State Of Washington, Resp. v. Tjuan Blye, App. ( 2013 )


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  •       IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
    STATE OF WASHINGTON,                             ]
    o
    No. 68603-8-1
    Respondent,
    DIVISION ONE
    v.
    TJUAN BLYE,                                               UNPUBLISHED OPINION
    Appellant.               )        FILED: December 9. 2013               CO
    • *         —*-* \._ -
    en
    Spearman, A.C.J. — Tjuan Blye appeals his convictions for unlawful
    possession of a firearm in the first degree and possession of a stolen firearm. He
    argues that the trial court erred in denying his motion to suppress because the
    affidavit in support of the warrant did not contain facts sufficient to establish a
    nexus between the suspected criminal activity and the residence where the
    firearm was found. We conclude that the facts contained in the affidavit were
    insufficient to establish such a nexus and reverse.1
    FACTS
    Tjuan Blye, a suspected drug dealer, was the subject of an Everett police
    investigation which spanned several months. On May 26, 2011, Everett Police
    1Blye also contends that insufficient evidence supports his conviction for possession ofa
    stolen firearm because the State failed to establish that he knew the firearm seized was stolen. In
    a statement of additional grounds pursuant to RAP 10.10, Blye challenges the sufficiency of the
    evidence regarding his possession of the firearm, asserts that his rights under the confrontation
    clause were violated, and claims ineffective assistance of counsel. Based on our disposition of
    this case, we do not address these arguments.
    No. 68603-8-1/2
    Officer Duane Wantland sought a warrant to arrest Blye and to search BIye's
    white 2001 Chevrolet Tahoe (the Tahoe) and a residence located at 805 1/2
    52nd Place, W. in Everett, WA. for evidence of illegal drug activity and weapons.
    In support of the request, Wantland submitted an affidavit detailing the Everett
    Police Department's investigation of Blye since the fall of 2010. The affidavit
    contained the following information:
    •   September 29, 2010 - Blye was found in the Tahoe with a
    small amount of cocaine and with         items associated with
    converting powder cocaine to crack cocaine.
    •   March 3, 2011 - While driving the Tahoe, Blye was observed
    engaging in a purported drug deal. A search of the Tahoe
    revealed a quantity of MDMA (ecstasy). A later search,
    pursuant to a search warrant, also discovered a quantity of
    Vicodin, a controlled substance. BIye's cell phone also
    displayed numerous texts from individuals seeking ecstasy,
    heroin and marijuana.
    •   Sometime in April 2011, an informant, at the direction of
    Wantland, arranged a controlled buy for the purchase of a
    quantity of crack cocaine from Blye. The purchase was made
    in the Tahoe.
    •   May 4, 2011 - The Tahoe, while being driven by an unknown
    female, was impounded pursuant to a search warrant for
    marijuana. At the time of the stop, the Tahoe was followed by
    a blue Honda driven by Blye.
    •   May 10, 2011 - Blye was observed driving the blue Honda.
    Blye and an unknown person picked up the Tahoe from
    impound. The Honda and the Tahoe were driven to 805 Vz
    52nd Place W. in Everett, WA. The Tahoe was parked in the
    driveway of the residence in front of a garage door.
    •   May 11, 2011 - The Tahoe and the Honda were observed
    parked at the 805 1/2 52nd Place W. residence. In addition,
    sometime later that week, the Tahoe was observed parked in
    the driveway.
    No. 68603-8-1/3
    •   May 24, 2011 - The Tahoe was seen by an Everett police
    officer parked in the driveway at 805 Vz 52nd Place W. The
    officer also observed a black male fitting BIye's description
    and a female come and go from the residence, but could not
    confirm the black male was Blye.
    •   At some point during the 48 hours preceding the request for
    the warrant, Wantland arranged for another controlled buy
    from Blye. After the call was made to arrange the deal, Blye
    and a female were observed leaving 805 Vz Place W. and
    getting into the Tahoe. Blye met with the informant and sold
    him a quantity of crack cocaine. Blye did not return to 805 Vz
    Place W. after the sale.
    The affidavit stated that "Blye has been quite secretive on his residence"
    and Wantland has been unable to locate Blye at "listed addresses." Clerk's
    Papers (CP) at 98. The affidavit did not identify Blye or anyone else as a resident
    of the 805 Vz address or otherwise indicate BIye's relationship to the home or its
    residents. In addition, the affidavit asserted that:
    Your affiant (Wantland) knows that to produce crack cocaine
    from cocaine powder, you need a heat source, water and
    container for cooking the cocaine. Your affiant knows that
    baking soda and[/]or ammonia is also used in the conversion
    process. Your affiant knows that normally this process is done
    indoors in a controlled environment and can be done in a
    microwave or direct heat source.
    CP at 97.
    The warrant was issued on May 26, 2011 and was executed that same
    day by OfficerWantland and other Everett police officers. No one was present at
    the residence when the officers arrived to execute the warrant, but soon
    thereafter Blye and a female passenger, later identified as Gabriel Krug, pulled
    into the driveway in the Tahoe. Blye was placed under arrest. Krug was identified
    No. 68603-8-1/4
    as BIye's girlfriend. It was not alleged that any evidence of illegal drug activity
    was discovered inside the residence, the Tahoe or on BIye's person. The officers
    did find evidence that indicated Blye resided at the address. They also found a
    .40-caliber glock handgun in a drawer of a nightstand. Subsequent police
    investigation determined that the gun had been stolen approximately three years
    prior. Blye was charged with unlawful possession of a firearm in the first degree
    and possession of a stolen firearm.
    Pursuant to CrR 3.6, Blye moved to suppress the evidence seized from
    the residence on the ground that the search violated the fourth amendment to the
    United States Constitution and article 1, section 7 of the Washington State
    Constitution. Blye conceded that there was probable cause to search the Tahoe
    and for his arrest. But he argued the affidavit in support of the warrant did not
    contain sufficient facts to warrant a reasonable inference that evidence of any
    criminal activity would be found inside the residence. The trial court denied the
    motion. A jury found Blye guilty as charged and he was sentenced to 157 months
    incarceration. He appeals.
    DISCUSSION
    The fourth amendment to the United States Constitution and article I,
    section 7 of our state constitution require that a search warrant issue only on a
    determination of probable cause. State v. Fry, 
    168 Wash. 2d 1
    , 5-6, 
    228 P.3d 1
    (2010) (citing State v. Vickers. 
    148 Wash. 2d 91
    , 108, 
    59 P.3d 58
    (2002)). Probable
    cause is established where there are facts and circumstances sufficient to
    establish a reasonable inference that the defendant is involved in criminal activity
    4
    No. 68603-8-1/5
    and that evidence of the criminal activity can be found at the place to be
    searched. State v. Maddox. 
    152 Wash. 2d 499
    , 505, 
    98 P.3d 1199
    (2004). It is the
    probability of involvement in criminal activity or the likelihood of discovering
    evidence of it in a particular place that governs the existence of probable cause,
    jd., (citing, State v. Thein. 
    138 Wash. 2d 133
    , 140, 
    977 P.2d 582
    (1999); ("probable
    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.")
    (quoting, State v. Goble. 
    88 Wash. App. 503
    , 509, 
    945 P.2d 263
    (1997) (citing
    Wayne R. LaFave, Search and Seizure § 3.7(d), at 372 (3d ed.1996)). The
    judicial officer issuing the warrant is entitled to make reasonable inferences from
    the facts and circumstances set out in the affidavit. 
    Maddox, 152 Wash. 2d at 505
    (citing State v. Smith, 
    16 Wash. App. 425
    , 427, 
    558 P.2d 265
    (1976)).
    On appellate review, we consider the same evidence presented to the
    judicial officer who issued the warrant. We review de novo the issuing judicial
    officer's conclusion of law that probable cause is established.2 Ornelas v. United
    States, 
    517 U.S. 690
    , 695, 116 S.Ct 1657, 134 LEd.2d 911 (1996); State v.
    Chamberlin, 
    161 Wash. 2d 30
    , 40, 
    162 P.3d 389
    (2007); In re Pet, of Petersen, 
    145 Wash. 2d 789
    , 799, 
    42 P.3d 952
    (2002); State v. Estorga, 
    60 Wash. App. 298
    , 304
    2The State's reliance on the hearing judge's findings of fact is misplaced. Although CrR
    3.6 requires the hearing judge to enter such findings, in the context of appellate review the
    findings are superfluous because, likethe hearing judge, we consider only the record that was
    before the judicial officer issuing the warrant. Perez, 
    92 Wash. App. 1
    , 4 n.3; Estorga, 
    60 Wash. App. 298
    , 304 n.3. We also reject the State's argument that we review the issuing judicial officer's legal
    conclusion that probable cause has been established for abuse of discretion. Although, "[pjrior
    case law on the standard of appellate review of such probable cause determinations is admittedly
    muddled," the more recent cases have held de novo review is the applicable standard. In re
    Petersen. 145 Wn.2d, 799.
    No. 68603-8-1/6
    n.3, 
    803 P.2d 813
    (1991). We interpret the affidavit in a commonsense, practical
    manner rather than hypertechnically. State v. Perez, 
    92 Wash. App. 1
    , 4, 
    963 P.2d 881
    (1998)
    Blye concedes that the affidavit submitted in this case is sufficient to
    support a determination of probable cause to believe evidence of his alleged
    drug dealing would likely be found in the Tahoe. Crack cocaine and materials
    used to convert powder cocaine into crack had previously been found in the
    vehicle and on two occasions he was observed selling crack to a confidential
    informant while in the Tahoe. The most recent occasion occurred within forty-
    eight hours of the request for a warrant.
    The State does not dispute that all of BIye's criminal activity as related in
    the affidavit occurred in the Tahoe. Nonetheless, the State argues that the finding
    of probable cause should extend to the 805 Vz residence. In support of this
    argument, the State points to the brief sightings of Blye and automobiles
    associated with him at the residence. In addition, relying on the affiant's assertion
    that, in his experience, converting powder cocaine into crack requires an indoor
    environment, the State argues that, because Blye was selling crack, he must
    have need of an indoor environment to convert powder cocaine into crack. It
    contends it is reasonable to infer that BIye's indoor environment was the 805 Vz
    residence and therefore likely that evidence of illegal drug activity would be found
    there. Of most significance, according to the State, however, is that sometime
    between May 24 and May 26, after receiving a call from the confidential
    informant, Blye left the residence in the Tahoe to engage in a drug transaction
    6
    No. 68603-8-1/7
    with the same informant. From this, the State contends it is reasonable to infer
    that additional drugs and other evidence would likely be found inside the
    residence.
    The State's arguments are unpersuasive because they hinge on the
    assumption that Blye had something more than a passing connection to the 805
    Vz residence. And, although the search of the residence yielded evidence to
    suggest that was the case, this evidence was not available to the judicial officer
    who issued the warrant. According to the affidavit, BIye's only connection to the
    residence was that two cars associated with Blye had been seen there on four
    occasions and Blye had been seen there twice over a two-week period.
    The State relies principally on 
    Perez, 92 Wash. App. at 7-8
    . In that case, we
    upheld a residential search warrant because the affidavit contained both specific
    information provided to the police by an informant and the officer's direct
    observations of the suspect, known as Felix. The informant told the police that
    Felix dealt cocaine in large quantities and that he carried only the amount of
    cocaine needed for each transaction. The officers set up controlled buys through
    the informant and observed Felix. On two occasions, they saw him go to the
    Perez's house and then go to complete drug deals. The officers also documented
    Felix's use of another address as a safe house. We concluded that these specific
    facts supported an inference that Perez's house was being used as a "safe
    house" where Felix kept drugs and other evidence of his drug dealing and upheld
    the warrant.
    No. 68603-8-1/8
    Perez is distinguishable. Here, there is no evidence that Blye went to the
    805 Vz residence to obtain the drugs he was going to sell to the informant or that
    BIye's method of operation involved use of the residence as a place to store
    drugs. The evidence in the affidavit only shows that at the time Blye got the call
    from the informant, he was already at the residence and he then drove the Tahoe
    to make the delivery. In the absence of any evidence establishing the nature of
    BIye's relationship to the residence or its occupants, these facts are insufficient to
    support an inference that evidence of BIye's criminal activity would be found
    inside. Were we to hold otherwise, law enforcement officers could establish
    probable cause to search a residence merely by directing the informant to make
    the call to arrange a drug deal while the suspect was in the place the officers'
    wished to search. We cannot sustain the warrant under these circumstances
    without "diluting important safeguards that assure that the judgment of a
    disinterested judicial officer will interpose itself between the police and the
    citizenry." State v. White, 
    44 Wash. App. 215
    , 219, 
    720 P.2d 873
    (1986), (quoting
    Spinelli v. United States, 
    393 U.S. 410
    , 419, 
    89 S. Ct. 584
    , 21 LEd.2d 637
    (1969).
    The State's reliance on State v. G.M.V., 
    135 Wash. App. 366
    , 372, 
    144 P.3d 358
    (2006), is also misplaced. In that case, the defendant's boyfriend stayed at
    her house several days a week, but he did not live there. A confidential informant
    working with the police, arranged to buy marijuana from the boyfriend on two
    occasions. The first time, the boyfriend left G.M.V.'s house to meet the informant
    and then returned to the house after the sale. The second time, the boyfriend
    8
    No. 68603-8-1/9
    came from a different location but again returned to G.M.V.'s house after the
    sale. Based on this information, the police obtained a warrant to search G.M.V.'s
    house and discovered marijuana. G.M.V. was convicted of possession of
    marijuana. On appeal, she alleged that her lawyer had been ineffective because
    he did not challenge the warrant. She contended that had he done so, the
    challenge would have been successful because there was no nexus between her
    boyfriend's drug dealing and her parent's house. Relying on Thein, she argued
    that the warrant was based only on generalized notions of the supposed
    practices of drug dealers. We affirmed her conviction because "the affidavit
    supporting this warrant did not rely on generalized beliefs about the habits of
    drug dealers as in Thein. The warrant was to search the place [the boyfriend] left
    from and returned to before and after he sold drugs. This was a nexus that
    established probable cause that [the boyfriend] had drugs in the house."
    G.M.V.,135 Wn. App. at 372.
    Significantly, in G.M.V., we focused on the fact that, at least on one
    occasion, the suspect was seen going directly from the searched residence to a
    controlled buy and back again. Thus, there was no other place from which he
    could have obtained the drugs sold other than the house. This evidence, in
    addition to the fact that the suspect regularly stayed at the house, was sufficient
    to infer that additional drugs would likely be found inside. By contrast, in this
    case, there was no evidence in the affidavit that Blye resided at the 805 Vz
    residence. The affidavit indicated that vehicles associated with Blye were
    observed at the residence four times, and Blye himself was seen there twice,
    9
    No. 68603-8-1/10
    over a two-week period, but that the location of BIye's residence was unknown.
    In addition, while the suspect in G.M.V. went directly from the residence to a drug
    transaction, Blye went from the residence to his Tahoe, a place known to
    frequently contain crack cocaine, and then to meet the informant. On these facts,
    it is more likely evidence of illegal drug activity would be found in the Tahoe than
    in the residence. Thus, G.M.V. is of no help to the State.
    This case is more like State v. Goble, 
    88 Wash. App. 503
    , 
    945 P.2d 263
    (1997). In that case, a confidential source had informed law enforcement officers
    that Goble often received illegal drugs sent through the mail to his post office
    box. In the course of their investigation, the officers learned that Goble and one
    Loraine Stamper resided at 206 1st Street, in Morton, Washington. They also
    contacted the United States Postal Inspector, who verified that Stamper was
    renting P.O. Box 338 at the Morton Post Office. ]a\ at 504-06.
    A few weeks later, the same confidential source told police that Goble had
    recently received a shipment of controlled substances. An officer asked the mail
    handling facility at the Seattle-Tacoma Airport to watch for, and notify him of, any
    packages addressed to P.O. Box 338 in Morton. Shortly afterward, the Seattle-
    Tacoma mail facility advised that it was in possession of a package addressed to
    Goble at P.O. Box 338. After a drug dog alerted on the package, police obtained
    a valid federal search warrant for the package. When the officers executed the
    warrant, the package was found to contain methamphetamine. ]d. at 505-06.
    The officers restored the package to its original condition and planned to
    deliver it to P.O. Box 338 in Morton. They obtained an anticipatory search
    10
    No. 68603-8-1/11
    warrant, by which they were authorized to follow the package and, only if they
    observed the package being taken into the 206 1st Street, to search the
    residence. Officers observed Goble pick up the package from P.O. Box 338 and
    return to 206 1st Street; they did not see Goble actually enter the residence with
    the package. Despite this, they executed the search warrant and discovered
    methamphetamine in the residence. 
    Id. at 506-07.
    On appeal, Goble asserted that there was insufficient nexus between the
    suspected criminal activity and the residence searched. We agreed, reasoning
    that:
    When the magistrate issued the warrant, he had no
    information that Goble had previously dealt drugs out of his
    house, rather than out of a different place (for example, a
    tavern, his car, or a public park). He had no information that
    Goble had previously stored drugs at his house, rather than in
    some other place (for example, in his car, at his place of
    employment, at a friend's house, or buried in the woods). He
    had no information that Goble had previously transported
    drugs from [the post office box] to the house, or that Goble
    had previously said he intended to do so. In sum, he had no
    information from which to infer. . . that Goble would take the
    package from the post office to his house, or that the package
    would probably be found in the house when the warrant was
    executed.
    id, at 512.
    Similarly, in this case, the affidavit in support of the warrant had no
    indication that Blye or anyone else had previously dealt drugs from the
    residence, stored drugs at the residence or transported drugs to the residence
    from some other location. There was no assertion that drugs were observed
    going into or coming out of the residence. According to the affidavit, the only
    11
    No. 68603-8-1/12
    evidence was that Blye had sold and transported drugs in the Tahoe. As in
    Goble, these facts are insufficient to establish a basis to reasonably infer that the
    residence also contained evidence of BIye's alleged criminal activity.
    We conclude the affidavit submitted in support of the warrant lacked a
    sufficient basis in fact from which to conclude evidence of illegal activity would be
    found at the residence that was searched. It was error to deny the defendant's
    motion to suppress.
    The judgment is reversed.
    *tlr^<<^j |V-A)%
    WE CONCUR:
    &*,->•
    12