      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                  No. 73420-2-1

                      Respondent,                     DIVISION ONE

               V.

ANTHONY MARK YOUNGS,                                  PUBLISHED

                      Appellant.                      FILED: July 3, 2017



       Cox, J. — The issue here is whether the magistrate issuing the warrant for

a blood draw had sufficient facts to make an independent decision that probable

cause supported the draw of Anthony Youngs's blood. We hold that the affidavit

is insufficient for this purpose. Accordingly, we reverse and remand for further

proceedings in the district court.

       In the early morning hours of May 15, 2013, a magistrate issued a warrant

authorizing the withdrawal of a blood sample from Youngs. A state patrol trooper

had arrested Youngs on suspicion of driving while under the influence of

intoxicants. The magistrate issued the warrant based on the Affidavit in Support

of Search Warrant for Evidence of a Crime, to wit: Driving While Under the
No. 73420-2-1/2

Influence, RCW 46.61.502 dated May 15, 2013.1 This affidavit is a largely

preprinted form to which the affiant may add information.

       Following the blood draw, the State charged Youngs with driving while

under the influence, contrary to RCW 46.61.502. Youngs moved to suppress

evidence obtained under authority of the warrant. The district court denied the

motion. Youngs then agreed to a stipulated bench trial based on the police

report and blood alcohol report. The district court found Youngs guilty and

sentenced him.

      Youngs sought review in the superior court. The RALJ court affirmed

based on the content in the state trooper's affidavit.

       We granted Youngs's motion for discretionary review of the RALJ court's

decision.

                               PROBABLE CAUSE

       The question is whether the trooper's affidavit contains sufficient facts for

a magistrate to make an independent decision whether probable cause

supported issuance of this warrant. The State argues that the affidavit is

sufficient when read in a commonsense manner. Youngs disagrees. We agree

with Youngs.

       A magistrate may only issue a search warrant upon probable cause.2 The

warrant must be supported by an affidavit identifying the place to be searched




       1 Clerk's Papers at 40-43.

       2 State   v. Clark, 143 Wn.2d 731, 747,24 P.3d 1006 (2001).

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No. 73420-2-1/3

and the items to be seized.3 The affidavit must contain sufficient facts to

convince an ordinary person that the defendant is probably engaged in criminal

activity.4

          This court evaluates the relevant affidavit "'in a commonsense manner,

rather than hypertechnically, and any doubts are resolved in favor of the

warrant.m6 Thus, a "negligen[t] or innocent mistake" in drafting the affidavit will

not void it.6 And the magistrate may draw reasonable inferences from the stated

facts.7

          But inferences alone, without an otherwise "substantial basis" of facts are

insufficient.8 The magistrate must have acted in a "neutral and detached'

function" rather than serving as a "rubber stamp" for positions advanced by law

enforcement.6

          We normally review for abuse of discretion the issuance of a search

warrant.16 But because the superior court at a suppression hearing "acts in an


         the Matter of the Search Warrant for 13811 Highway 99, Lynnwood,
          3 In
Wash., 194 Wn. App. 365, 378, 378 P.3d 568(2016).

          4   Id.

          5   Id. (quoting State v. Lyons, 174 Wn.2d 354, 360, 275 P.3d 314 (2012)).

        In re Yim, 139 Wn.2d 581, 597, 989 P.2d 512(1999)(internal quotations
          6
omitted).

          7 Id. at 596.


          8   Lyons, 174 Wn.2d at 363.

       Id. at 360 (internal quotation marks omitted)(quoting Aguilar v. Texas,
          9
378 U.S. 108, 111, 84 S. Ct. 1509, 12 L. Ed. 2d 723(1964)).

          19 State   v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008).

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No. 73420-2-1/4

appellate-like capacity," we review de novo its decision on the validity of a search

warrant.11 In reviewing the warrant and affidavit, this court only considers

"information before the magistrate at the time the warrant was issued."12

       The facts alleged must not be conclusory. The affidavit may provide

summary statements so long as it also expresses the facts and circumstances

underlying that summary. State v. Stephens13 and State v. Lyons14 are
                                     •
instructive in this regard.

       In Stephens, James Stephens was convicted of manufacturing a

controlled substance, namely growing marijuana.15 On appeal, he argued that

evidence procured under the warrant to search his residence and vehicle should

have been suppressed.16 Specifically, he challenged the sufficiency of the

supporting affidavit.17

       Police officers already knew a marijuana patch existed nearby that had

gone unwatered for some time." They set up a stakeout during which they




       11   Id.

             v. Stephens, 37 Wn. App. 76, 80, 678 P.2d 832, review denied,
       12 State
101 Wn.2d 1025 (1984).

       13 37 Wn. App. 76, 678 P.2d   832(1984).

       14   174 Wn.2d 354, 275 P.3d 314 (2012).

       15 37 Wn. App. at 78.

       16   Id.

       17   Id.

       18   Id. at 77.

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No. 73420-2-1/5

observed Stephens ride a motorcycle towards the area.19 But it later became

clear that from their position, they could not see the marijuana patch or

Stephens.2° They heard the motorcycle roll away and they returned to the site to

find that the plants had been watered.21

       In an affidavit, one officer declared that he had "observed" Stephens water

the plant.22 The affidavit did not describe how this was so. Division Three of this

court analyzed this statement and held it insufficient.23

       The court determined that the word 'observed' could constitute a "1-word

summation of facts known to the officer."24 As such, the statement was

conclusory.25 Although this might have been innocent "neglect[]," the court found

that it still "usurped the function of the detached and impartial magistrate."26

Thus, the court concluded that the facts and circumstances underlying this

conclusory summation should have been listed in the affidavit and, without them,

such a statement was insufficient to support probable cause.27



       19   Id.
       20   id.

       21   Id.

       22 Id. at 78.

       23   Id. at 79.

       24   Id.

       25   Id. at 79-80.

       26 Id. at 80.

       27 Id.


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No. 73420-2-1/6

       Lvons28 is also instructive. There, police obtained and executed a search

warrant upon Patrick Lyons based on a confidential informant's reported

observation that marijuana was growing indoors at Lyons's residence.29 The

affidavit stated that police received the tip "[Mithin the last 48 hours."3°

       Upon review, the supreme court found it ambiguous whether the "[Mithin

the last 48 hours" referred solely to when police received the tip or also to when

the informant observed the marijuana.31 The State argued that the affidavit,

properly read, alleged both events occurred within that timeframe.32 But the

court concluded that was logically impossible. "There was necessarily a time gap

between the observation and the contact."33 Such drafting made it "impossible

for a neutral magistrate" to determine the extent of that gap and whether the

informant's tip had gone stale.34

       The relevant allegations in an affidavit must also be specific to the facts of

the case and not require that the magistrate rely upon the police officer's




       28   174 Wn.2d 354.

       29   Id. at 357.

       39   Id.

       31   Id. at 363.

       32   Id.

       33   Id.

       34   Id.

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No. 73420-2-1/7

expertise regarding general criminal behavior. State v. Thein35 is helpful in this

regard.

       Police investigated Stephen Thein for possessing marijuana with intent to

deliver.36 In the course of that investigation, they applied for a warrant to search

Thein's home.37 They attached two affidavits of probable cause to the

application.35

       These affidavits both contained "generalized statements of belief

regarding the common habits of drug dealers" in order to draw a nexus between

Thein, the alleged drug dealer, and his residence.39 These statements rested

entirely on the affiant officer's "experience and training, as well as the corporate

knowledge and experience of other fellow law enforcement officers" as to the

general practice of drug dealers.°

       The supreme court held these statements insufficient to support probable

cause.41 To conclude otherwise, it suggested, would amount to a per se rule

automatically establishing probable cause to search the residence of any person




       35   138 Wn.2d 133, 977 P.2d 582(1999).

       36   Id. at 136.

       37   Id.

       38   Id.

       39   Id. at 138.

       40 Id. at 138-39.

       41   Id. at 151.

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No. 73420-2-1/8

found to likely be a drug dealer.42 Instead of just "general conclusions" and

"[b]lanket inferences," the court explained that "specific facts" were necessary.43

Only then could the magistrate draw reasonable inferences, not from

generalities, but from specific facts in the affidavit." Thus, the warrant was

insufficient.45

        Here, we focus on the affidavit that was before the magistrate and the

RALJ court. It is a largely preprinted form to which there are typed insertions.

We presume the state patrol trooper added these insertions. Material portions of

this affidavit follow.

       Both the face page of the affidavit and its second page state that the

alleged traffic infraction for which the warrant was sought was "Driving While

Under the Influence, RCW 46.61.502.'46 Notably, the boxes on'both of these

pages that are next to the text stating "Physical Control of Vehicle While Under

the Influence, RCW 46.61.504" were left unchecked by the state patrol trooper.47

       The next material provision in this affidavit states that the trooper based

his belief:

       upon information acquired through personal interviews with
       witnesses and other law enforcement officers, review of reports and


       42   Id. at 141.

       43   Id. at 145, 147.

       44   Id. at 149.

       45   Id. at 151.

       46   Clerk's Papers at 40-41.

       47   Id.

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No. 73420-2-1/9

       personal observations, said information being as further described
       herein—



      I was trained at the Washington State Patrol Academy; I received
      extensive training in the detection and recognition of DUI's,
      including a wet lab. I have worked on my own for approximately 2
      years and have arrested about 100 DUI drivers.[48]

      The trooper next states the following regarding "the initial contact" with

Youngs:

      "[Youngs] was involved in a one car rollover collision. He
      was transported to Evergreen Hospital."(491

      The trooper states the following additional factual information:

       A sample of Anthony Youngs 's blood, if extracted within a
       reasonable period of time after he/she last operated, or was in
       physical control of, a motor vehicle, may be tested to determine
       his/her current blood alcohol level and to detect the presence of
       any drugs that may have impaired his/her ability to drive. This
       search warrant is being requested 2 hours 15 minutes after
        Anthony Youngs ceased driving/was found in physical control
       of a motor vehicle.[501

      Youngs does not challenge the sufficiency of the affidavit that states facts

why the trooper believed that Youngs was under the influence of intoxicants

and/or drugs. That portion of the affidavit states:

       The facts supporting my belief that Anthony Youngs is under the             ,
       influence of intoxicants and/or drugs are as follows:

       Heavy odor of intoxicants on his breath and person, Anthony
       admitted to having approximately four beers. I observed his eyes
       to be bloodshot and watery. I observed his speech to be slurred


       48   Id. at 41.
       49 Id.


       88   Id. at 42.

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No. 73420-2-1/10

       and hard to understand at times. I observed 6 of 6 clues on the
       horizontal gaze nystagmus test. Anthony was strapped to a
       backboard and therefore unable to perform further certified tests.
       Anthony provided a PBT sample of .114.[511

       Accordingly, we focus, as do the parties, on whether there are sufficient

facts to establish that Youngs was driving the car involved in the "one car rollover

collision."52

       First, the affidavit states that Youngs "was involved in a one car rollover

collision. He was transported to Evergreen Hospital."53 This statement fails to

tell us whether Youngs was driving, as he correctly argues in his brief. It is like

the statements in Stephens and Lyons. Like in Stephens, it is merely a

"summation of facts known to the officer."54 And like in Lyons, it fails to specify

important details. For example, it leaves unexplained how he was "involved." If

he was observed driving, the affidavit could say so and explain the facts

supporting that statement. But it does not.

       The RALJ court appears to have recognized these shortcomings. It

presumed that an officer would not have done a breath test and other sobriety

tests on a pedestrian. It presumed an officer might have done so on a

passenger. The court also cited the undisputed symptoms of Youngs's

intoxication that we stated previously in this opinion.




       51   Id. at 41.

       52   Id.

       53 Id.

       54 37 Wn. App. at 79.


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No. 73420-2-1/11

       But these presumptions do little to assist us in determining whether the

affidavit contains sufficient facts to allow a magistrate to make an independent

decision whether probable cause exists to show Youngs was driving. Rather, the

affidavit must have sufficient facts to support such a determination underlying

probable cause. This affidavit lacks such facts.

         Second, the affidavit also states, in largely preprinted text, when the

search warrant was being requested in relation to certain matters. Specifically,

it states it was "being requested   2 hours 15 minutes after Anthony

Youngs ceased driving/was found in physical control of a motor

vehicle. 55

       The RALJ court concluded that the "was found in physical control of a

motor vehicle" text that follows "ceased driving/" was a "factual statement as

opposed to a conclusion of law" by the state trooper.56 The RALJ court

combined this "factual statement" with another statement in the affidavit, that

Youngs "was involved in a one car rollover collision."57 In doing so, the RALJ

court concluded that the magistrate properly determined there was probable

cause.58 Based on this, the RALJ court affirmed the conviction and remanded to

the district court for further proceedings.59


       55   Clerk's Papers at 42(emphasis added).

       56   Id. at 4.

       57 Id. at 41.

       58   Id. at 7(emphasis added).

       59   Id. at 8(emphasis added).

                                                11
No. 73420-2-1/12

       One problem with this approach to this affidavit is that the preprinted

language in the form—"ceased driving/was found in physical control of a motor

vehicle"—suggests that it is intended to apply to two different crimes. One crime

is "Driving While Under the Influence, RCW 46.61.502.1'6° The other is

"Physical Control of Vehicle While Under the Influence, RCW 46.61.504."61 We

say this because this is the most natural and commonsense reading of this

affidavit as a whole.

       But when we consider these two different phrases in conjunction with the

face page and the second page of this affidavit, both of which state the alleged

infraction was "driving while under the influence," we must conclude that the

state trooper did not intend the "physical control' text to apply to this case.

There is nothing that we see in the affidavit that would suggest this latter intent.

       But even if we assume that the RALJ court correctly concluded that the

"physical control' text was a factual statement, we must disagree with the

court's conclusion. This statement is still conclusory, as in Stephens and the

other cases we have discussed.

       Unlike the act of driving, which may be readily observed, "physical control"

is a conclusion drawn from other facts. For example, a police officer may reach

this conclusion based on the defendant's proximity to the vehicle, possession of

keys to it, or similar observable circumstances. Because the magistrate must




       60   Id. at 40(emphasis added).

       61   Id.(emphasis added).

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No. 73420-2-1/13

independently determine whether probable cause exists, he or she cannot

simply accept such a conclusion without supporting allegations.

       Thus, the statements in the affidavit are conclusory, general, and

insufficient to support probable cause that Youngs was driving the vehicle.

       The State argues that the trooper negligently but innocently omitted a

detailed factual basis for its conclusions that Youngs was driving. It relies on In

re Personal Restraint of Yim.62 Its reliance is misplaced.

       That companion case in the Yim decision concerned the sufficiency of an

affidavit supporting a search warrant for the home and vehicles of Donald and

Penny Yokley.63 The State had charged Donald with the unlicensed sale of

explosives.64

       The affidavit stated that Donald was under investigation for "Illegal

Possession of Explosive Devices."65 It detailed how an undercover police officer

had placed an order for $7,000 of "illegal explosive devices."66 After the officer

placed the order, Donald was seen taking a plastic bag and white box from his

apartment to his car, and driving to his wife's workplace to switch cars, before

proceeding to a pickup spot arranged with the undercover officer.67 There, he



       62 139 Wn.2d       581, 989 P.2d 512(1999).

       63 Id. at 587.


       64   Id. at 584.

       65   Id. at 595.

       66   Id.

       67   Id. at 595-96.

                                              13
No. 73420-2-1/14

exchanged the boxes with the officer for $7,000, expressing his hurry and

nervousness.68 He was arrested there.69

       Donald contested the sufficiency of the supporting affidavit for the warrant

because it did not "specifically state that Donald Yokley did not possess an

explosives license."70 But the other facts presented in the affidavit, the court

reasoned, allowed the magistrate to "easily draw this inference."71

       This case is different. Whereas the police in Yim omitted a single, if

important fact, they alleged a detailed narrative showing the illicit possession and

sale of explosives to an undercover police officer. An innocent explanation for

these facts would be implausible. By contrast, the affidavit in this case states

that Youngs was intoxicated, was "involved in a car accident," and taken to a

hospital. What is missing is any showing that he was driving. Thus, the State's

reliance on Yirn is misplaced.

       To summarize, this affidavit is insufficient to allow a magistrate to make an

independent determination whether probable cause of driving under the

influence of intoxicants existed to support a warrant for a blood draw. To be

clear, the fault is not in the use of a largely preprinted form. Rather, it is the lack

of sufficient factual information in the completed form to establish probable cause

for the issuance of a warrant. For example, the factual information concerning


       68   Id. at 596.

       69   Id.

       70 Id. at 597.

       71   Id.

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No. 73420-2-1/15

intoxication is sufficient and unchallenged in this case. But the factual

information to establish driving is insufficient.

       We reverse and remand to the district court with directions to suppress the

evidence obtained by the warrant and for such further proceedings that are not

inconsistent with this opinion.




WE CONCUR:




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