No. 32009-6-IIThe Court of Appeals of Washington, Division Two.
Filed: April 12, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Jefferson County. Docket No. 02-1-00110-1. Judgment or order under review. Date filed: 07/13/2004. Judge signing: Hon. Anna M. Laurie.
Counsel for Appellant(s), Peggy Ann Bierbaum, Attorney at Law, 686 Lake St Ste 200, Port Townsend, WA 98368-2282.
Counsel for Respondent(s), Shane Richard Seaman, Attorney at Law, PO Box 1220, Port Townsend, WA 98368-0920.
MORGAN, J.
Denise Jeane Jarrells appeals convictions for unlawful possession of ephedrine and unlawful possession of methamphetamine. We affirm.
On June 1, 2001, Detective David Miller conducted a controlled drug buy using an informant. The informant successfully purchased drugs at a residence located at 2901 Center Road. The informant told Miller that someone named `Denise’ was present and observed the drug transaction. Miller later confirmed that Denise Jarrells was renting the residence at the time of the controlled buy.
On June 22, 2002, Miller received a letter from Donna Davis, a prisoner in the Jefferson County Jail. Davis stated that Jarrells and Don Perkinson were methamphetamine dealers.
On September 6, 2002, Miller arrested David Love on outstanding warrants. Miller made the arrest at 1171 Old Gardiner Road, where Love resided with Jarrells. About two years earlier, Love had been arrested for manufacturing methamphetamine and had `plead guilty to possession of ephedrine or sudoephedrine [sic] with inten[t] to manufacture methamphetamine.’[1]
On October 8, 2002, Miller and Detective Lightfoot arrested Donald Perkinson at 485 Diamond Point Road. After obtaining Perkinson’s consent to search the trailer in which he resided, the detectives found a quarter pound of methamphetamine, scales, packaging materials, muriatic acid, and salt.
On October 16, 2002, Lightfoot and another detective interviewed Denise Davis at 485 Diamond Point Road. She was the owner of that property, and she had permitted Perkinson to reside there in his trailer. The detectives asked her about her involvement with methamphetamine. She admitted she was addicted to it and that she and her husband had purchased it from Jarrells at Jarrells’ residence on Old Gardiner Road. Davis related that she had been at Jarrells’ the day before, and the place had smelled really bad. Lightfoot asked if the smell was `acidic,’ and Davis agreed that it was. Davis related that Jarrells, David Love, Justin Craig, Reggie Davis, Matt Hall, and Terri Hodges had been operating a methamphetamine lab at Jarrells’ residence `off and on since June’ of 2002.[2] Davis related that she kept sodium hydroxide on hand for making soap, that it is an ingredient of methamphetamine, and that Jarrells had bought some of it and might have stolen more. Davis related that David Love, often called `Woody,’ had brought oxyacetylene hoses to her, and that she had burned them. Davis related that the people from Jarrells’ residence had dumped `lab waste’ (including `Sudafed boxes, or packages of Sudafed, glass jars with a yellowish powder on them[,]’ and `[c]offee filters with a whitish-yellowish powder and a cooler with unknown items inside’)[3] on her property four different times, the most recent being about three weeks before, and that she had burned it. Lightfoot had investigated a previous incident in which Davis had provided accurate and credible information that had led to the arrest and conviction of her ex-husband for breaking into her home and assaulting several people with a gun and pepper spray.
On October 17, 2002, several officers appeared before a judge, testified as set forth above, and requested a search warrant for 1171 Old Gardiner Road. In addition, Detective Fuchser described how sodium hydroxide is used in the process of manufacturing methamphetamine, that the material Davis had seen and burned was consistent with waste from that process, and that the process causes `an overwhelming chemical odor’ that would `not be inconsistent’ with `a strong acid odor.’[4] The judge issued a warrant for `[t]he residence and premises located at 1171 Old Gardiner Road, Jefferson County, Washington, including but not limited to a single-wide, white and green trailer, all outbuildings, vehicles registered to or owned by Denise Jarrells, David Love, Justin Craig, or Reggie Davis, and the curtilage.’[5] Instead of listing the items to be seized, however, the warrant said `see attached list’ and apparently included that list on an appended page titled `Addendum to Search Warrant.’[6]
On October 21, 2002, the warrant was served and evidence of a meth lab was discovered. On October 22, 2002, the State charged Jarrells with manufacturing methamphetamine.
Before trial, Jarrells moved to suppress, arguing that the search warrant was not supported by probable cause and was overly broad. At the end of the hearing, the trial court found in writing that `[t]he `attached list’ and the `addendum’ are the same document[;]’ that `[t]he document entitled `Addendum’ is in fact a list of items to be seized as part of a methamphetamine lab[;]’ and `the `Addendum’ is the `attached list’ referred to in the Affidavit for Search Warrant and in the search warrant itself.’[7] Concluding that probable cause had existed and that the warrant had been sufficiently particular, the trial court denied the motion.
On June 11, 2004, Jarrells agreed to a bench trial on stipulated facts and was convicted of one count of unlawful possession of ephedrine[8] and one count of unlawful possession of methamphetamine.[9] After sentencing, she filed this appeal.
The first issue on appeal is whether the facts underlying the warrant show probable cause. An affidavit shows probable cause to search if it contains facts and circumstances from which a reasonable person could infer that criminal activity is probably occurring and that evidence of such activity can be found at the place to be searched.[10] If probable cause depends on an informant’s tip, the affidavit must show (1) that the informant has personal knowledge and (2) that the informant is probably being truthful,[11] provided that the second element can also be satisfied if the police independently corroborate the tip.[12] An informant is probably being truthful if he or she has provided reliable information before, or if the facts and circumstances under which he or she is presently acting reasonably support an inference that he or she is probably telling the truth.[13] Such facts and circumstances include, but are not limited to, whether he or she is acting against his or her own penal interest, whether he or she is named or confidential, and `the amount and kind of detailed information given by an informant.’[14]
In this case, Davis had personal knowledge of purchasing meth at Jarrells’ residence, of the smell that emanated from there, of providing sodium hydroxide to Jarrells, and of burning `lab waste.’ Davis had provided truthful information in a previous albeit dissimilar situation involving her ex-husband, she was acting against her own interest in making the disclosures that she did, she was named rather than confidential or anonymous, and her description of `lab waste’ was consistent with Fuchser’s. Accordingly, the affidavit showed probable cause.
The second issue is whether the search warrant particularly described the things to be seized.[15] Once a search warrant has issued, the defendant has the burden of showing that it is not valid.[16] A warrant is sufficiently particular even though it incorporates by reference a list of items to be seized, provided that the list is before the magistrate when the warrant issues.[17] The warrant in this case incorporated such a list and recites that the list was attached when the warrant issued. The defendant has not shown that this recitation was inaccurate, for the trial court did not so rule in its written findings of fact. Reviewing those findings for substantial evidence,[18] we conclude that the warrant particularly described the items to be seized.
The third issue is whether the warrant was overbroad because it authorized a search not just of the house, but also of outbuildings and vehicles. As far as the record shows, however, no evidence was seized from an outbuilding or vehicle, and no such evidence was admitted at trial. Accordingly, we decline to reverse on this basis.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and QUINN-BRINTNALL, C.J., Concur.
(1984), review denied, 103 Wn.2d 1022 (1985).
(1992).
(2002); State v. Anderson, 105 Wn. App. 223, 229, 19 P.3d 1094
(2001) State v. Jackson, 82 Wn. App. 594, 601-02, 918 P.2d 945
(1996), review denied, 131 Wn.2d 1006 (1997).
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