State of Washington v. Casey J. Lynn Dunn ( 2015 )

FILED
APRIL 9, 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. 32029-4-III
) (consolidated with
Appellant, ) No. 32030-8-III)
)
v. )
)
CASEY J. LYNN DUNN, )
)
Respondent. ) PUBLISHED OPINION
STATE OF WASHINGTON, )
)
Appellant, )
)
v. )
)
STEVEN RAY LONG, )
)
Respondent. )
LAWRENCE-BERREY, J. - Witnesses saw Steven Long driving a pickup truck on
Hogeye Hollow Road in Columbia County. In the bed of the truck was an ATVI with
camouflage packs. The next day, after the same truck was found abandoned, a property
owner reported that truck, an ATV with camouflage packs, and several other large items
of personal property missing. Based on these facts, a judge issued a warrant to search for
1 An ATV is a commonly used acronym for all terrain vehicle.
No. 32029-4-111; No. 32030-8-111
State v. Dunn; State v. Long
the missing items at Mr. Long's home and adjacent buildings located on Hogeye Hollow
Road. The search uncovered stolen property and controlled substances. Mr. Long and his
roommate Casey Dunn were charged with various offenses. Both defendants moved to
suppress the evidence gathered in the search. The trial court granted the motions,
concluding that the affidavit in support of the warrant failed to establish a reasonable
nexus between the missing items and Mr. Long's residence. The State moved for
findings that the cases could not proceed based upon the suppression orders, and the court
entered such findings. The State appealed, and we consolidated both cases. We conclude
that there was a reasonable nexus between the missing items and Mr. Long's residence to
support the warrant. We therefore vacate the suppression orders and the orders of
dismissaL
FACTS
Undersheriff Lee Brown investigated the circumstances surrounding an abandoned
vehicle found on Ring Canyon Road in Columbia County. After his investigation, he set
forth the following facts in his application for a search warrant.
On May 3, 2013, Undersheriff Brown was dispatched to investigate an abandoned
vehicle in a ditch on Steve Shoun's property on Ring Canyon Road. While en route to the
field, he called Mr. Shoun. Mr. Shoun said that he observed the same pickup truck on
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No. 32029-4-III; No. 32030-8-II1
State v. Dunn; State v. Long
Hogeye Hollow Road the day prior when it almost ran his hired hand off the road. Mr.
Shoun said that he saw Steven Long driving the pickup truck and that Mr. Long waved to
him. Mr. Shoun also said that there was an ATV with camouflage packs in the bed of the
pickup truck.
When Undersheriff Brown arrived at the scene, he observed a Dodge Ram pickup
truck with a gray bed and a brown cab. The pickup truck was in the ditch with the rear of
the truck sticking out. The ATV seen the previous day was no longer in the truck.
Undersheriff Brown then called Mr. Shoun and asked him to come and verifY that the
pickup truck was the same one that he observed Mr. Long driving the previous day. Mr.
Shoun and his hired hand arrived at the scene and verified that they both observed Mr.
Long driving the same pickup truck. Mr. Long was employed by Mr. Shoun in 2010, and
the hired hand had known Mr. Long for six or seven years. The truck was registered to
Zackary Zink of Dayton. The vehicle was towed and placed in a storage yard.
At around 1:00 p.m., Undersheriff Brown met and spoke with Mr. Zink in the
foyer of the sheriffs office. Mr. Zink said that the Dodge pickup truck in the storage
yard belonged to him and had been at his property located at 628 Robinette Mountain
Road. According to Mr. Zink, he last saw the pickup truck on Tuesday, April 30, 2013.
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No. 32029-4-III; No. 32030-8-III
State v. Dunn; State v. Long
Mr. link told Undersheriff Brown that he was going to his property to see ifhis cabin had
been entered.
Around 3:30 p.m., Undersheriff Brown responded to a burglary at Mr. link's
cabin on Robinette Mountain Road. When Undersheriff Brown arrived, Mr. link said
that the back door was kicked in and the outbuildings had been entered. Mr. link also
reported a shoe print on the door. Undersheriff Brown observed that the door was kicked
m. He also dusted for latent prints, but found none.
Mr. link reported that property was missing from the cabin, including both his
ATVs, his generators, and a rifle. Undersheriff Brown was advised that one of the ATVs
had tannish colored camouflage packs on the back of it, which matched the description of
the ATV seen by Mr. Shoun in the back of the pickup truck. Mr. link provided a list of
missing property with serial numbers or other identitying characteristics.
In the affidavit, Undersheriff Brown listed the missing property reported by Mr.
link. The property list included two A TV s, three generators, one rifle, two chainsaws,
one box of movies, three pairs of binoculars, a tree planter, an alcoholic drink dispenser,
and an air compressor.
Also in the affidavit, Undersheriff Brown listed the premises to be searched as a
single family manufactured home, garage, and wooden bam at 447 Hogeye Hollow Road
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No. 32029-4-111; No. 32030-8-111
State v. Dunn; State v. Long
in Columbia County. He described the buildings as approximately .1 mile from the
intersection of Lower Hogeye Road and Hogeye Hollow Road. He described the
premises as the residence of Steven Long.
Based on the above facts, a judge granted the search warrant. During a search of
Mr. Long's home, officers found several items that Mr. Zink reported missing. Officers
also found methamphetamine. Mr. Long was charged with second degree burglary, two
counts of second degree theft, two counts of third degree malicious mischief, one count of
residential burglary, three counts of second degree possession of a stolen vehicle, three
counts of possession of a stolen vehicle, two counts of possession of stolen property, theft
of a firearm, possession of methamphetamine, and manufacture of marijuana. Ms. Dunn,
who lived at the home with Mr. Long, was charged with possession of methamphetamine,
manufacture of marijuana, and second degree possession of stolen property.
Both Mr. Long and Ms. Dunn moved to suppress the evidence found in the search.
The defendants argued that the warrant was not supported by probable cause because the
affidavit failed to establish a reasonable nexus between the criminal activity and the place
to be searched.
The trial court granted the defendants' motions. The court concluded that the
search warrant did not set forth sufficient facts to support a reasonable nexus between Mr.
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No. 32029-4-III; No. 32030-8-III
State v. Dunn; State v. Long
Long's residence and the items sought in the search warrant; and, without a reasonable
nexus, probable cause did not exist. The court therefore concluded that the warrant was
not valid and suppressed all evidence gathered as a result of the warrant. The court
entered findings, at the State's request, that the cases could not proceed without the
evidence, and dismissed the cases without prejudice. The State appeals, contending that
the trial court erred in suppressing the evidence, and requests vacation of the orders of
dismissal.
ANALYSIS
The sole issue presented is whether there was a reasonable nexus between Mr.
Long's home, garage, and bam and the items sought to be located so to support the search
warrant.
A search warrant may only be issued upon a determination of probable cause.
State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). Probable cause exists as a
matter of law if the affidavit supporting the search warrant contains sufficient facts and
circumstances to establish a reasonable inference that the defendant participated in
criminal activity and that evidence of the crime is at a certain location. State v. Thein,
138 Wn.2d 133,140,977 P.2d 582 (1999).
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No. 32029-4-III; No. 32030-8-II1
State v. Dunn; State v. Long
" , [P]robable cause requires a nexus between criminal activity and the item to be
seized, and also a nexus between the item to be seized and the place to be searched.'" Id.(quoting State v. Goble, 88 Wn. App. 503, 509,945 P.2d 263 (1997». A nexus must be
established by specific facts. Thein, 138 Wn.2d at 145. "Absent a sufficient basis in fact
from which to conclude evidence of illegal activity will likely be found at the place to be
searched, a reasonable nexus is not established as a matter oflaw." Id. at 147.
Generally, we review the validity of a search warrant for an abuse of discretion,
giving great deference to the issuing judge. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d
658 (2008). However, when a trial court assesses a search warrant affidavit for probable
cause at a suppression hearing, we review the trial court's conclusion on suppression de
novo. Id.Using de novo review, we determine whether the qualifying information as a
whole amounts to probable cause. State v. Emery, 161 Wn. App. 172,202,253 P.3d 413(2011) (quoting In re Det. ofPetersen, 145 Wn.2d 789, 800, 42 P.3d 952 (2002», aff'd,
174 Wn.2d 741, 278 P.3d 653 (2012). We consider only the information that was
available to the issuing judge. State v. Olson, 73 Wn. App. 348, 354, 869 P .2d 110
(1994). '" It is only the probability of criminal activity, not a prima facie showing of it,
that governs probable cause. The [issuing judge] is entitled to make reasonable
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No. 32029-4-III; No. 32030-8-III
State v. Dunn; State v. Long
inferences from the facts and circumstances set out in the affidavit.'" Emery, 161 Wn.
App. at 202 (alteration in original) (quoting State v. Maddox, 152 Wn.2d 499, 505,98
PJd 1199 (2004)).
The existence of probable cause is to be evaluated on a case-by-case basis. Thein,
138 Wn.2d at 149. Facts that would not support probable cause when standing alone can
support probable cause when viewed together with other facts. State v. Garcia, 63 Wn.
App. 868, 875, 824 P.2d 1220 (1992). The application for a search warrant must be
judged in the light of common sense, resolving all doubts in favor of the warrant. State v.
Partin, 88 Wn.2d 899, 904, 567 P.2d 1136 (1977).
Despite the deference given to the issuing judge, our precedent requires that
probable cause be based on more than conclusory predictions. Thein, 138 Wn.2d at 147.
Blanket inferences and generalities cannot be a substitute for the required showing of
"reasonably specific 'underlying circumstances' that establish evidence of illegal activity
will likely be found in the place to be searched in any particular case." Thein, 138 Wn.2d
at 147-48. Probable cause to believe a person has committed a crime does not necessarily
give rise to probable cause to search that person's home. /d. at 148 (quoting State v.
Dalton, 73 Wn. App. 132, 140,868 P.2d 873 (1994)).
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No. 32029~4~III; No. 32030~8~III
State v. Dunn; State v. Long
Nonetheless, it may be proper to infer that stolen property is at a perpetrator's
residence, especially if the property is bulky, and if the perpetrator had an opportunity to
return home before his apprehension by police. WAYNE R. LAFAVE, SEARCH AND
SEIZURE § 3.7(d), at 381~84 (3d ed. 1996) (cited in State v. McReynolds, 104 Wn. App.
560,570, 17 P.3d 608 (2000)). "Judges looking for probable cause in an affidavit may
draw reasonable inferences about where evidence is likely to be kept, including nearby
land and buildings under the defendant's control." State v. Gebaroff, 87 Wn. App. 11, 16,
939 P.2d 706 (1997).
In Thein, police officers obtained a search warrant for the defendant's residence
based on their generalized conclusion that drug dealers commonly keep evidence of their
illegal drug dealings in their homes. Thein, 138 Wn.2d at 138~40. The Supreme Court
held that generalized statements in affidavits supporting a search warrant are insufficient,
standing alone, to establish the probable cause needed to search a suspected drug dealer's
residence. Id. at 148. "Although common sense and experience infonn the inferences
reasonably to be drawn from the facts, broad generalizations do not alone establish
probable cause." Id. at 148~49.
In McReynolds, our court addressed the boundaries of Thein. We recognized that
inferences considered improper for drug crimes may be appropriate fo~ crimes of theft,
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No. 32029-4-III; No. 32030-8-III
State v. Dunn; State v. Long
burglary, or robbery based on the nature of these offenses. McReynolds, 104 Wn. App. at
569-70. In support, we quoted LeFave's Search and Seizure treatise, also cited in Thein,
stating,
Perhaps because stolen property is not inherently incriminating in the
same way as narcotics and because it is usually not as readily
concealable in other possible hiding places as a small stash of drugs,
courts have been more willing to assume that such property will be
found at the residence of the thief, burglar, or robber. It is
commonly said that in such circumstances account may be taken of
the 'type of crime, the nature of the missing items, the extent of the
suspect's opportunity for concealment, and normal inferences as to
where a criminal would be likely to hide stolen property.' It is most
relevant, therefore, that the objects are 'the sort of materials that one
would expect to be hidden at [the offender's] place of residence,
both because of their value and bulk,' and also that the offender 'had
ample opportunity to make a trip home to hide' the stolen property
before his apprehension.
McReynolds, 104 Wn. App. at 569-70 (alteration in original) (quoting LEFAVE, supra).
Thus, instead of expanding the Thein ruling to limit inferences made in nondrug offenses,
the McReynolds court suggested a more limited reading of Thein. McReynolds, 104 Wn.
App. at 570. We construed Thein to require a careful examination of the officer's
affidavit, and the specific facts and circumstances therein, to determine whether it
establishes a reasonable inference that evidence of criminal activity could be found at the
place to be searched. Id.
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No. 32029-4-111; No. 32030-8-111
State v. Dunn,' State v, Long
Here, the defendants argue that the facts in the affidavit do not establish a
reasonable nexus between the items sought and Mr. Long's residence. We disagree.
After reviewing the affidavit in its entirety, including Undersheriff Brown's account of
the circumstances, the description of the premises to be searched, and the list of items to
be seized, we conclude that the affidavit contains specific facts to establish a reasonable
nexus between the items to be seized and the place to be searched.
Based on the facts and circumstances presented in the affidavit, it was reasonable
to conclude that the missing items would likely be found at Mr. Long's residence on
Hogeye Hollow Road. According to the affidavit, Mr. Long was seen in possession of a
truck carrying an ATV. The truck belonged to Mr. Zink, and the ATV with camouflage
packs matched Mr. Zink's description of one of his two missing ATVs. When witnesses
observed Mr. Long with the truck and missing ATV, he was driving on Hogeye Hollow
Road. According to the description of the premises to be searched, Hogeye Hollow Road
is where Mr. Long's residence is located. Moreover, the items stolen were not inherently
incriminating in the same way as narcotics, and many of the items were bulky and,
therefore, likely to be hidden inside a building. The judge issuing the warrant was
entitled to draw the reasonable inference that Mr. Long was driving to his residence with
the missing property, and that the property would likely be found there.
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No. 32029-4-111; No. 32030-8-111
State v. Dunn; State v. Long
We conclude that the trial court erred in suppressing the evidence found in the
search of Mr. Long's home, garage, and barn. Specific facts support both that Mr. Long
participated in the burglary and that the missing items would likely be found at Mr.
Long's home, garage, or barn. The search warrant therefore was supported by probable
cause.
We vacate the suppression orders. Additionally, we vacate the orders of dismissal
and remand for further proceedings.
Lawrence-Berrey, J.
WE CONCUR:
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