No. 21166-5-IIIThe Court of Appeals of Washington, Division Three. Panel Four.
Filed: April 17, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County Docket No: 02-1-00093-3 Judgment or order under review Date filed: 05/06/2002
Counsel for Appellant(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Counsel for Respondent(s), Susan Marie Gasch, Attorney at Law, P.O. Box 30339, Spokane, WA 99223-3005.
SWEENEY, J.
A warrant to search a specific home requires some showing of a nexus between the suspected criminal activity and the home. Here, police had a garbage bag containing the residue of a methamphetamine `cook’ operation and an envelope addressed to Shane H. Trump at an Otis Orchards address. The police also had evidence that Mr. Trump had purchased two bottles of iodine. But little tied any criminal activity to the place searched — an apartment at 727 West Glass in Spokane. We therefore affirm the decision of the trial judge suppressing the drug evidence here.
FACTS
The State charged Shane H. Trump with one count of manufacture of a controlled substance, methamphetamine. He moved to suppress all evidence resulting from the search of an apartment residence at 727 West Glass, Apartment 106, in Spokane. Mr. Trump challenges the sufficiency of the search warrant affidavit. Specifically, he alleges that the affidavit failed to establish a nexus between the West Glass address and any criminal activity. The affidavit for the warrant included the following facts.[1] The warrant was sought to investigate suspected manufacture of methamphetamine. On October 5, 2001, two employees of the City of Spokane Parks and Recreation Department discovered a black garbage bag in a trash barrel in Corbin Park. The bag had a strong chemical odor. One of the city employees opened the bag. It contained several empty containers of “HEET,” one empty acetone container, two empty pint iodine containers, one empty Coleman Fuel container, 16 empty blister packs of Sudafed cold tablets, and a towel stained red/orange and smelling of iodine. Sudafed contains the methamphetamine ingredient pseudoephedrine. Also in the bag were two pieces of mail addressed to Mr. Trump at 18910 East Buckeye Avenue, Otis Orchards, Washington. The city employees notified the police.
A records check disclosed that Mr. Trump had been arrested for possession of a controlled substance a year earlier, on October 1, 2000. At that time he had given his address as 727 West Glass. The State Department of Licensing showed Mr. Trump’s address as 727 West Glass, Apartment 106. The records of Avista utilities listed Mr. Trump as the power subscriber at 727 West Glass, Apartment 6 (not 106). On October 9, 2001, Detective Larry Bowman received a fax from Aslin-Finch Feed and Pet, located at 9511 North Newport Highway, informing him that a person giving the name of Shane Trump with an address at 727 West Glass had purchased two pints of 7 percent tincture of iodine on October 1, 2001. He was driving a green late-60s Chevrolet pickup with Washington license A0365IL. Detective Bowman went to 727 West Glass and saw this same pickup. The pickup was registered to Thomas Konvick. Mr. Konvick had been arrested in 1996 for possession of methamphetamine.
The affidavit stated that Mr. Trump was the nexus between the crime of manufacture of methamphetamine and 727 West Glass, Apartment 106. First, the items found in the garbage bag in the park included mail addressed to Mr. Trump. Mr. Trump had previously given his address as 727 West Glass, Apartment 106. Mr. Trump was the power subscriber at 727 West Glass, Apartment 6. Second, 7 percent tincture of iodine was purchased by a person who identified himself as Shane Trump and drove a vehicle that was seen in the parking lot at 727 West Glass. Clerk’s Papers (CP) at 19.
The affidavit is supplemented with a detailed description of the red phosphorus methamphetamine manufacturing process. Besides the use of the items found in the garbage bag, the affidavit describes the use of iodine, which is commonly extracted from 7 percent tincture of iodine.
The magistrate issued a search warrant for 727 West Glass, Apartment 106. Police executed the warrant on October 18, 2001 and found drugs and manufacturing paraphernalia. The State charged Mr. Trump with manufacturing methamphetamine. He moved to suppress the fruits of the search warrant. The court granted the motion and dismissed the prosecution.
The State appeals the suppression and the dismissal.
DISCUSSION
The question presented is simply whether there is a sufficient nexus between the criminal activity, the place to be searched, and the items to be seized. And we agree with the trial judge that there is not.
Standard of Review.
We review the sufficiency of a warrant based on the information that was before the warrant magistrate. State v. Murray, 110 Wn.2d 706, 709-10, 757 P.2d 487 (1988). We review the warrant for abuse of discretion, giving great deference to the magistrate and resolving all doubts in favor of the warrant’s validity. In re Pers. Restraint of Yim, 139 Wn.2d 581, 595, 989 P.2d 512 (1999). And we interpret warrants in a `commonsense, practical manner, rather than in a hypertechnical sense.’State v. Perrone, 119 Wn.2d 538, 549, 834 P.2d 611 (1992). Probable Cause. Probable cause for the issuance of a search warrant requires facts sufficient to establish a reasonable inference that the suspect is probably involved in criminal activity and that evidence of the crime can be found at the place to be searched. State v. Cord, 103 Wn.2d 361, 365-66, 693 P.2d 81 (1985). And specific facts must establish a nexus between the items to be seized and the place to be searched. State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). This nexus between criminal activity and the place to be searched requires more than simply a showing that a suspected drug offender may be found at a particular address. Id. at 151; State v. Goble, 88 Wn. App. 503, 512-13, 945 P.2d 263
(1997); State v. Olson, 73 Wn. App. 348, 357, 869 P.2d 110 (1994) State v. Dalton, 73 Wn. App. 132, 140, 868 P.2d 873 (1994); State v. Rangitsch, 40 Wn. App. 771, 780, 700 P.2d 382 (1985).
The supposed nexus is too tenuous in this case to support the issuance of a warrant. Accepting the facts placed before the issuing magistrate in the affidavit at face value, the only nexus between criminal activity and the West Glass address was (a) a garbage bag containing the remnants of a methamphetamine cook tied to Mr. Trump and (b) that Mr. Trump bought iodine. Buying iodine was not illegal. Nothing connects illegal activity with the West Glass address. The court correctly suppressed the evidence and dismissed the prosecution. Affirmed.
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.
KATO, A.C.J. and SCHULTHEIS, J., concur.