State v. Jacobs

121 Wash. App. 669
Court of Appeals of Washington·Decided March 23, 2004·No. Nos. 28384-1-II; 28419-7-II·Published·Cited by 10 cases

Opinion

Houghton, J.

In this consolidated appeal, James Jacobs and Kathy Austin-Bocanegra argue that their jury convictions of unlawfully manufacturing a controlled substance should be reversed based on insufficient evidence. They also argue evidentiary and sentencing errors, ineffective assistance of counsel, and judicial and prosecutorial misconduct. We affirm.

[673] FACTS

In the early hours of March 21, 2001, Jennifer Hand spoke to Deputy Westby at the Thurston County Sheriff’s Office. Hand managed an Olympia mobile home park and had received numerous complaints from tenants that a chemical odor emanated from space 7. Jacobs and Austin-Bocanegra lived in space 7 with their three-month-old child. Hand also told Westby that she had personally smelled the chemical odor and that a mutual friend told her that Jacobs and Austin-Bocanegra were “cooking meth.” Austin-Bocanegra Clerk’s Papers (CP) at 26.

On the morning of March 22, two sheriff’s deputies investigated Hand’s complaint. Lieutenant Brad Watkins, a detective, and Deputy Steve Hamilton, a uniformed officer, went to the mobile home park. Both deputies knew that Austin-Bocanegra had an outstanding Thurston County misdemeanor arrest warrant.

As they approached the house, the deputies detected chemical odors that they “associated with the production of Methamphetamine.” CP at 18. When Jacobs answered the door, he told the deputies that he lived in the mobile home. The deputies advised him that they were investigating a tip that his home was a suspected methamphetamine lab. Jacobs denied manufacturing methamphetamine.

The deputies also told Jacobs that they sought Austin-Bocanegra because she had an outstanding misdemeanor warrant. Jacobs told the deputies that Austin-Bocanegra was not home, but that their child was asleep inside.

The deputies thought Jacobs appeared to be under the influence of methamphetamine. On his own, Jacobs admitted that he used methamphetamine, including the night before. He also admitted to having liquid chemicals outside his house, some of which he deposited in a nearby dumpster. According to the deputies, the odor from the dumpster was similar to the odor wafting from the home. Jacobs told the deputies that “someone” left the chemicals [674] at his house but that he did not know what the chemicals were. CP at 21.

Based on their conversation, Hamilton decided to detain Jacobs. The deputy could clearly see a weapon-sized suspicious bulge in Jacobs’ front pants pocket although Jacobs denied having anything in his pockets. The bulge appeared to be consistent with the cylinder of a revolver or a bullet magazine.

In lieu of a safety search, the deputies asked Jacobs to turn out his front pants pockets. When Jacobs took a knife out of his pocket, a clear film canister fell to the ground, rolling near the deputy’s foot. Hamilton picked up the canister and noticed white powder; it later field tested positive for methamphetamine. Hamilton then advised Jacobs of his Miranda1 rights and placed him under arrest for unlawfully possessing a controlled substance.

Hamilton and Watkins continued to believe that Austin-Bocanegra and her infant were in the mobile home, even though Jacobs denied it. After asking the Thurston County Narcotics Task Force (TNT) to respond and secure the scene, Watkins called into the home for Austin-Bocanegra to come out. She appeared at the door of the mobile home holding the baby.

Hamilton told Austin-Bocanegra that she was under arrest on her outstanding warrant and advised her of her Miranda rights. Austin-Bocanegra said that she understood her rights and then she waived them.

The deputies also thought Austin-Bocanegra appeared to be under the influence of methamphetamine. In response to Hamilton’s questioning, she told him she last used methamphetamine four days before. But she denied living in the mobile home or knowing anything about a methamphetamine manufacturing lab.

At 12:35 p.m. the same day, Ben Elkins, a TNT detective, applied for a search warrant. In his affidavit, he averred that he was “looking for ... a possible methamphetamine [675] lab located within” Austin-Bocanegra and Jacobs’ mobile home. CP at 25. And because of his “training and experience from going to other . . . labs” and his education in clandestine laboratory operations, he felt confident that the mobile home harbored a methamphetamine manufacturing lab. CP at 29. Elkins based his probable cause affidavit on his personal investigation of the site, his conversation with Jacobs, and the information Watkins, Hamilton, and Hand provided.

Based on the affidavit, a magistrate determined that there was probable cause to issue a search warrant. During the later search, some of the items seized included red stained coffee filters, a plastic gram scale with white residue, Red Devil lye, over-the-counter cold pills and tablets, and an air purifying respirator.

The State charged Jacobs and Austin-Bocanegra as co-defendants with unlawful manufacture of a controlled substance in violation of RCW 69.50.401(a)(1)(ii), .435(a)(3), and RCW 9.94A.605 (formerly RCW 9.94A.128 (2001) (count I), and criminal mistreatment in the second degree in violation of RCW 9A.42.030 (count II).

After trial, the jury found Jacobs and Austin-Bocanegra guilty of count I, but not of count II. The jury also returned special verdicts, finding Jacobs and Austin-Bocanegra guilty of (1) manufacturing methamphetamine where a person under the age of eighteen is on the premises and (2) manufacturing a controlled substance within 1,000 feet of a school bus stop.

ANALYSIS

Motion to Suppress

Jacobs and Austin-Bocanegra first contend that the trial court erred in denying their motions to suppress. They assert that Elkins’ affidavit did not provide sufficient probable cause to issue the mobile home search warrant and, [676] therefore, the trial court should have suppressed all evidence seized during the search.

Specifically, Jacobs and Austin-Bocanegra assert that the affidavit did not set forth a sufficient factual basis to rely on the informant’s information that they were manufacturing methamphetamine. And they argue that the affidavit failed to identify Lieutenant Watkins’ and Deputy Hamilton’s education and experience in identifying unlawful controlled substance odors.

We review a motion to suppress by determining whether substantial evidence exists to support the trial court’s findings and then whether those findings in turn support the trial court’s conclusions of law. State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001), review denied, 145 Wn.2d 1016 (2002). We consider unchallenged findings as verities on appeal. Ross, 106 Wn. App. at 880.

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State v. Jacobs, 121 Wash. App. 669 (Wash. Ct. App. 2004).

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