No. 21774-4-IIIThe Court of Appeals of Washington, Division Three. Panel Six.
Filed: December 16, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Grant County. Docket No: 02-1-00418-3. Judgment or order under review. Date filed: 01/24/2003.
Counsel for Appellant(s), Albert H Lin Grant County Prosecutors Office Law Justice Center PO Box 37 Ephrata, WA 98823-0037.
Counsel for Respondent(s) Edgar Rivera (Appearing Pro Se) 1121 Arlington Moses Lake, WA 98837.
Paul J. II Wasson, Attorney at Law 2521 W Longfellow Ave Spokane, WA 99205-1548.
KURTZ, J.
Moses Lake police officers obtained a search warrant for an apartment where they expected to find drugs and stereo equipment. The warrant also authorized the search of `[a] Hispanic male approximately 5’06’, Medium build who goes by the street name `Poncho’ and lives at the above address.’[1] While the officers were driving to the apartment complex, one of the officers radioed to his fellow officers that `Poncho’ was one of two men in a gold Nissan car that was pulling away from the apartment complex. The officers stopped the car, and eventually determined that Poncho was the passenger. The driver, Edgar Rivera, ultimately consented to a search and the officers discovered cocaine in his wallet. The court granted Mr. Rivera’s motion to suppress the evidence, reasoning that the warrant did not contain an adequate and reasonable description of the person and/or premises to be searched. The State appealed the court’s order granting the suppression motion. We affirm the order of the superior court.
FACTS
Moses Lake Police Officer Ramon Lopez requested a warrant to search a residence located at 4278 Grape Drive, apartment number 16. A citizen informant had told the officer that he had been to that residence, and witnessed someone trade stereo equipment for cocaine with a man called `Poncho.’ Clerk’s Papers (CP) at 56.
The court issued the search warrant. The command portion of the warrant authorized officers, in part, to search for:
1. Search said premises, vehicle, or person specifically described as follows:
The residence located at 4278 Grape Dr. in Moses Lake. This is a one level apartment complex white in color with blue trim. The apartment number #16 is located next to the door.
A Hispanic male approximately 5’06’, Medium build who goes by the street name `Poncho’ and lives at the above address.
CP at 58.
As the officers approached the apartment complex, a gold-colored Nissan began driving away from the parking lot. Officer Lopez testified that after he had received the warrant, but before they executed it, the citizen informant contacted him and told him that Poncho drove a gold-colored Nissan. He also was informed that Poncho would possibly be wearing a white tank top T-shirt, blue jeans, and a red baseball cap.
Officer Lopez contacted his fellow officers Dennis Duke and Dean Gaddis on the police radio, and told them to stop the Nissan because Poncho was in the car. However, he did not state whether Poncho was the driver or the passenger.
After they stopped the Nissan, Corporal Gaddis placed Jose Cambron Aguirre, the passenger, into custody in the back of his patrol car. After Corporal Gaddis placed Mr. Aguirre into the car, the officer asked if he had left any stolen property or drugs in the Nissan. He said he did not.
During a search of Mr. Aguirre, the officer discovered cocaine. After questioning him, the officers determined that he lived at 4278 Grape Drive, apartment number 16.
Corporal Gaddis then contacted Edgar Rivera. The officer asked Mr. Rivera if he had any guns, drugs, or weapons in his possession. He said he did not.
Corporal Gaddis asked both Mr. Rivera and Mr. Aguirre if either man went by `Poncho.’ They both denied using that name. Corporal Gaddis then asked if he could search Mr. Rivera, and Mr. Rivera said yes.
The officer searched Mr. Rivera, and discovered his wallet in a back pocket. Corporal Gaddis noted that one side of the wallet had a bulge in it. When he opened the wallet, the officer found a plastic baggie corner with white powder inside it. The white powder was cocaine.
Subsequently, the officers received a call over the radio that a little girl had identified the passenger in the car, Jose Cambron Aguirre, as Poncho.
Edgar Rivera was charged on June 13, 2002, with possession of cocaine. Mr. Rivera moved to suppress the evidence, based upon a theory that the officers had seized him when they began questioning him if he had any drugs, weapons, or guns on his person. Mr. Rivera argued that the officers had insufficient facts to establish a reasonable articulable suspicion that he had committed any crime and, therefore, his seizure was illegal. This motion was unsuccessful.
Mr. Rivera moved again to suppress the evidence. In this motion, he argued that the warrant failed to describe `Poncho’ with sufficient particularity. CP at 52. Because the description in the warrant was insufficient, the officers did not know which Hispanic male in the gold-colored Nissan to seize and search.
The court made the following conclusions:
3.1 The contact and detention of the gold Nissan to execute the search warrant on `Poncho’ was proper.
3.2 The court finds that there was confusion and uncertainty among the MLPD officers as to which of the two occupants was `Poncho’ at the scene of the contact.
3.3 The officers could detain the defendant until the confusion was resolved. The officers were permitted to ask the defendant if he would consent to a search.
3.4 The scope and duration of the detention of the defendant was permissible.
3.5 However, the search warrant dated June 9, 2002 does not contain an adequate and reasonable description of the person and/or premises to be searched.
CP at 72. As a result, the court granted the motion to suppress and dismissed the case against Mr. Rivera with prejudice.
The State appeals.
ANALYSIS
The State appeals the trial court’s order granting Mr. Rivera’s motion to suppress and dismissing the case. The court concluded that while the contact and detention of the car was proper, the search warrant did not `contain an adequate and reasonable description of the person and/or premises to be searched.’ CP at 72.
Search warrants must be supported by probable cause and must particularly describe the place to be searched and the persons to be seized. U.S. Const. amend. IV; Const. art. I, sec. 7; CrR 2.3(c). The particularity requirement prevents general searches and eliminates the danger of unlimited discretion in the determination of what to seize. State v. Perrone, 119 Wn.2d 538, 545-46, 834 P.2d 611 (1992).
A warrant to search for a person is valid if `it describes the individual to be searched with such particularity he may be identified with reasonable certainty.’ State v. Rollie M., 41 Wn. App. 55, 58, 701 P.2d 1123 (1985). When the person is not named in the warrant, some other reasonable means of identifying him must appear in the warrant, such as details of appearance, occupation, peculiarities, or place of residence. State v. Martinez, 51 Wn. App. 397, 400, 753 P.2d 1011
(1988) (quoting Rollie M., 41 Wn. App. at 59-60).
In Martinez, the warrant directed Yakima police to search a designated address for two residents, both Mexican males, in their 20s, one 5’8′, the other 5’6′, one medium build, the other heavy, both with black hair. When the warrant was executed, six males were present, two of whom matched the descriptions in the warrant and appeared to live at the residence (one was found in the kitchen, the other just awaking).
This court held the warrant was sufficiently particularized to justify the search, noting that while the descriptions might have applied to many others in the community, this was `of no moment’ because the search was for persons who lived at that address. Martinez, 51 Wn. App. at 400.
In United States v. Espinosa, 827 F.2d 604 (9th Cir. 1987), a search warrant contained a description for a person that was limited to a Latin male, approximately 35 years of age, between 5’8′ and 5’10’, approximately 200 pounds, with black hair, and a full black beard. In that case, the affiant officer could recognize the individual based upon past experience and, thus, the court upheld the warrant.
Similarly, in State v. Malave, 127 N.J. Super. Ct. App. Div. 151, 316 A.2d 706, 707-08 (1974), a search warrant described a Puerto Rican male in his 40s about 5’6′ in height, medium build who lived at the specified address. The court upheld the warrant because the affiant officer who executed the warrant had previously seen the described individual and would be able to recognize him during the search.
This case is distinguishable from these cases. In this case, the warrant contained a vague description including gender, ethnicity, height and weight, medium build and a street name, along with the address at which he resided and where the police expected to find him. Such a description in Martinez was sufficient because the defendants were located at the address. This critical fact is missing in this case. In this case, the two men were driving away from the apartment complex, and thus were not located at the address stated in the warrant. Arguably, the vague description allowed the officers to stop any Hispanic male in the parking lot or out on the street area, and search him.
While Officer Lopez radioed that based upon a description from the citizen informant, he thought that Poncho was in the Nissan, the fact is that he had not seen Poncho before and would not be able to recognize him. And other than a tip on what clothing Poncho might be wearing that day — information that was not included in the warrant — he likely could not identify which man in the car was Poncho.
The court will uphold general descriptions in search warrants if additional identifying factors are present — such as the individuals sought are at a certain address, or when an officer is familiar with the individual and can identify him or her at the scene. This case lacked the additional identifying factors. In this case, the State cannot reasonably argue that based upon the description in the warrant and based upon the circumstances, that the warrant described Poncho with such particularity that he could be identified with reasonable certainty.
We affirm the order of the superior court.
The 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, J. SWEENEY, J., concur.