State Of Washington, V. Arthur S. Durone

Filed
Washington State
Court of Appeals
Division Two
June 8, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53383-9-II
Appellant,
v.
ARTHUR S. DURONE, UNPUBLISHED OPINION
Respondent.
GLASGOW, J.—During an inventory search of Arthur S. Durone’s truck, an officer observed
firearms and a pipe containing what he believed to be a controlled substance. Before seizing any
items, the officer applied for and received a search warrant, which authorized him to search the
entire vehicle and to seize “all items of evidence of the crime(s)” of “Possession of a Controlled
Substance,” “Possession of Drug Paraphernalia,” and “Felon in Possession of a Firearm.”1
Pursuant to the warrant, the officer recovered controlled substances and multiple firearms from
Durone’s truck.
Durone challenged the search warrant in a CrR 3.6 motion, arguing that it violated the
particularity requirement of the Fourth Amendment to the United States Constitution. The trial
court agreed, finding that the warrant lacked particularity because it failed to specify any items to
be seized. The trial court suppressed all evidence seized pursuant to the warrant and then found
1
Clerk’s Papers (CP) at 22. The warrant was issued before the Washington Supreme Court decided
State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021), invalidating the statute establishing felony
unlawful possession of a controlled substance.
No. 53383-9-II
the State’s case effectively terminated. It also orally denied the State’s motion for reconsideration.
The State appeals the trial court’s order granting the motion to suppress and its denial of the motion
for reconsideration.
We hold that the warrant was overbroad and violated the Fourth Amendment’s particularity
requirement because it failed to list any particular items to be seized. Some description of the items
that may be seized is necessary to guide the executing officer’s discretion and to inform the person
subject to the search of what items could be seized.
We affirm the trial court’s order suppressing all evidence seized pursuant to the overbroad
warrant and affirm the trial court’s order finding the State’s case effectively terminated. We do not
reach the trial court’s denial of the State’s motion for reconsideration.
FACTS
In December 2018, Washington State Patrol Trooper Blake Willson pulled over Durone
for speeding. Durone’s Oregon driver’s license was suspended, and he did not have a valid
Washington driver’s license, so Willson did not permit Durone to continue driving after the stop.
Durone was unable to find anyone who could pick up his truck, so Willson conducted an inventory
search in preparation for a tow. During the inventory search, Willson observed firearms, which
must be promptly removed from a vehicle that will be towed under Washington State Patrol policy.
When he went to retrieve the firearms, Willson saw “a clear cylindrical glass smoking device” that
he recognized as “a pipe used in the consuming of illegal substances.” CP at 18. Willson
“immediately ceased the vehicle inventory,” without seizing the firearms or the pipe, handcuffed
Durone, and advised him of his rights. Id. He asked Durone for consent to search the truck, but
Durone refused.
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No. 53383-9-II
A. Search Warrant
Willson then applied for a warrant to search the truck. In his declaration in support of the
search warrant, Willson summarized the traffic stop, including that he “observed firearms” in the
truck and that when he went to retrieve those firearms, he “observed a clear, glass cylindrical
smoking device” containing what he “believed to be an illegal substance.” CP at 21. Willson
“recognized the glass device as a device used in smoking illegal substances, based on [his] training
and experience.” Id. Willson’s declaration also explained that after arresting Durone, Willson
checked with Washington State Patrol communications and discovered that due to a prior felony
conviction, Durone was not permitted to possess any firearms. Willson specified the items to be
searched for as “[e]vidence of the crime(s) of: 1. Possession of a Controlled Substance 2.
Possession of Drug Paraphernalia 3. Felon in Possession of a Firearm.” Id.A district court judge found:
[T]here is probable cause to believe that evidence of the crime(s) listed below is
present in the item/place to be searched, and that grounds for the issuance of a
search warrant exist, specifically for the crimes of:
1. Possession of a Controlled Substance
2. Possession of Drug Paraphernalia
3. Felon in Possession of a Firearm.
CP at 22. The warrant directed law enforcement to:
1. Search: the aforementioned vehicle in its entirety, from the top of the roof, to
the bottom of the tires, from the very front of the front bumper, to the very rear
of the rear bumper, all voids and recesses.
2. Seize all items of evidence of the crime(s) listed above.
Id. Although the warrant stated that there was probable cause based on Willson’s declaration “filed
herewith,” nothing in the warrant expressly incorporated the declaration by reference. Id.Moreover, possession of drug paraphernalia is not, by itself, a crime under state law.
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No. 53383-9-II
Willson executed the warrant and recovered approximately 204 grams of suspected
marijuana in a baggie, approximately 110 grams of suspected marijuana rolled in paper in a second
baggie, approximately 124 grams of suspected marijuana in a third baggie, and approximately 26
grams of suspected cocaine in a small baggie in a tin can. He also recovered the glass smoking
device, “a clear glass mason jar with amber wax substance,” and four firearms. CP at 5. The State
charged Durone with possession of over 40 grams of marijuana, possession of cocaine, and second
degree unlawful possession of a firearm.
Durone filed a CrR 3.6 motion to suppress the evidence found in his car. He conceded there
was probable cause to support the search, but he argued the search warrant was “overbroad in that
it failed to specify anything that was to be searched for and seized from the vehicle.” CP at 10.
The State responded that “the items to be seized were clearly controlled substances, firearms, and
drug paraphernalia using commonsense.” CP at 29. Durone agreed that had the warrant listed
“‘[f]irearms, ammunition, drug paraphernalia, [and] drugs’” as the items to be seized, that would
have been sufficient, but he asserted that the failure to list these items, and the decision to instead
only identify the crimes under investigation, meant the warrant lacked particularity. Verbatim
Report of Proceedings (VRP) (May 10, 2019) at 14.
The State highlighted that “Willson could have seized the firearms as part of the inventory,
and the pipe, containing what was evident to him as illegal controlled substances, in plain view.
Instead, . . . Willson backed out, sought, and received approval from a neutral magistrate before
collecting the evidence of the recently discovered crimes.” CP at 30.
After a hearing, the trial court granted Durone’s motion to suppress. Applying State v.
Higgins, 136 Wn. App. 87, 147 P.3d 649 (2006), the trial court concluded there was probable cause
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No. 53383-9-II
to seize all of the firearms “as they were visible” during the stop, but there was not probable cause
to seize evidence of “any controlled substance crimes because the only reference to anything
related to controlled substances in the affidavit was mention of a glass smoking device” and the
warrant “never established what was to be searched for.” CP at 41.
The trial court found that the warrant failed to set objective standards and “left to the
officer’s sole discretion what constituted ‘evidence of a crime’ without any specificity or
limitation.” CP at 42. The trial court also determined that the items to be searched for and seized
could have been described “more particularly in light of the information available,” and it provided
as examples the descriptions of “‘firearms and ammunition’” and “‘controlled substances and drug
paraphernalia.’” Id. Ultimately, the trial court concluded that the warrant “failed to specify the
items the officer was to search for or seize, even in broad or general categories or terms” and,
therefore, the language “lacked particularity.” CP at 41. The trial court deemed the warrant
overbroad and suppressed all evidence seized pursuant to the warrant.
The trial court also entered an order finding that “by suppressing the evidence obtained
pursuant to the search warrant, the practical effect is to terminate the [State’s] case.” CP at 114.
B. Motion for Reconsideration
The State filed a motion for reconsideration. In addition to arguing that the trial court
misapplied the law when it suppressed evidence from the search, the motion argued that even if
the trial court maintained its decision that the warrant was overbroad, the firearms and the
controlled substance from the pipe should still be admissible against Durone. The State admitted
that all of the evidence was seized when Willson executed the warrant, but it argued that “[t]he
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No. 53383-9-II
State should be allowed to proceed with the evidence [Willson] could have lawfully seized without
a warrant.” CP at 61 (emphasis added).
The trial court did not rule on the merits of the State’s motion for reconsideration. Instead,
the trial court stated on the record that the parties and the court would have only “two days to
handle this” before Durone’s trial needed to begin, and then the court orally denied the State’s
motion as untimely. VRP (May 23, 2019) at 45. The trial court did not enter a written order denying
the motion.
The State appeals the order suppressing evidence and the ruling denying reconsideration.
ANALYSIS
The State argues that the search warrant satisfied the Fourth Amendment’s particularity
requirement even though it “lacked a list of items a law enforcement officer could search for and
seize,” because “[t]he [possession] crimes listed are in themselves sufficiently narrow.” Br. of
Appellant at 17, 20. We disagree and hold that a search warrant must list the particular items to be
searched for and seized, even when the crimes being investigated are crimes of unlawful
possession.
The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” U.S. CONST. amend. IV (emphasis added). A warrant serves two
purposes: “to limit the executing officer’s discretion” and “to inform the person subject to the
search what items the officer may seize.” State v. Riley, 121 Wn.2d 22, 29, 846 P.2d 1365 (1993).
To effectively serve these purposes, a search warrant must describe the places to be searched and
the things to be seized with “‘reasonable particularity.’” State v. Withers, 8 Wn. App. 123, 126,
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No. 53383-9-II
504 P.2d 1151 (1972). “The purpose of the particularity requirement is to prevent the State from
engaging in unrestricted ‘exploratory rummaging in a person’s belongings’ for any evidence of
any crime.” State v. Askham, 120 Wn. App. 872, 878, 86 P.3d 1224 (2004) (quoting Coolidge v.
New Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971)).
“A search warrant’s description of the . . . property to be seized is sufficiently particular if
‘it is as specific as the circumstances and the nature of the activity under investigation permit.’”
State v. Vance, 9 Wn. App. 2d 357, 363, 444 P.3d 1214 (2019) (quoting State v. Perrone, 119
Wn.2d 538, 547, 834 P.2d 611 (1992)), review denied, 194 Wn.2d 1016 (2020). To determine
whether a warrant’s description is sufficiently particular, we ask “‘whether the warrant sets out
objective standards by which executing officers can differentiate items subject to seizure from
those which are not.’” Higgins, 136 Wn. App. at 91 (internal quotation marks omitted) (quoting
United States v. Mann, 389 F.3d 869, 878 (9th Cir. 2004)). We also ask “‘whether the government
was able to describe the items more particularly in light of the information available to it at the
time the warrant was issued.’” Id. at 91-92 (internal quotation marks omitted) (quoting Mann, 389
F.3d at 878). Where a warrant is overbroad, the supporting affidavit may cure the defect only if it
is “physically attached, and the warrant expressly refers to the affidavit and incorporates it with
‘suitable words of reference.’” Riley, 121 Wn.2d at 29 (quoting Bloom v. State, 283 So.2d 134,
136 (Fla. Dist. Ct. App. 1973)).
“[T]he presumptive rule against warrantless searches applies with equal force to searches
whose only defect is a lack of particularity in the warrant.” Groh v. Ramirez, 540 U.S. 551, 559,
124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004). “Neither the officer’s personal knowledge of the crime
nor a proper execution of the search may cure an overbroad warrant.” Higgins, 136 Wn. App. at
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No. 53383-9-II
91. We review de novo “[w]hether a search warrant contains a sufficiently particularized
description.” Perrone, 119 Wn.2d at 549.
It is necessary to limit the scope of the search by reference to the crime or crimes under
investigation. Compare United States v. Stefonek, 179 F.3d 1030, 1032-33 (7th Cir. 1999) (holding
that an authorization to seize any “‘evidence of crime’” does not satisfy the particularity
requirement) with Andresen v. Maryland, 427 U.S. 463, 479-81, 96 S. Ct. 2737, 49 L. Ed. 2d 627(1976) (permitting a search for “‘evidence of crime’” where it is “clear from the context that the
term ‘crime’ in the warrants refers only to the crime of false pretenses with respect to [a specific
land sale]”). But this specification alone is not sufficient to satisfy the particularity requirement.
The scope of a search warrant should be limited by reference to the crimes under
investigation and a list of specific items that may be relevant to the investigation. In State v. Reid,
for example, the warrant authorized a search for “‘a shotgun, ammunition for the shotgun, a dark
leather or vinyl jacket, a pillowcase or other [bed linen] with a pattern of daisies, leaves, and
strawberries on it, nitrates, and any other evidence of the homicide.’” 38 Wn. App. 203, 211, 687
P.2d 861 (1984). The defendant argued the last phrase, “‘any other evidence of the homicide,’”
enabled an impermissible “‘general’” search, but Division One determined that this phrase
“specifically limited the warrant to the crime under investigation” and “[t]he specific items listed,
such as a shotgun and shotgun shells, also provided guidelines for the officers conducting the
search.” Id. at 212. The court concluded that “these limitations were adequate.” Id.
Similarly, in State v. Lingo, the warrant authorized a search for “‘any and all evidence of
assault and rape including but not limited to bedding, clothing, female clothing, blood stains,
semen stains, and residue or other residue of sexual activity; human hair and any and all weapons
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No. 53383-9-II
that may have been used in the commission of said crimes.’” 32 Wn. App. 638, 640, 649 P.2d 130(1982). This court concluded that the warrant was sufficiently particular because “[t]he wording
‘any and all evidence’ was specifically limited to the crimes of assault and rape” and “additional
restrictions were incorporated in the warrant by the listing of possible items such as female
clothing, bedding and blood and semen stains.” Id. at 642. This list of possible items “provided
guidelines for the officers conducting the search.” Id.
In contrast, in Higgins we held that a search warrant was overbroad where officers heard
gunfire after a domestic dispute and obtained a warrant “authorizing seizure of ‘certain evidence
of a crime, to-wit: “Assault 2nd DV” RCW 9A.36.021.’” 136 Wn. App. at 90. We explained that
this warrant was overbroad because it “in no way limited the search to illicit items,” and it
“contained no list of examples to guide the search.” Id. at 94. The officer’s supporting affidavit
had “establish[ed] probable cause to search for ‘a Glock pistol, unknown serial number or caliber;
a spent casing, bullets, and an entry and possibly exit point where the bullet struck.’” Id. at 90.
“The warrant could easily have specified” the items listed in the officer’s affidavit, “rather than
the general description” of evidence of second degree assault, but it failed to do so. Id. at 92.
It is true that “[a] lesser degree of precision may satisfy the particularity requirement when
a warrant authorizes the search for contraband or inherently illicit property.” State v. Chambers,
88 Wn. App. 640, 644, 945 P.2d 1172 (1997). This is because where officers are searching for “a
specific item of property,” that item “should be described in the warrant with sufficient
particularity to preclude an officer from seizing the wrong property,” but where officers are
searching for “any property of a specified character, a particularized description is unnecessary
and often impossible.” Withers, 8 Wn. App. at 127.
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No. 53383-9-II
For example, where the person whose property is being searched has previously been
convicted of a felony offense, a warrant authorizing a search for any and all firearms is sufficiently
particular because any and all firearms in that person’s possession are contraband. See United
States v. Pulliam, 748 F.3d 967, 972 (10th Cir. 2014) (“Since [the defendant] was a felon . . . any
guns in his possession were contraband. No specific description of a gun was necessary.”). The
warrant does not need to list every possible make and model of firearm that could be seized. The
warrant does, however, need to specifically designate firearms as the items to be seized.
Here, the search warrant authorized officers to search for and seize “all items of evidence
of the crime(s)” of “Possession of a Controlled Substance,” “Possession of Drug Paraphernalia,”
and “Felon in Possession of a Firearm.” CP at 22. These descriptions of the crimes under
investigation were copied directly from Willson’s declaration. The warrant did not expand upon
the descriptions or include any statutory citations. Nor did the warrant exclude the reference to
possession of drug paraphernalia, which, even at the time the warrant was issued, was not a crime
under state law.2
2
After Blake was decided, Durone filed a supplemental brief in which he argues that the Supreme
Court’s decision invalidating Washington’s strict liability drug possession statute, former RCW
69.50.4013(1), undermined the validity of the warrant issued in this case. However, a declaration
that a statute or ordinance is unconstitutional does not necessarily invalidate an earlier
determination that there was probable cause that a person had violated the statute or ordinance.
See Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979). The United
States Supreme Court has indicated that unconstitutionality of a law would not invalidate a prior
determination of probable cause, except possibly when the law was “so grossly and flagrantly
unconstitutional that any person of reasonable prudence would be bound to see its flaws.” Id. at
38. The Washington Supreme Court has added that a prior determination of probable cause would
be invalidated where “substantially the same” statutory language had been invalidated before the
determination of probable cause. State v. White, 97 Wn.2d 92, 103, 640 P.2d 1061 (1982),
superseded by statute as recognized in State v. Graham, 130 Wn.2d 711, 716 n.2, 927 P.2d 227(1996).
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No. 53383-9-II
More concerning, the warrant did not list any particular items that would be subject to
search and seizure, even in broad categorical terms. The State relies on Chambers to argue that the
warrant here was sufficiently particular. Although the warrant in Chambers authorized a broad
search for contraband, it expressly listed “weapons and ammunition” and “indicia of ownership or
dominion and control” as items to search for. 88 Wn. App. at 642. It also included subparagraphs
describing “the items subject to seizure” and explaining the “necessary proof of the crime under
investigation.” Id. at 646. None of that detail was present here.
The warrant here more closely resembled the overbroad warrant in Higgins, which
authorized a general search for “‘evidence of a crime’” and “contained no list of examples to guide
the search.” 136 Wn. App. at 90, 94. Higgins requires warrants to contain objective standards for
executing officers to differentiate between items that are and are not subject to seizure. Id. at 91.
But here, the determination of what items constituted “evidence of” the designated crimes was left
entirely to the executing officer’s discretion, defeating a key purpose of the warrant requirement.
Additionally, the warrant could have easily “‘describe[d] the items more particularly in
light of the information available . . . at the time the warrant was issued.’” Id. at 91-92 (quoting
Mann, 389 F.3d at 878). Willson detailed specific firearms in his declaration. The warrant could
have repeated this description, or it could have incorporated Willson’s declaration by reference.
The warrant could even have described the evidence more particularly by using broad terms, such
Here, former RCW 69.50.4013(1) was in effect when the warrant was issued in December
2018, and the statute had previously been upheld. E.g., State v. Bradshaw, 152 Wn.2d 528, 539,
98 P.3d 1190 (2004). Thus, the officer and the district court were entitled to rely on possession of
a controlled substance as a crime when establishing probable cause for the search.
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No. 53383-9-II
as “weapons and ammunition.” Instead, the warrant failed to describe any items at all. We therefore
hold that the search warrant violated the Fourth Amendment’s particularity requirement. 3
The State alternatively argues that even if the warrant were overbroad, the State should be
permitted to prosecute Durone based on Willson’s observations of the firearms during the traffic
stop. We disagree.
“Where a search warrant is found to be an unconstitutional general warrant, the invalidity
due to unlimited language of the warrant taints all items seized.” Perrone, 119 Wn.2d at 556.
Willson certified that he received the search warrant and that “pursuant to the command therein
contained,” he searched Durone’s truck and seized various controlled substances and four firearms.
CP at 23. The warrant was properly found to be unconstitutional because it was insufficiently
particular, and its invalidity “taints all items seized.” Perrone, 119 Wn.2d at 556. Willson’s prior
observations of the evidence cannot serve as a substitute for the tainted evidence.4
CONCLUSION
We hold that the search warrant violated the Fourth Amendment’s particularity
requirement and was overbroad. The warrant failed to describe any particular items to be seized
and, therefore, it failed to guide the executing officer’s discretion and to inform the person subject
to the search what items could be seized.
3
We recognize that “[a] warrant can be ‘overbroad’ either because it fails to describe with
particularity items for which probable cause exists, or because it describes, particularly or
otherwise, items for which probable cause does not exist.” State v. Maddox, 116 Wn. App. 796,
805, 67 P.3d 1135 (2003) (emphasis added) (footnote omitted). Thus, we decline to engage in an
extended discussion of probable cause here.
4
We need not reach the trial court’s denial of the State’s motion to reconsider as untimely because
doing so is not necessary to resolve this case.
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No. 53383-9-II
We affirm the trial court’s order suppressing all evidence seized pursuant to the warrant
and affirm the trial court’s order finding the State’s case effectively terminated.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Glasgow, J.
We concur:
Lee, C.J.
Worswick, J.
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