State v. O'NEIL

879 P.2d 950, 74 Wash. App. 820
CourtCourt of Appeals of Washington
DecidedSeptember 15, 1994
Docket33240-6-I; 33241-4-I
StatusPublished
Cited by16 cases

This text of 879 P.2d 950 (State v. O'NEIL) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. O'NEIL, 879 P.2d 950, 74 Wash. App. 820 (Wash. Ct. App. 1994).

Opinions

Webster, C. J.

The State appeals the suppression of evidence and termination of charges of possession with intent to manufacture or deliver marijuana and conspiracy to commit a violation of the uniform controlled substances act (VUCSA) against Regan W. Hagar and Leigh Anne Bryan. It claims the court erred in finding insufficient connection between Codefendant Thomas O’Neil and the house searched.

Facts

Seattle police executed a search warrant at 7222 Palatine Avenue North; they discovered 40 mature marijuana plants, valued at approximately $80,000, and 30 pounds of marijuana shake, valued at $12,000. They also discovered paraphernalia associated with manufacturing marijuana, business records, and documents of dominion and control connecting O’Neil, Hagar and Bryan to the grow operation.

The search warrant authorized the police to search for evidence, contraband and the fruits of criminal activity at a number of locations associated with Thomas O’Neil: four houses, two businesses, one vehicle, and a storage unit. Hagar and Bryan brought a motion to dismiss; after briefing and argument the court concluded that the affidavit supporting the application for the search warrant failed to establish probable cause that Codefendant O’Neil was living or storing records at the Palatine residence. The court denied the State’s reconsideration motion, issued written findings of fact and conclusions of law, and the order to suppress. The court entered an order terminating counts 3 (VUCSA) and 5 (defrauding a public utility) and stayed the [823]*823trial of the remaining conspiracy charge (count 4) pending this appeal. RAP 2.2(b)(2).1

Discussion

The State claims the court improperly concluded that there was insufficient probable cause to support issuance of the search warrant. It does not dispute the written findings of fact, but assigns error to the court’s legal conclusion that "[p]robable cause to authorize a search warrant for the Palatine address requires a finding of substantial evidence in the underlying affidavit that O’Neil was living at the Palatine address”. It argues that the search warrant affidavit was sufficient for a reasonable inference that O’Neil resided at the Palatine address and the magistrate’s probable cause determination should have been accorded great deference.2 Bryan and Hagar claim the State has improperly assigned error to oral comments made by the court (assignments of error 2-7) alleging they are not proper assignments of error as required by RAP 10.3(g).3 However, in reviewing the validity of a search warrant

[t]he trial court does not resolve factual conflicts but, like this court, simply determines as a matter of law whether probable cause has been established. Unless the trial court considers other matters such as whether false statements were made intentionally or in reckless disregard of the truth in support of the warrant, as in Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978) or material omissions of fact as in United States v. Martin, 615 F.2d 318 (5th Cir. 1980), the trial court’s findings are superfluous.

State v. Estorga, 60 Wn. App. 298, 304 n.3, 803 P.2d 813, review denied, 116 Wn.2d 1027 (1991). In concluding that [824]*824the warrant affidavit was insufficient to establish probable cause the dissent cites facts which are not in the affidavit. Finding of fact 9. Material omissions in the affidavit in support of a search warrant do not invalidate the warrant if the affidavit as submitted establishes probable cause to search and the omission was not made either intentionally or with reckless disregard for the truth. State v. Cord, 103 Wn.2d 361, 368-69, 693 P.2d 81 (1985); State v. Garrison, 118 Wn.2d 870, 872, 827 P.2d 1388 (1992) (the Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978) test for material misrepresentations applies to allegations of material omissions). Here, the court did not hold a Franks hearing and did not consider the alleged material omissions from the warrant affidavit. Thus, although we are aware of the dissent, in our analysis we consider only the affidavit on its face.

We consider whether the affidavit on its face contained sufficient facts for a finding of probable cause. Issuance of a search warrant is a matter of judicial discretion, and reviewing courts give great deference to the magistrate’s determination of probable cause, reviewing that determination only for an abuse of that discretion. State v. Seagull, 95 Wn.2d 898, 907, 632 P.2d 44 (1981). We resolve doubts by according preference to the validity of the warrant. State v. Chasengnou, 43 Wn. App. 379, 387, 717 P.2d 288 (1986).

"An affidavit is sufficient to establish probable cause for a search if it contains facts from which an ordinary, prudent person would conclude that a crime had occurred and evidence of the crime could be found at the location to be searched.” State v. Stone, 56 Wn. App. 153, 158, 782 P.2d 1093 (1989), review denied, 114 Wn.2d 1013 (1990). Even when there is probable cause to believe that a person has committed a crime, it does not automatically follow that there is probable cause to search his or her house for evidence of that crime. United States v. Freeman, 685 F.2d 942, 949, reh’g denied, 689 F.2d 190 (5th Cir. 1982). "[F]acts must exist in the affidavit which establish a nexus between the house to be searched and the evidence sought. . . . [T]hat [825]*825nexus may be established either through direct observation or through normal inferences as to where the articles sought would be located.” Freeman, 685 F.2d at 949.

[A] warrant may be upheld when the nexus between the items to be seized and the place to be searched rests not upon direct observation, but on the type of crime, nature of the items, and normal inferences where a criminal would likely hide contraband.

State v. Gross, 57 Wn. App. 549, 554, 789 P.2d 317 (quoting United States v. Dubrofsky, 581 F.2d 208, 213 (9th Cir. 1978) (affidavit was sufficient to establish probable cause because it is likely that heroin importers have contraband and related paraphernalia where they live, even though no contraband or paraphernalia was directly connected to defendant’s home)), review denied, 115 Wn.2d 1014 (1990).

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State v. O'NEIL
879 P.2d 950 (Court of Appeals of Washington, 1994)

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Bluebook (online)
879 P.2d 950, 74 Wash. App. 820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-oneil-washctapp-1994.