No. 49894-1-I c/w 51178-5-IThe Court of Appeals of Washington, Division One.
Filed: May 12, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County Docket No: 01-1-00426-6 Judgment or order under review Date filed: 01/16/2002
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
David L. Donnan, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Kira Franz, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Susan F Wilk, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Craig D. Chambers, Attorney at Law, Whatcom Co Prosecutor, 311 Grand Ave Fl 5, Bellingham, WA 98225-4048.
Laura D. Hayes, Attorney at Law, Whatcom County Pros Ofc, 311 Grand Ave, Bellingham, WA 98225-4048.
Kimberly Anne Thulin, Whatcom Cty Pros Atty’s Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
PER CURIAM.
David Alexanderson challenges his conviction for delivery of marijuana. He argues that the trial court erred in admitting evidence seized as the result of an allegedly defective search warrant. Based on the record before it at the time, the trial court properly admitted the evidence. Alexanderson argues in the alternative that he was deprived of effective assistance of counsel because his trial attorney failed to renew his motion to suppress after further facts came out at trial. Because Alexanderson has failed to demonstrate that such a motion would have been successful, he has failed to establish prejudice. His ineffective assistance claim therefore fails, and we affirm his conviction and deny his personal restraint petition.
FACTS
On April 23, 2001, the Northwest Regional Drug Task Force (NRDTF) entered into a contract with confidential informant (CI) Tad Steward. Whatcom County Sheriff’s Office Detective Bryan Collins, who was assigned to the Drug Enforcement Agency (DEA) local task force and worked with the NRDTF, learned about Steward through the drug task force in the Tri-Cities. Steward traveled from the Tri-Cities to Whatcom County, where NRDTF paid for his hotel and living expenses. Detective Collins testified at trial that `based on his information it was a worthwhile cause to pay for it.’
In addition, the NRDTF agreed to pay Steward $200 for his assistance in setting up a purchase of marijuana. On April 25, 2001, Detective Collins met with Steward in Bellingham. Steward told the detective that he had contacted David Alexanderson about purchasing a large quantity of marijuana. Steward then made a phone call to someone who identified himself as `Dave’ while Detective Collins listened in. Steward asked if the price was still $2,300. Dave replied that the price was $750 per quarter pound. When Steward asked if Dave could `front’ him for an additional quarter pound because he only had $2,300, Dave said he would have to check. Steward told Dave that he would be over shortly.
Following this conversation, Detective Collins notified other units to establish surveillance at 2019 Willey’s Lake Road in Custer, Washington. He searched Steward and his vehicle for the presence of money and contraband, then provided him with $2,300 in prerecorded buy money. Detective Collins followed Steward to the residence that other officers had under surveillance.
Steward arrived at the residence at approximately 2:22 p.m. At 2:37 p.m., he left and met with Detective Collins. He told Detective Collins that the marijuana had not arrived yet. Steward returned to the residence and at approximately 2:47 p.m., a black Mitsubishi pulled in the driveway behind him. At 3:02 p.m., Steward left the residence.
When they met up, Detective Collins again searched Steward. Steward had $50 of the prerecorded buy money left, because he had purchased = of a pound of marijuana at $750 per quarter pound. Steward told the detective that Dave weighed the marijuana on a scale and packaged it for him. Steward placed the money on a dresser where it was picked up by `Mike’ (later identified as Mike Watts), the man who had arrived at the house shortly after Steward had arrived the second time. Watts left the residence in the black Mitsubishi, and was arrested by the surveillance officers. At the time of his arrest, Watts was in possession of $2,200 of the buy money.
Detective Collins and a deputy prosecutor then telephoned a judge to obtain a warrant to search the house located at 2019 Willey’s Lake Road for prerecorded buy money, marijuana, scales, and other drug paraphernalia. Detective Collins indicated to the judge that a CI had purchased = of a pound of marijuana at the residence earlier that day. The judge asked whether the detective had used this CI before, and Detective Collins responded that he had not. The judge then asked whether this was a controlled buy. Detective Collins responded that it was, and in response to further questions from the judge, indicated that he controlled the money going into the residence and that the CI was surveilled going in and going out. Detective Collins also described the phone call he had listened in on between the CI and `Dave.’ He explained to the judge what the CI had told him about the transaction, and further told the judge about the arrest of Watts, and the fact that buy money was found on Watts. The judge authorized the telephonic warrant.
When officers served the warrant, they found a scale in the closet of the master bedroom. Detective Collins interviewed Alexanderson and recognized his voice as that of `Dave,’ the man he had heard arranging the drug deal on the phone with Steward. Alexanderson apologized to Detective Collins, and told him that `Mike’ had brought the marijuana over. Detective Collins arrested Alexanderson. During a strip search of Alexanderson at the jail, officers found the remaining $50 of prerecorded buy money.
The State charged Alexanderson with delivery of marijuana. Prior to trial, Alexanderson’s attorney filed a motion to suppress evidence pursuant to CrR 3.6, arguing that the warrant was defective because the statement of probable cause in support of the warrant contained no information concerning the reliability and credibility of the CI. At the hearing on this motion, the trial judge ruled that because the warrant was based on a controlled buy, no further showing of the informant’s reliability was required. Alexanderson’s attorney then stated that the defense did not believe that this was a controlled buy, but that he had not yet been able to interview Detective Collins. The court denied the motion to suppress, but indicated that defense counsel could renew the motion at a later time.
The matter proceeded to jury trial. Alexanderson’s attorney did not renew the motion to suppress. A jury convicted Alexanderson as charged, and the trial court imposed a standard range sentence. His appeal and personal restraint petition have been consolidated.
DISCUSSION
Alexanderson first argues that the trial court erred in denying his motion to suppress evidence. He contends that the warrant to search his home was defective because it did not establish the reliability of the CI, and that this was not truly a `controlled buy’ situation because the officers could not actually see the CI enter and exit his house. An affidavit in support of a search warrant must set forth sufficient facts and circumstances to establish a reasonable probability that criminal activity is occurring or is about to occur.[1] Affidavits are to be read as a whole, in a common sense, nontechnical manner, with doubts resolved in favor of the warrant.[2] Great deference is generally given to the issuing magistrate’s probable cause determination.[3] Washington courts apply the two-prong Aguilar-Spinelli test[4] to determine whether an informant’s tip establishes probable cause for a search warrant.[5] Under this test, an affidavit using an informant’s tips to establish probable cause must establish the basis of the informant’s knowledge and the informant’s credibility.[6] The `basis of knowledge’ prong requires that the informant have personal knowledge of the facts asserted to establish probable cause.[7] To satisfy the credibility or veracity prong, the magistrate must receive factual information from which to determine the informant’s present reliability.[8] A `controlled buy’ can satisfy both prongs of the test for probable cause.[9] At the CrR 3.6 hearing, the only information before the court was that this was a controlled buy. In seeking the search warrant, Detective Collins informed the issuing magistrate that the buy was controlled. The defense presented no facts to demonstrate that the buy was not controlled at the time of the CrR 3.6 hearing. The trial court therefore properly denied the motion to suppress. Alexanderson argues in the alternative, both in his appeal and in his personal restraint petition, that his trial attorney was ineffective for failing to renew the motion during trial and/or for failing to present further information at the CrR 3.6 hearing to demonstrate that the buy was not controlled. A defendant who claims ineffective assistance of counsel has the burden to show that (1) counsel’s conduct fell below an objective standard of reasonableness and (2) but for counsel’s unprofessional errors, the result of the proceeding would have been different.[10] There is a strong presumption that a defendant received effective representation.[11] In order to demonstrate prejudice in this case, Alexanderson would need to establish that his attorney would have succeeded had he challenged the validity of the warrant.
A material misrepresentation or omission made with reckless disregard for the truth may invalidate a search warrant.[12] If the defendant makes a substantial preliminary showing that the warrant affidavit includes a false statement made either knowingly and intentionally or with reckless disregard for the truth, and if the statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.[13] The Franks test for material misrepresentations applies also to alleged material omissions.[14] If the `deliberate or reckless’ showing is not made, however, the inquiry ends.[15] An allegation of a negligent or innocent mistake is insufficient to trigger the requirement for a hearing.[16] Alexanderson contends that Detective Collins recklessly or deliberately misled the issuing magistrate by stating that this was a controlled buy, and that he therefore would have been successful had his attorney sought a Franks hearing. But it is not clear from this record that this was not a controlled buy, let alone that Detective Collins recklessly or deliberately made a false statement in seeking the search warrant. Assuming without deciding that a `controlled buy’ requires that officers actually observe the informant enter and exit the door of the residence, it is not entirely clear from the record whether any of the officers could see Steward enter and exit Alexanderson’s house. None of the officers who testified at trial saw Steward enter and exit, but not all of the officers who had the house under surveillance testified at trial. Detective Collins testified that Agent Rick Pattee communicated via radio that Steward was at the residence. It is possible that either Agent Pattee or some other officer did in fact observe Steward going in and out of the house. And even if they did not, we cannot say from this record that Detective Collins deliberately or recklessly provided false information or omitted material information to the issuing magistrate, particularly given the radio communication he received from Agent Pattee.
In his personal restraint petition, Alexanderson also contends that he asked his trial attorney to renew the motion to suppress, and argues that his attorney was ineffective for failing to comply with this directive. But the case he cites in support of this contention,[17] addresses duties of an attorney for purposes of a civil malpractice claim, and has no bearing in a claim of ineffective assistance in the criminal context.
We affirm Alexanderson’s conviction and deny his personal restraint petition. For the Court:
GROSSE and BAKER, JJ., concur.
(1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723
(1964).