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. - The remaining issue in this third appeal of this case is whether the
trial court erred in denying Jose Martinez's motion to suppress. We affirm.
FACTS
The operative facts of this case are largely procedural. Mr. Martinez was charged
in 2008 with three counts of possession of cocaine with intent to deliver and
accompanying school bus stop enhancements. The charges followed a series of
controlled buys by an informant that led to the issuance of a search warrant. Defense
counsel filed a motion to suppress the evidence, alleging that the search warrant was
inadequate because it merely used the words "controlled buy" without adequately
describing the process. The motion, however, was never heard because a plea agreement No. 32406-I-III State v. Martinez
was reached. Mr. Martinez pleaded guilty to one count (without an enhancement) and
was sentenced to 20 months of confinement.
The following year he moved to withdraw his guilty plea on the basis that his
counsel failed to provide adequate information concerning the immigration consequences
of his guilty plea. This court granted him relief after determining that his trial counsel
failed to provide effective assistance. State v. Martinez, 161 Wn. App. 436, 253 P.3d 445
(2011).
Represented by new counsel, Mr. Martinez stood trial on the original charges.
New counsel did not renew the original motion to suppress. A jury found Mr. Martinez
guilty on two counts and also found both enhancements proven. He was sentenced to 68
months in prison. He appealed again to this court.
In the second appeal, he argued that his most recent trial counsel had performed
ineffectively by not renewing the challenge to the search warrant. 1 Because the record
was insufficient to adjudge the ineffective assistance claim, this court remanded for a
suppression hearing in accordance with the decision in State v. Jansen, 15 Wn. App. 348,
549 P.2d 32, review denied, 87 Wn.2d 1015 (1976).2 See State v. Martinez, noted at 178
I He also raised several other arguments that we concluded were without merit. 2 We discuss Jansen more fully later in this opinion.
No. 32406-1-III State v. Martinez
Wn. App. 1031 (2013) (Martinez II). Mr. Martinez did not seek review of our decision.
The case was mandated back to the Walla Walla Superior Court.
At the suppression hearing, the trial court considered the testimony of both the
detective who prepared the search warrant affidavit and the magistrate who issued the
search warrant. Both testified that they understood the term "controlled buy" to mean a
situation in which an informant agrees to purchase drugs at a particular location, is
searched for the presence of controlled substances, is given money with which to
purchase a controlled substance, is observed by law enforcement enter into the company
of the suspect, and is searched again upon the informant's return with the purchased
substance. Clerk's Papers (CP) at 161-162. The trial judge found this testimony credible
and concluded that the officer used the phrase as a "term of art" and that the issuing
magistrate likewise understood it in the same manner. The motion to suppress was
denied. CP at 163.
Mr. Martinez again appealed to this court.
ANALYSIS
The sole issue in this appeal is whether the trial court correctly denied the motion
to suppress. We agree with the trial court that the search warrant established probable
cause to search Mr. Martinez's residence.
Probable cause to issue a warrant is established if the supporting affidavit sets forth
"facts sufficient for a reasonable person to conclude the defendant probably is involved in
criminal activity." State v. Hujt, 106 Wn.2d 206,209, 720 P.2d 838 (1986). The affidavit
must be tested in a commonsense fashion rather than hypertechnically; doubts are resolved
in favor of the warrant. State v. Partin, 88 Wn.2d 899, 904, 567 P.2d 1136 (1977). The
existence of probable cause is a legal question which a reviewing court considers de novo.
State v. Chamberlin, 161 Wn.2d 30, 40, 162 P.3d 389 (2007). Despite the fact that de novo
review applies to questions of law rather than discretionary decisions, "[g]reat deference is
accorded the issuing magistrate's determination of probable cause." State v. Cord, 103
Wn.2d 361, 366, 693 P.2d 81 (1985). Even if the propriety ofissuing the warrant were
debatable, the deference due the magistrate's decision would tip the balance in favor of
upholding the warrant. State v. Jackson, 102 Wn.2d 432, 446, 688 P.2d 136 (1984). In
light of the deference owed the magistrate's decision, the proper question on review is
whether the magistrate could draw the connection, not whether he should do so.
Washington continues to apply the former AguilarlSpinellP standards to assess the
adequacy of a search warrant affidavit. Jackson, 102 Wn.2d at 446. 4 As applied in
Washington, probable cause based on an informant's information requires that an affidavit
establish both the informant's reliability and basis of knowledge. Id. at 443. Where one or
3 Aguilar v. Texas, 378 U.S. 108,84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410,89 S. Ct. 584,21 L. Ed. 2d 637 (1969). 4 Federal courts now apply a totality of the circumstances test in evaluating the sufficiency of a search warrant. Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).
No. 32406~ I-III State v. Martinez
both of those factors is weak, independent police investigation can supply corroboration. Id.
at 445.
Police frequently use infonnants to make purchases of controlled substances. A
properly conducted controlled buy makes an infonnant a credible source of infonnation.
E.g., State v. Casto, 39 Wn. App. 229, 234-235, 692 P.2d 890 (1984). The reason was
explained:
In a "controlled buy," an infonnant claiming to know that drugs are for sale at a particular place is given marked money, searched for drugs, and observed while sent into the specified location. If the infonnant "goes in empty and comes out full," his assertion that drugs were available is proven, and his reliability confinned. Properly executed, a controlled buy can thus provide the facts and circumstances necessary to satisfy both prongs of the test for probable cause.
Id.
This court has suggested that a controlled buy must be described in order to
provide a basis for assuring the informant's reliability. State v. Taylor, 74 Wn. App. 111,
122,872 P.2d 53 (1994). In our Martinez II opinion, we recognized that this aspect of
Taylor was dicta. See Martinez II at *2. Our opinion also discussed Jansen. Id.
Jansen presented a factually similar problem to that presented in Martinez II.
There, as in this case, the search warrant affidavit discussed the use of a "controlled buy"
without describing how the controlled buy was conducted. 15 Wn. App. at 349. The
prosecutor sought to call the magistrate who issued the warrant to testify at the
suppression hearing that he knew the words "controlled buy" were a tenn of art and also
No. 32406-1-II1 State v. Martinez
argued that the trial judge should have taken judicial notice of the meaning. ld. at 350.
Division One of this court remanded the case for the State to offer proof that the detective
and the magistrate both considered the phrase a term of art. ld. at 351.
Under the circumstances 5 of this case, we followed Jansen in the previous appeal
and remanded for a suppression hearing. Mr. Martinez's primary argument here is that
this court erred in following Jansen. His argument that we should not have remanded for
hearing fails under the law of the case doctrine. Folsom v. County a/Spokane, III
Wn.2d 256, 263-265, 759 P.2d 1196 (1988). He did not seek further review of Martinez
II and, instead, accepted the benefit of the suppression hearing. Absent a showing that
our previous decision was clearly erroneous and harmful, that decision stands. ld. at 264.
His more significant claim in this regard is that Jansen was wrongly decided
because Washington courts are limited to the four corners of the search warrant affidavit.
See State v. Neth, 165 Wn.2d 177, 182, 196 P3d 658 (2008). 6 This argument is actually
5 Critical to the previous appeal was the fact that the unnoted motion had never been heard, leaving the State no opportunity to provide its evidence. An entirely different situation would have been presented if a hearing had been held and the State had neglected to present evidence. Then the State would have been limited to the record made below, although it would still have been free to argue that "controlled buy" is a term of art. 6 Neth is the first Washington Supreme Court case to state that principle, but it did so as part of its recitation of search warrant review standards. The issue was not before the court in Neth.
a challenge to a portion of erR 2.3, the rule governing search warrants. In part, that rule
pennits a judge to take-and make a record of--evidence that it is outside the search
warrant affidavit in support of its probable cause detennination. Mr. Martinez's
argument misses the mark because the trial court was not asked to consider evidence
outside the four comers of the affidavit. Instead, it was asked to detennine the meaning
of evidence found in the affidavit-the meaning of "controlled buy." Under Jansen, the
State was permitted to put forth evidence of the magistrate's understanding of the phrase
that he had considered as part of his determination of probable cause. Extrinsic evidence
is permitted to explain the meaning of tenns of a contract. Berg v. Hudesman, 115
Wn.2d 657,801 P.2d 222 (1990). Jansen, well ahead of Berg, essentially applied the
same principle to search warrant affidavits.
For both reasons, we conclude that the trial court did not err in considering
evidence of the meaning attributed to the words "controlled buy" by both the issuing
magistrate and the detective who prepared the affidavit in support of the search warrant.
This court directed the trial court to follow Jansen and Washington law does not conflict
with that decision. Accordingly, both of Mr. Martinez's challenges to the suppression
hearing procedure fail.
His remaining challenge is a contention that the search warrant affidavit did not
establish probable cause because it did not establish that the informant was credible. 7 We
disagree. First, the fact that the informant successfully set up the controlled buys
established both his veracity and the reliability of his information. Casto, 39 Wn. App. at
234-235. Second, most of the informant's information was corroborated by the officers
conducting surveillance of the controlled buys. Although much of that corroboration
enhanced the informant's reliability, it secondarily supported his credibility.
The affidavit describes three controlled buys connected to the defendant's
residence. 8 On the first occasion, the middleman went into the alley behind Mr.
Martinez's house and came back soon thereafter with cocaine. On the other two
occasions, the middleman went into Mr. Martinez's house and returned to the informant
with cocaine. Although the description of these three incidents could have been more
detailed, it was sufficient for the magistrate to find probable cause to believe cocaine was
being delivered from the Martinez residence. Three deliveries of cocaine were made to
the informant, under police surveillance, by a man who twice entered the residence and
7 To the extent that Mr. Martinez argues that probable cause to search his house was lacking because the middleman actually transferred the drugs outside of his residence, his argument fails under a very factually similar case, State v. Mejia, 111 Wn.2d 892, 901, 766 P.2d 454 (1989). 8 Only one of the counts filed against Mr. Martinez involved an incident described in the search warrant. The other delivery count was not connected to the house and the remaining count involved the cocaine found when the warrant was served.
No. 32406-I-III State v. Martinez
once went to the back alley of the residence before returning to the informant with
cocaine. A reasonable person could conclude that cocaine was being sold from the
residence.
Probable cause existed to issue the search warrant. The magistrate did not err by
approving the warrant. The trial court correctly denied the motion to suppress.
Affirmed.
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.
K1smo, J.
WE CONCUR: