State of Washington v. Kevin Ray Edgar ( 2016 )

FILED
April 21, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 33778-2-111
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
KEVIN RAY EDGAR, )
)
Appellant. )
LAWRENCE-BERREY, A.C.J. - Kevin Ray Edgar appeals his conviction for
vehicular assault. He claims the trial court erred in concluding that the affidavit in
support of a warrant sufficiently established the reliability of an unnamed witness. We
affirm.
FACTS
On the evening of January 10, 2015, a witness reported seeing Kevin Ray Edgar
driving between 80 and 90 m.p.h. in a 55 m.p.h. zone before being involved in a single
car accident. The first police officer to arrive at the scene of the collision observed that
Mr. Edgar's car left the roadway and landed on its passenger side. Mr. Edgar and the
passenger were transported to a hospital.
No. 33778-2-III
State v. Edgar
Trooper Charles Ferrell, a drug recognition expert, contacted Mr. Edgar at the
hospital. The trooper could smell an odor of intoxicants coming from Mr. Edgar. Mr.
Edgar was uncooperative and belligerent with Trooper Ferrell. Trooper Ferrell compiled
an affidavit in support of a warrant to obtain a blood sample from Mr. Edgar to test for
evidence of intoxication. The affidavit provided in part:
According to Trooper B. Pilkington #1202 who is at the scene of the
collision, Mr. Edgar's vehicle left the roadway to the north where it drove
up an embankment before becoming airborne. The vehicle rolled coming to
rest on the north shoulder. The vehicle was on its passenger side facing
east.
Witness stopped at the scene and pulled both parties from the vehicle.
Witness advised female passenger and male driver. Witness advised female
passenger was yelling at male for driving too fast, being drunk and high,
and almost killing her.
Trooper Pilkington was the first Trooper to arrive on the scene and
contacted Mr. Edgar and the passenger. Trooper Pilkington advised Mr.
Edgar was belligerent and had an overwhelming odor of alcohol coming
from his person. Trooper Pilkington advised Mr. Edgar's speech was
slurred. Due to injuries, Trooper Pilkington was unable to perform any
standardized field sobriety tests with Mr. Edgar.
Clerk's Papers at 22.
The trial court issued the warrant. Mr. Edgar filed a motion to suppress the
blood test evidence, arguing the affidavit in support of the warrant failed to
establish the reliability of the unnamed witness. The trial court denied the motion.
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No. 33778-2-111
State v. Edgar
ANALYSIS
When reviewing the denial of a motion to suppress, we determine whether
substantial evidence supports the trial court's findings and, in tum, whether those findings
support the conclusions of law. Mr. Edgar does not assign error to the trial court's
findings, which we therefore treat as verities on appeal. State v. Ross, 141 Wash. 2d 304,
309, 4 P.3d 130 (2000).
Probable cause to issue a warrant is established if the supporting affidavit sets
forth "facts sufficient for a reasonable person to conclude the defendant probably is
involved in criminal activity." State v. Huft, 106 Wash. 2d 206, 209, 720 P.2d 838 (1986).
The affidavit must be tested in a commonsense fashion rather than hypertechnically.
State v. Jackson, 150 Wash. 2d 251, 265, 76 P.3d 217 (2003). The existence of probable
cause is a legal question that a reviewing court reviews de nova. State v. Chamberlin,
161 Wash. 2d 30, 40, 162 P.3d 389 (2007). However, we afford great deference to the
issuing magistrate's determination of probable cause. State v. Cord, 103 Wash. 2d 361, 366,
693 P.2d 81 (1985).
We apply the two-pronged Aguilar-Spinelli test to assess the adequacy of a search
warrant affidavit. State v. Jackson, 102 Wash. 2d 432, 446, 688 P.2d 136 (1984); Spinelli v.
United States, 393 U.S. 410, 415-16, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v.
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No. 33778-2-III
State v. Edgar
Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). Probable cause based
on an informant's information requires that an affidavit establish both the informant's
reliability and basis of knowledge. Jackson, 102 Wash. 2d at 445; State v. Smith, 110 Wash. 2d
658, 664, 756 P.2d 722 (1988). Where one or both of these factors is weak, independent
police investigation can supply corroboration. Jackson, 102 Wash. 2d at 445. An unnamed
citizen informant is considered reliable if the record establishes that the information is
credible and the informant is without motive to falsify. State v. Cole, 128 Wash. 2d 262,
287-88, 906 P.2d 925 (1995).
Mr. Edgar argues that the superior court erred in determining that the affidavit
provided sufficient facts to determine the reliability of the unnamed witness. We
disagree.
When dealing with unnamed citizen informants, courts are concerned with whether
the informant is an "anonymous troublemaker" or a helpful citizen who wishes to retain
his or her privacy. State v. Ibarra, 61 Wash. App. 695, 699-700, 812 P.2d 114 (1991). To
guard against anonymous troublemaking, the affiant must provide enough additional
information to support an inference that the informant is telling the truth. Id. at 700.
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No. 33778-2-III
State v. Edgar
Nothing in this case suggests anonymous troublemaking. Here, the record
confirms that the unnamed witness was simply a concerned citizen with no motive to
fabricate. The witness reported the collision to dispatch, remained at the scene, removed
Mr. Edgar and the injured passenger from the cars, and stayed to provide a statement to
law enforcement. Trooper Ferrell's failure to state the witness's name in the affidavit
appears to be an oversight, rather than based on the witness's desire to remain
anonymous. In fact, the trial court concluded that Trooper Ferrell's failure to name the
witness in the affidavit did not render the witness anonymous because the witness was
identified by law enforcement and present during Trooper Pilkington's investigation.
However, even ifwe depart from the trial court's analysis and treat the witness as
anonymous, there was sufficient evidence in the affidavit to establish the witness's
reliability. The citizen came forth voluntarily, received no benefit from providing
information, and the police investigation corroborated the witness's information. Giving
deference to the trial court's determination, the affidavit contains sufficient facts to
support a reasonable inference that the witness was credible and without motive to falsify.
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No. 33778-2-111
State v. Edgar
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, A.C.J.
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WE CONCUR:
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Siddoway, J.
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Pennell, J.
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