Filed Washington State Court of Appeals Division Two
September 27, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 47902-8-II
Respondent,
v.
STEVEN LEROY HICKS, UNPUBLISHED OPINION
Appellant.
LEE, J. — Steven Leroy Hicks was charged with unlawful possession of ammonia with
intent to manufacture methamphetamine, unlawful possession of a controlled substance with intent
to deliver, and attempt to elude police. Hicks unsuccessfully sought to suppress evidence seized
from his vehicle, arguing that the search warrant lacked probable cause. Hicks sought
discretionary review of the trial court’s denial of his motion to suppress evidence, and we granted
discretionary review. Hicks also requests that we exercise our discretion to not impose appellate
costs if the State prevails because he is indigent.
We hold that Hicks’s argument fails because the affidavit supporting the request for search
warrant established a nexus between the criminal activity and the area to be searched, and
therefore, probable cause supported the search warrant. We also exercise our discretion to not
impose appellate costs on Hicks. Accordingly, we affirm. No. 47902-8-II
FACTS
On May 15, 2015, Officers Max Criss and Ryan Moody were on patrol when they noticed
a vehicle parked at an intersection. After a female got out of the vehicle, the vehicle drove off.
The officers did a routine registration check on the vehicle, which showed that the vehicle belonged
to Hicks. Hicks had a felony warrant for his arrest from the Department of Corrections (DOC) for
escaping supervision on a narcotics related offense.
The officers confirmed that Hicks was the driver of the vehicle and initiated a traffic stop.
Hicks pulled the vehicle over. As the officers approached the vehicle, Officer Moody observed a
red nylon bag on the front passenger seat. Hicks appeared nervous and kept his hand on the gear
shifter. Officer Criss asked Hicks twice to turn his vehicle off, but Hicks did not comply. Hicks
suddenly drove away from the officers, driving approximately 70 miles per hour through a
residential neighborhood.
The officers pursued Hicks, but temporarily lost sight of his vehicle. When the officers
caught up with Hicks’s vehicle a few minutes later, they found it unoccupied in some bushes near
Steilacoom Lake. The officers searched the area and eventually found Hicks in the lake clinging
to a dock. Officer Moody ordered Hicks to exit the lake numerous times. Hicks initially refused
to comply, but he eventually got out of the lake and was taken into custody.
2 No. 47902-8-II
While in custody, Officer Criss asked Hicks why he fled, and Hicks responded that he fled
because he knew he had an outstanding warrant. From outside the vehicle, Officer Criss saw a
Coke can on the floor of the driver’s seat. The Coke can had a false top that was open. Officer
Moody knew from his police experience that soda cans with false tops are frequently used to
conceal illegal contraband such as narcotics. Officer Moody noticed that the red nylon bag that
was on the passenger seat was missing. The officers checked the area, but they could not locate
it.
Officer Criss asked Hicks for consent to search the vehicle, but Hicks refused. The officers
then transported Hicks to Pierce County Jail, and another officer arrived on scene to help impound
Hicks’s vehicle.
Officer Moody applied for a warrant to search Hicks’s car for evidence of controlled
substances and narcotics paraphernalia. The affidavit of probable cause described the above facts.
The affidavit stated that based on “Hicks[’s] obvious narcotics history and his attempt to avoid
police capture,” the officers suspected there was illegal contraband in the vehicle. Clerk’s Papers
(CP) at 23. The affidavit also contained a summary of Officer Moody’s police experience as
support for his belief that Hicks’s car contained evidence of narcotics, which included hundreds
of arrests for possession of controlled substances, assignments to special operation units that deal
with street level drug dealers and users, and a total of nine years working as a police officer. A
judge signed the search warrant for Hicks’s vehicle.
3 No. 47902-8-II
Police searched Hicks’s vehicle pursuant to the search warrant. They discovered 2,000
pseudoephedrine pills, coffee filters, a cold compress, lithium batteries, a container of isopropyl
alcohol, and two mason jars in the trunk; the false-top Coke can contained a small baggie with a
crystalline substance.
The State charged Hicks with unlawful possession of ammonia with intent to manufacture
methamphetamine,1 unlawful possession of a controlled substance with intent to deliver,2 and
attempt to elude police.3 Hicks filed a motion to suppress evidence from the vehicle pursuant to
CrR 3.6. The trial court determined that probable cause supported the search warrant and denied
Hicks’s motion to suppress. Hicks sought discretionary review, which we granted. Ruling
Granting Review.
ANALYSIS
A. MOTION TO SUPPRESS
Hicks argues that the trial court erred in denying his motion to suppress the evidence found
in his car because the search warrant lacked probable cause. Specifically, Hicks argues that the
search warrant failed to establish a nexus between the alleged criminal activity and the place to be
searched. We disagree.
1 RCW 69.50.440(1). 2 RCW 69.50.401(1)(2)(b). 3 RCW 46.61.024 (1).
4 No. 47902-8-II
1. Legal Principles
Under the Fourth Amendment to the United States Constitution and article I, section 7 of
the Washington Constitution, probable cause must support a search warrant. State v. Myers, 117
Wn.2d 332, 337, 815 P.3d 761 (1991). The trial court’s conclusion that there was sufficient
probable cause is an issue we review de novo. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658
(2008). We review the same evidence that was available to the trial court, limited to the four
corners of the affidavit supporting probable cause. Id.
To establish probable cause, the affidavit supporting the search warrant must set “forth
facts and circumstances sufficient to establish a reasonable inference that the defendant is probably
involved in criminal activity and that evidence of the crime can be found at the place to be
searched.” State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). Thus, a nexus between the
criminal activity, the item to be seized, and the place to be searched must exist for there to be
probable cause to issue a search warrant. Neth, 165 Wn.2d at 183. The affidavit must establish
the probability of criminal activity, but it need not make a prima facie showing of criminal activity.
State v. Emery, 161 Wn. App. 172, 202, 253 P.3d 413 (2011), aff’d, 174 Wn.2d 741,
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Filed Washington State Court of Appeals Division Two
September 27, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 47902-8-II
Respondent,
v.
STEVEN LEROY HICKS, UNPUBLISHED OPINION
Appellant.
LEE, J. — Steven Leroy Hicks was charged with unlawful possession of ammonia with
intent to manufacture methamphetamine, unlawful possession of a controlled substance with intent
to deliver, and attempt to elude police. Hicks unsuccessfully sought to suppress evidence seized
from his vehicle, arguing that the search warrant lacked probable cause. Hicks sought
discretionary review of the trial court’s denial of his motion to suppress evidence, and we granted
discretionary review. Hicks also requests that we exercise our discretion to not impose appellate
costs if the State prevails because he is indigent.
We hold that Hicks’s argument fails because the affidavit supporting the request for search
warrant established a nexus between the criminal activity and the area to be searched, and
therefore, probable cause supported the search warrant. We also exercise our discretion to not
impose appellate costs on Hicks. Accordingly, we affirm. No. 47902-8-II
FACTS
On May 15, 2015, Officers Max Criss and Ryan Moody were on patrol when they noticed
a vehicle parked at an intersection. After a female got out of the vehicle, the vehicle drove off.
The officers did a routine registration check on the vehicle, which showed that the vehicle belonged
to Hicks. Hicks had a felony warrant for his arrest from the Department of Corrections (DOC) for
escaping supervision on a narcotics related offense.
The officers confirmed that Hicks was the driver of the vehicle and initiated a traffic stop.
Hicks pulled the vehicle over. As the officers approached the vehicle, Officer Moody observed a
red nylon bag on the front passenger seat. Hicks appeared nervous and kept his hand on the gear
shifter. Officer Criss asked Hicks twice to turn his vehicle off, but Hicks did not comply. Hicks
suddenly drove away from the officers, driving approximately 70 miles per hour through a
residential neighborhood.
The officers pursued Hicks, but temporarily lost sight of his vehicle. When the officers
caught up with Hicks’s vehicle a few minutes later, they found it unoccupied in some bushes near
Steilacoom Lake. The officers searched the area and eventually found Hicks in the lake clinging
to a dock. Officer Moody ordered Hicks to exit the lake numerous times. Hicks initially refused
to comply, but he eventually got out of the lake and was taken into custody.
2 No. 47902-8-II
While in custody, Officer Criss asked Hicks why he fled, and Hicks responded that he fled
because he knew he had an outstanding warrant. From outside the vehicle, Officer Criss saw a
Coke can on the floor of the driver’s seat. The Coke can had a false top that was open. Officer
Moody knew from his police experience that soda cans with false tops are frequently used to
conceal illegal contraband such as narcotics. Officer Moody noticed that the red nylon bag that
was on the passenger seat was missing. The officers checked the area, but they could not locate
it.
Officer Criss asked Hicks for consent to search the vehicle, but Hicks refused. The officers
then transported Hicks to Pierce County Jail, and another officer arrived on scene to help impound
Hicks’s vehicle.
Officer Moody applied for a warrant to search Hicks’s car for evidence of controlled
substances and narcotics paraphernalia. The affidavit of probable cause described the above facts.
The affidavit stated that based on “Hicks[’s] obvious narcotics history and his attempt to avoid
police capture,” the officers suspected there was illegal contraband in the vehicle. Clerk’s Papers
(CP) at 23. The affidavit also contained a summary of Officer Moody’s police experience as
support for his belief that Hicks’s car contained evidence of narcotics, which included hundreds
of arrests for possession of controlled substances, assignments to special operation units that deal
with street level drug dealers and users, and a total of nine years working as a police officer. A
judge signed the search warrant for Hicks’s vehicle.
3 No. 47902-8-II
Police searched Hicks’s vehicle pursuant to the search warrant. They discovered 2,000
pseudoephedrine pills, coffee filters, a cold compress, lithium batteries, a container of isopropyl
alcohol, and two mason jars in the trunk; the false-top Coke can contained a small baggie with a
crystalline substance.
The State charged Hicks with unlawful possession of ammonia with intent to manufacture
methamphetamine,1 unlawful possession of a controlled substance with intent to deliver,2 and
attempt to elude police.3 Hicks filed a motion to suppress evidence from the vehicle pursuant to
CrR 3.6. The trial court determined that probable cause supported the search warrant and denied
Hicks’s motion to suppress. Hicks sought discretionary review, which we granted. Ruling
Granting Review.
ANALYSIS
A. MOTION TO SUPPRESS
Hicks argues that the trial court erred in denying his motion to suppress the evidence found
in his car because the search warrant lacked probable cause. Specifically, Hicks argues that the
search warrant failed to establish a nexus between the alleged criminal activity and the place to be
searched. We disagree.
1 RCW 69.50.440(1). 2 RCW 69.50.401(1)(2)(b). 3 RCW 46.61.024 (1).
4 No. 47902-8-II
1. Legal Principles
Under the Fourth Amendment to the United States Constitution and article I, section 7 of
the Washington Constitution, probable cause must support a search warrant. State v. Myers, 117
Wn.2d 332, 337, 815 P.3d 761 (1991). The trial court’s conclusion that there was sufficient
probable cause is an issue we review de novo. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658
(2008). We review the same evidence that was available to the trial court, limited to the four
corners of the affidavit supporting probable cause. Id.
To establish probable cause, the affidavit supporting the search warrant must set “forth
facts and circumstances sufficient to establish a reasonable inference that the defendant is probably
involved in criminal activity and that evidence of the crime can be found at the place to be
searched.” State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). Thus, a nexus between the
criminal activity, the item to be seized, and the place to be searched must exist for there to be
probable cause to issue a search warrant. Neth, 165 Wn.2d at 183. The affidavit must establish
the probability of criminal activity, but it need not make a prima facie showing of criminal activity.
State v. Emery, 161 Wn. App. 172, 202, 253 P.3d 413 (2011), aff’d, 174 Wn.2d 741, 278 P.3d 653
(2012). Generalized statements in an affidavit, when standing alone, do not establish sufficient
probable cause. Thein, 138 Wn.2d at 148-49.
2. Nexus between Criminal Activity and the Vehicle
Hicks argues that the affidavit supporting the search warrant failed to establish a nexus
between the property searched and the alleged criminal activity. Because the facts and
circumstances presented in the affidavit for search warrant established a reasonable inference that
5 No. 47902-8-II
Hicks was probably involved in the criminal activity alleged and that evidence of that alleged
criminal activity could be found inside Hicks’s vehicle, we hold that Hicks’s argument fails.
Hicks contends that it was not reasonable to rely on his prior arrests and convictions to
conclude that he was presently engaged in a crime. Hicks’s DOC warrant was for escaping
community custody, not for the underlying narcotics related offense that gave rise to community
custody. A defendant’s prior criminal history, by itself, does not create a reasonable inference to
support a search. State v. Maddox, 152 Wn.2d 499, 512, 98 P.3d 1199 (2004); State v. Hobart, 94
Wn.2d 437, 446-47, 617 P.2d 429 (1980). However, a similar narcotics related history of offenses
may be considered in determining probable cause when other supporting evidence is present. See
Neth, 165 Wn.2d at 185-86 (concluding that a history of similar crimes cannot establish probable
cause without other supporting evidence). Here, Hicks’s prior arrests and convictions were not
the sole factor used to support the conclusion that Hicks was presently engaged in a crime.
The affidavit stated that the officers pulled Hicks over because he had a felony warrant for
escape from community custody on a narcotics related offense. Hicks appeared nervous during
the traffic stop and refused to comply with Officer Criss’s orders to turn off his vehicle. Hicks
fled from police, abandoned his vehicle in some bushes, and jumped into a lake. The officers saw
a Coke can with its fake top open inside the vehicle Hicks fled from and the red nylon bag that had
been in the vehicle during the traffic stop was gone. Taking the facts presented in the affidavit as
6 No. 47902-8-II
a whole, along with Officer Moody’s experience in investigating controlled substance crimes, a
reasonable inference can be made that evidence of unlawful possession of a controlled substance
would likely be found inside the vehicle.
Reviewing the facts in the affidavit de novo, we hold that the trial court did not err in
finding sufficient probable cause to issue a search warrant for Hicks’s vehicle. The facts in the
affidavit, when taken as a whole, established a nexus between the alleged criminal activity, the
item to be seized, and place to be searched.
B. APPELLATE COSTS
Hicks requests that if the State prevails, then this court should decline to impose appellate
costs against him because he claims he is indigent. We exercise our discretion to decline to impose
appellate costs.
RCW 10.73.160(1) vests the appellate court with discretion to award appellate costs.
Under RAP 14.2, that discretion may be exercised in a decision terminating review. State v. Nolan,
141 Wn.2d 620, 626, 8 P.3d 300 (2000); State v. Sinclair, 192 Wn. App. 380, 388, 367 P.3d 612,
review denied, 185 Wn.2d 1034 (2016). Ability to pay is an important factor in the exercise of
that discretion, although it is not the only relevant factor. Sinclair, 192 Wn. App. at 389.
The trial court found that Hicks was indigent. We presume a party remains indigent
“throughout the review” unless the trial court finds otherwise. RAP 15.2(f). Thus, we exercise
our discretion and hold that an award of appellate costs to the State is not appropriate.
7 No. 47902-8-II
We 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.
Lee, J. We concur:
Johanson, J.
Bjorgen, C.J.