STATE v. ACRE, 21959-3-III (Wash.App. 6-22-2004)

Nos. 21959-3-III, 21960-7-III.The Court of Appeals of Washington, Division Three. Panel Six.
Filed: June 22, 2004. UNPUBLISHED OPINION

Appeal from Superior Court of Spokane County. Docket No. 02-1-01726-7. Judgment or order under review. Date filed: 04/07/2003. Judge signing: Hon. Kathleen M. O’Connor.

Counsel for Appellant(s), Donald G. Miller, Attorney at Law, 422 W Riverside Ave Ste 518, Spokane, WA 99201-0302.

David N. Gasch, Attorney at Law, PO Box 30339, Spokane, WA 99223-3005.

Counsel for Respondent(s), Frank Alan Grigaliunas, Spokane County Prose Atty Ofc, 1100 W Mallon Ave, Spokane, WA 99260-0270.

Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.

SWEENEY, A.C.J.

At issue here is the adequacy of a search warrant affidavit to establish probable cause. Specifically, the defendants challenge the sufficiency of the nexus alleged between the defendants’ criminal activity and their home. We conclude that the State’s factual showing provides the necessary nexus. We therefore affirm the convictions.

FACTS
Detective Dave Knechtel of the Spokane County Sheriff’s Office Clandestine Laboratory Team supplied the affidavit supporting a petition for a warrant to search Karen and Ronald Acre’s home for evidence of methamphetamine manufacture. The affidavit stated that, on three different dates in May 2002, Detective Knechtel saw Karen Acre purchase a total of six 96-count boxes of cold tablets containing pseudoephedrine. Pseudoephedrine is an essential reagent in the manufacture of methamphetamine. He saw her buy two more boxes on June 16, 2002. Ms. Acre visited a convenience store and then went home. The affidavit included the report of a known, reliable, citizen informant who saw Ms. Acre buy two boxes of match books containing red phosphorus. Red phosphorus is another essential ingredient of methamphetamine manufacture.

The warrant affidavit declared that Detective Knechtel had corroborated the preliminary evidence. The power company reported to him that the Acres had ordered company employees to shut off power at the pole in the event of a power shut off and not enter the property. And the Acres did not receive municipal garbage pick-up service. Detective Knechtel posited in his affidavit that meth manufacturers often show extreme concern for privacy and dispose of their own garbage to avoid detection by service providers. Detective Knechtel also noted that the State had successfully prosecuted Ronald and Karen Acre for methamphetamine offenses in 1996, after Detective Knechtel discovered a meth lab in their detached garage.

A court commissioner found the affidavit established probable cause to search for evidence of criminal activity on the residence premises. A warrant was issued to search the Acres’ persons, residence, outbuildings, and Karen Acre’s automobile. Police found evidence of methamphetamine manufacture.

The Acres challenged the sufficiency of the affidavit and moved to suppress the drug evidence. The court denied the motions to suppress, and trial was held on stipulated facts. The court found Karen and Ronald Acre guilty of manufacturing methamphetamine — Ronald as a principal, Karen as an accomplice.

DISCUSSION
A warrant to search premises must be based on probable cause. U.S. Const. amend. IV; Wash. Const. art. I, sec. 7. Probable cause requires a showing sufficient to persuade a neutral magistrate of “facts and circumstances sufficient to establish a reasonable inference’ that criminal activity is occurring or that contraband exists at a certain location.’ State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002) (quoting State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999)). Probable cause is usually established by affidavits setting forth the grounds for issuing the warrant. CrR 2.3(c). The affidavit supporting a search warrant must provide `sufficient facts for a reasonable person to conclude there is a probability the defendant is involved in the criminal activity.’ Vickers, 148 Wn.2d at 108. Probable cause must be based on more than suspicion or mere personal belief that evidence of the crime will be found on the premises searched. Id.

The magistrate’s decision to issue a warrant is an exercise of judicial discretion. Id. We, therefore, review the magistrate’s action for abuse of discretion. State v. Seagull, 95 Wn.2d 898, 907, 632 P.2d 44 (1981). And we accord the magistrate great deference. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). We view the sufficiency of the probable cause affidavit `in the light of common sense.’ Id. Individual facts that would not constitute probable cause standing alone may do so when taken together. State v. Garcia, 63 Wn. App. 868, 875, 824 P.2d 1220 (1992).

The Acres rely on State v. Thein. In that case, a marijuana grow was found at a residence along with evidence suggesting that Mr. Thein was distributing it. A warrant was issued to search Mr. Thein’s home, based solely on the speculative argument that, if a person is distributing drugs, incriminating evidence will likely be found in his home. Thein, 138 Wn.2d at 140. The Supreme Court reversed. It held that additional facts were required to establish a nexus between the criminal activity and the place to be searched. Id. at 151.

The facts here are different. The ongoing purchases of large amounts of methamphetamine precursors establish probable cause to suspect criminal activity going on somewhere. And the prior conviction for manufacturing in their home, the current no-entry order to the power company, the no pick-up order to the municipal trash service, and Ms. Acre’s return to the home immediately after buying the precursors add the required nexus between the criminal activity and the home.

The Acres’ prior convictions were not offered as evidence of current criminal activity; the current purchases of pseudoephedrine and red phosphorus were. Rather, the earlier meth lab on the premises was part of the showing of a nexus between the suspected activity and the place to be searched.

We affirm the convictions.

A majority of the panel has determined that 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.

SCHULTHEIS, J. and KURTZ, J., concur.