State of Washington v. Kevin Ray Edgar

• Court: Court of Appeals of Washington
• Decided: April 21, 2016
• Docket: 33778-2
• Status: Unpublished

Opinion

FILED April 21, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

STATE OF WASHINGTON, ) No. 33778-2-111 ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) KEVIN RAY EDGAR, ) ) Appellant. )

LAWRENCE-BERREY, A.C.J. - Kevin Ray Edgar appeals his conviction for

vehicular assault. He claims the trial court erred in concluding that the affidavit in

support of a warrant sufficiently established the reliability of an unnamed witness. We

affirm.

FACTS

On the evening of January 10, 2015, a witness reported seeing Kevin Ray Edgar

driving between 80 and 90 m.p.h. in a 55 m.p.h. zone before being involved in a single

car accident. The first police officer to arrive at the scene of the collision observed that

Mr. Edgar's car left the roadway and landed on its passenger side. Mr. Edgar and the

passenger were transported to a hospital. No. 33778-2-III State v. Edgar

Trooper Charles Ferrell, a drug recognition expert, contacted Mr. Edgar at the

hospital. The trooper could smell an odor of intoxicants coming from Mr. Edgar. Mr.

Edgar was uncooperative and belligerent with Trooper Ferrell. Trooper Ferrell compiled

an affidavit in support of a warrant to obtain a blood sample from Mr. Edgar to test for

evidence of intoxication. The affidavit provided in part:

According to Trooper B. Pilkington #1202 who is at the scene of the collision, Mr. Edgar's vehicle left the roadway to the north where it drove up an embankment before becoming airborne. The vehicle rolled coming to rest on the north shoulder. The vehicle was on its passenger side facing east.

Witness stopped at the scene and pulled both parties from the vehicle. Witness advised female passenger and male driver. Witness advised female passenger was yelling at male for driving too fast, being drunk and high, and almost killing her.

Trooper Pilkington was the first Trooper to arrive on the scene and contacted Mr. Edgar and the passenger. Trooper Pilkington advised Mr. Edgar was belligerent and had an overwhelming odor of alcohol coming from his person. Trooper Pilkington advised Mr. Edgar's speech was slurred. Due to injuries, Trooper Pilkington was unable to perform any standardized field sobriety tests with Mr. Edgar.

Clerk's Papers at 22.

The trial court issued the warrant. Mr. Edgar filed a motion to suppress the

blood test evidence, arguing the affidavit in support of the warrant failed to

establish the reliability of the unnamed witness. The trial court denied the motion.

2 No. 33778-2-111 State v. Edgar

ANALYSIS

When reviewing the denial of a motion to suppress, we determine whether

substantial evidence supports the trial court's findings and, in tum, whether those findings

support the conclusions of law. Mr. Edgar does not assign error to the trial court's

findings, which we therefore treat as verities on appeal. State v. Ross, 141 Wn.2d 304,

309, 4 P.3d 130 (2000).

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. Huft, 106 Wn.2d 206, 209, 720 P.2d 838 (1986).

The affidavit must be tested in a commonsense fashion rather than hypertechnically.

State v. Jackson, 150 Wn.2d 251, 265, 76 P.3d 217 (2003). The existence of probable

cause is a legal question that a reviewing court reviews de nova. State v. Chamberlin,

161 Wn.2d 30, 40, 162 P.3d 389 (2007). However, we afford great deference to the

issuing magistrate's determination of probable cause. State v. Cord, 103 Wn.2d 361, 366,

693 P.2d 81 (1985).

We apply the two-pronged Aguilar-Spinelli test to assess the adequacy of a search

warrant affidavit. State v. Jackson, 102 Wn.2d 432, 446, 688 P.2d 136 (1984); Spinelli v.

United States, 393 U.S. 410, 415-16, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v.

3 No. 33778-2-III State v. Edgar

Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). Probable cause based

on an informant's information requires that an affidavit establish both the informant's

reliability and basis of knowledge. Jackson, 102 Wn.2d at 445; State v. Smith, 110 Wn.2d

658, 664, 756 P.2d 722 (1988). Where one or both of these factors is weak, independent

police investigation can supply corroboration. Jackson, 102 Wn.2d at 445. An unnamed

citizen informant is considered reliable if the record establishes that the information is

credible and the informant is without motive to falsify. State v. Cole, 128 Wn.2d 262,

287-88, 906 P.2d 925 (1995).

Mr. Edgar argues that the superior court erred in determining that the affidavit

provided sufficient facts to determine the reliability of the unnamed witness. We

disagree.

When dealing with unnamed citizen informants, courts are concerned with whether

the informant is an "anonymous troublemaker" or a helpful citizen who wishes to retain

his or her privacy. State v. Ibarra, 61 Wn. App. 695, 699-700, 812 P.2d 114 (1991). To

guard against anonymous troublemaking, the affiant must provide enough additional

information to support an inference that the informant is telling the truth. Id. at 700.

4 No. 33778-2-III State v. Edgar

Nothing in this case suggests anonymous troublemaking. Here, the record

confirms that the unnamed witness was simply a concerned citizen with no motive to

fabricate. The witness reported the collision to dispatch, remained at the scene, removed

Mr. Edgar and the injured passenger from the cars, and stayed to provide a statement to

law enforcement. Trooper Ferrell's failure to state the witness's name in the affidavit

appears to be an oversight, rather than based on the witness's desire to remain

anonymous. In fact, the trial court concluded that Trooper Ferrell's failure to name the

witness in the affidavit did not render the witness anonymous because the witness was

identified by law enforcement and present during Trooper Pilkington's investigation.

However, even ifwe depart from the trial court's analysis and treat the witness as

anonymous, there was sufficient evidence in the affidavit to establish the witness's

reliability. The citizen came forth voluntarily, received no benefit from providing

information, and the police investigation corroborated the witness's information. Giving

deference to the trial court's determination, the affidavit contains sufficient facts to

support a reasonable inference that the witness was credible and without motive to falsify.

5 No. 33778-2-111 State v. Edgar

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.

Lawrence-Berrey, A.C.J. j WE CONCUR:

d?dhw.~,ft· Siddoway, J.

j Pennell, J.