No. 24445-8-III.The Court of Appeals of Washington, Division Three.
April 24, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-1-04131-8, Linda G. Tompkins and Tari S. Eitzen, JJ., entered August 23, 2005 and August 11, 2006.
Affirmed by unpublished opinion per Kulik, J., concurred in by Schultheis, A.C.J., and Kato, J. Pro Tem.
KULIK, J.
Jeremy A. Heward appeals his conviction for one count of possession of a controlled substance. Holding that the trial court did not err by finding the searched residence was a single dwelling, occupied by several people, rather than a multiple unit building, we affirm.
FACTS
Between February 16, 2004, and April 28, 2004, police conducted surveillance on an individual named Carl A. Urness for suspected marijuana sales. Mr. Urness was observed moving items, including a bed and dresser, to a home located at 3322 S. Division Street. Police saw Mr. Urness’s vehicle parked overnight on numerous occasions. Officers believed Mr. Urness kept marijuana at the home which they believed to be his current residence. However, information provided by the Spokane County Assessor’s office showed the home was owned by Jeremy Heward.
Police obtained a search warrant for 3322 South Division, Carl A. Urness’s person, and a 1998 silver Mitsubishi. The warrant allowed officers to enter the house to search for drugs/materials, records, and other evidence. The warrant did not name Mr. Heward, but approved a search for “(8) indication of occupancy, residency, and/or ownership of the premises described in the search warrant.” Clerk’s Papers at 60.
Officers found drug paraphernalia in Mr. Urness’s bedroom along with marijuana and psilocybin mushrooms. In the basement, officers found dominion and control papers for Mr. Heward, Ecstasy pills, and different containers with large amounts of marijuana.
Mr. Heward was charged with two counts of possession of a controlled substance with intent to deliver marijuana and Ecstasy. The information was amended to one count of possession of a controlled substance, Ecstasy. Mr. Heward moved to suppress the evidence obtained from the search.
Detective Jeff Barrington and Detective Kevin Langford testified at the suppression hearing. Detective Barrington described the residence as “a single family dwelling” with two to three bedrooms on the main floor plus a basement with bath, laundry, another possible bedroom, and plenty of storage space. Report of Proceedings (RP) at 4. He said the residence appeared to be a single family unit from the outside. The residence had a front and back door with no separate mailboxes to indicate multiple occupants. Detective Barrington said Mr. Urness’s room was unlocked and two basement closets were the only doors police had to force open.
Detective Langford said that none of the bedroom doors were locked nor did the doors have any names or identifiers on them to indicate multiple units. The fact that someone else lived at the residence was not evident until the search of the basement closets. Detective Langford said he did not know Mr. Heward was the legal owner of the home.
The court denied Mr. Heward’s motion to suppress. The court found the search warrant valid, because the affidavit established the necessary nexus between Mr. Urness’s criminal activity, the place to be searched, and the items to be seized. The court also found the residence was a community living residence with shared common areas instead of individual units and the doors to the bedrooms were unlocked when the search was executed.
Mr. Heward was convicted on stipulated facts. He now appeals.
ANALYSIS Did the trial court err in denying the motion to suppress?
Mr. Heward contends that the court erred in finding the residence was a single family dwelling, which allowed a search of the entire residence. Mr. Heward asserts the residence was a multiple occupancy unit. A search warrant for a multiple occupancy house will be deemed invalid for failure to describe the particular sub-unit to be searched. State v. Alexander, 41 Wn. App. 152, 153-54, 704 P.2d 618 (1985). Two exceptions to the rule exist: multiple living and community living. Id. at 154.
A court can apply the multiple living exception when the building looks like a “single-occupancy structure rather than a multiple-occupancy structure, and neither the affiant nor the investigating or executing officers knew [or] had reason to know . . . the building’s actual multiple-occupancy character until execution of the warrant was under way, the warrant is not defective for failure to specify a subunit within the named building.” Id. at 154 (citing State v. Chisholm, 7 Wn. App. 279, 499 P.2d 81 (1972)).
On the other hand, “the community living unit exception applies where several persons or families occupy the premises in common rather than individually, as where they share common living quarters but have separate bedrooms.” Alexander, 41 Wn. App. at 154-55. So, “[i]n the community living unit situation, the courts have held that a single warrant describing the entire premises so occupied is valid and will justify a search of the entire premises.” Id. at 155.
In Alexander, police submitted an affidavit for a search warrant on what they believed was a single occupancy home. Id. at 153. The interior and exterior indicated that it was a single family residence. As police searched the home, they found two other tenants lived there and shared common living facilities. Id. The bedrooms were open, unlocked and a nontenant was in the home. Id. at 156-57. In the bedroom they searched first, they found marijuana and identification belonging to one tenant. Id. at 153. In another bedroom, they found a controlled substance and identification belonging to the defendant. The court held that the community living exception applied to the warrant and admitted evidence found in the non-named tenant’s bedroom Id. at 153. The court reasoned that the defendant had access to all of the bedrooms and could have concealed evidence in any of them as well as the shared living areas. Id.
at 157.
Here, officers described the house as “a single family dwelling” with two to three bedrooms on the main floor plus a basement. RP at 4. From the outside, the home appeared to be a single family unit. Officers saw one front and one back door with no separate mailboxes to indicate multiple occupants. Detective Langford stated that none of the bedroom doors were locked nor did they have any names or identifiers on them to indicate multiple units. Detective Barrington said two basement closets were the only doors forced open. The fact that someone else lived at the home was not evident until the search of the basement closets. The community living exception was applicable. The court did not err by applying the exception to the warrant.
The trial court was correct in denying Mr. Heward’s motion to suppress by applying the community living exception to the warrant permitting a search of the entire home.
We affirm.
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.
SCHULTHEIS, A.C.J. and KATO, J. Pro Tem., concur.