                                                              FILED 

                                                           AUGUST 28, 2014 

                                                     In the Office of the Clerk of Court 

                                                    WA State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                         )         No. 31448-1-III
                                             )
                    Respondent,              )
                                             )
             v.                              )         UNPUBLISHED OPINION
                                             )
RICHARD EDWARD FENTON,                       )

                                             )

                    Appellant.               )


      LAWRENCE-BERREY, J. - Following a jury trial, Richard Fenton was convicted of

two counts of delivery of a controlled substance within 1,000 feet of a school bus route

and one count of possession with intent to manufacture or deliver a controlled substance.

Mr. Fenton appeals, contending that the police lacked probable cause to obtain a search

warrant authorizing the search of his apartment and that the lower court erred by not

granting his motion to suppress. We conclude that the State established both bases of the

Aguilar-Spinelli1 test and affirm the lower court's denial of Mr. Fenton's motion to


       1 Aguilar v. Texas, 378 U.S. 108,84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964),
abrogated by Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983);
Spinelli v. United States, 393 U.S. 410,89 S. Ct. 584,21 L. Ed. 2d 637 (1969), abrogated
by Gates, 462 U.S. 213, but adhered to by State v. Jackson, 102 Wn.2d 432,688 P.2d 136
No. 31448-1-III
State v. Fenton


suppress.

      Mr. Fenton also asserts the trial court erred by imposing a variable term of

community custody and that the judgment and sentence contains a scrivener's error that

requires correction. We agree and remand to correct the judgment and sentence.

                                          FACTS

          On November 7, 2010, a Benton County Superior Court judge issued a search

warrant based upon the following information contained in Kennewick Police Department

Detective Juan Dorame's supporting affidavit:

      During the month of September (2010), CI # 10-027 provided information
      that Richard "Rick" Fenton (Thurman), is and has been selling narcotics in
      the city of Kennewick. The CI has provided information in the past that I
      have corroborated, based on my investigations, and I, as well as other law
      enforcement officers in our area, have deemed the Cl's information as
      credible. The information the CI has provided in the past has lead [sic] to
      several arrests and seizure of narcotics. This leads me to believe that the
      CI's information is credible and reliable. The CI has been in constant
      contact with me over the last several months.

      The CI stated that Richard Fenton has been selling Methamphetamine from
      a residence located at 108 N. Conway Street Apt. #B, Kennewick
      Washington, Benton County. I checked our local (I/Leads) database and
      located Richard Fenton living at 108 N. Conway Street #B. I showed the CI
      a photo of Fenton, without personal information attached to it and the CI
      confirmed that he was in fact the person that is selling Methamphetamine at
      the aforementioned location.



(1984).

                                            2
No. 31448-I-II1
State v. Fenton


      During the first three days of November (2010), I conducted a controlled
      buy of Methamphetamine from Richard Fenton at 108 N. Conway Street
      Apt. #B.

      During the controlled buy, I (along with other detectives from the
      Kennewick Police Department) met the CI at a pre-determined location.
      The CI was searched before and after the controlled buy and found to be
      clear of any drugs, money, or contraband. Before the buy I listened while
      the CI called Richard Fenton ... and arranged to purchase
      Methamphetamine. I provided the CI pre-recorded buy funds (that were
      used to purchase the Methamphetamine) and the CI was kept under constant
      surveillance as the CI entered and exited 108 N. Conway Street #B. After
      the controlled buy, the CI provided us a small clear plastic zip lock baggie
      containing purported Methamphetamine that was purchased from Richard
      Fenton (Thurman). After the controlled buy, the purported
      Methamphetamine was field tested and it tested presumptive positive for
      Methamphetamine.

      Based on the aforementioned information I believe there is probable cause
      to believe that Richard Fenton (Thurman) is selling narcotics
      (Methamphetamine) from his apartment ( 108 N. Conway Street Apt. #B). I
      believe that the crime of Methamphetamine possessionJdelivery has and is
      occurring at 108 N. Conway Street Apt. #B and evidence of these crimes
      could be located at 108 N. Conway Street Apt. #B and also be located on
      his person.

Clerk's Papers (CP) at 22-23.

      When officers served the warrant at Mr. Fenton's apartment, they found

methamphetamine in several separate bags, packaged marijuana, drug paraphernalia, drug

ledgers, and scales. The State charged Mr. Fenton with two counts of delivery of a

controlled substance (methamphetamine) within 1,000 feet of a school bus route and one



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No.31448-1-III
State v. Fenton


count of possession with intent to manufacture or deliver a controlled substance.

       Mr. Fenton moved to suppress the evidence, arguing the search warrant was

invalid because the affidavit failed to establish the informant's reliability. The trial court

denied the motion, concluding the affidavit was legally sufficient to establish the

informant's reliability. The jury found Mr. Fenton guilty as charged. At sentencing, the

court imposed a standard range sentence and a variable term of community custody.

                                        ANALYSIS

       Probable Cause. Mr. Fenton attacks the validity of the warrant on the ground that

the informant was unreliable. Specifically, he maintains that the warrant fails to set forth

facts that establish the informant's veracity and basis of knowledge as required by Spinelli

v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969) and Aguilar v.

Texas, 378 U.S. 108,84 S. Ct. 1509,12 L. Ed. 2d 723 (1964).

       We review issuance of a search warrant for an abuse of discretion. State v.

Maddox, 152 Wn.2d 499,509,98 P.3d 1199 (2004). In so doing, we give great deference

to the issuingjudge's determination of probable cause. State v. Chenoweth, 160 Wn.2d

454,477, 158 P.3d 595 (2007). Accordingly, we will generally resolve doubts about the

existence of probable cause in favor of the validity of the search warrant. Both on appeal

and before the trial court at the suppression hearing, review of the issuance is "limited to



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No. 31448-1-III
State v. Fenton


the four comers of the affidavit supporting probable cause." State v. Neth, 165 Wn.2d

177,182, 196 P.3d 658 (2008). Moreover, although we defer to the issuing judge's

determination, the trial court's assessment of probable cause on a motion to suppress is a

legal conclusion we review de novo. State v. Chamberlin, 161 Wn.2d 30, 40-41, 162

P.3d 389 (2007).

       Probable cause exists if the State sets forth facts and circumstances which, if

believed, lead a neutral and detached person to conclude that more probably than not,

evidence of a crime will be found if a search takes place. In re Det. ofPetersen, 145

Wn.2d 789, 797,42 PJd 952 (2002).

       When determining probable cause to arrest on an informant's tip, Washington

courts apply the Aguilar-Spinelli test. State v. Salinas, 119 Wn.2d 192, 199-200, 829

P .2d 1068 (1992). Under that test, the State must establish the informant's: (1) basis of

knowledge and (2) veracity and reliability. State v. Tarter, 111 Wn. App. 336, 340, 44

PJd 899 (2002). "Both the reliability of the manner by which the information was

acquired and the reliability of the informant must be shown in an effort to determine

present reliability." State v. Casto, 39 Wn. App. 229, 234-35, 692 P.2d 890 (1984)

(emphasis in original). Conclusory assertions of reliability will not suffice. Id.




                                              5

No. 31448-1-111
State v. Fenton


       Mr. Fenton first challenges the infonnant's veracity. He argues the statements in

the affidavit failed to provide infonnation about the infonnant's criminal history or details

of her involvement in previous controlled buys. He argues, "[t]he detective's conc1usory

statement hardly conveys a 'track record' of supplying reliable specific infonnation that

may support a search warrant." Br. of Appellant at 9. He also maintains that under State

v. Steenerson, 38 Wn. App. 722, 688 P.2d 544 (1984), police-initiated buys do not

demonstrate an infonnant's reliability. Relying on that case, he argues that because the

affidavit does not establish that the infonnant initiated the controlled buy, "[t]he

infonnant's purchase of suspected methamphetamine suggested only her cooperation and

indicates very little about [her] credibility and ability to accurately report facts while not

under supervision." Br. of Appellant at 10-11.

       Mr. Fenton's reliance on Steenerson is misplaced. While he is correct that police-

initiated buys alone do not establish veracity, it is well settled that the veracity prong may

be satisfied if the infonnant has a track record of providing accurate infonnation to the

police. State v. Jackson, lO2 Wn.2d 432, 437,688 P.2d 136 (1984); Salinas, 119 Wn.2d

at 200. In State v. Fisher, the court stated, "it is almost universally held to be sufficient if

infonnation has been given which has led to arrests and convictions." State v. Fisher, 96

Wn.2d 962,965,639 P.2d 743 (1982).



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No. 31448-1-III
State v. Fenton


       Moreover, a properly conducted controlled buy makes an informant a credible

source of information. 1 WAYNE LAFAVE, Search & Seizure § 3.3(b) at 512 (1978);

Casto, 39 Wn. App. at 234-35. In Casto, the informant reported to police that he could

purchase drugs in the defendant's residence. Police then arranged for the informant to

make a purchase with marked bills and searched the informant for drugs before the

transaction. Police maintained surveillance on the informant before he entered the

residence. Upon searching him when he emerged, police found drugs. In concluding

these facts established the informant's reliability, the court explained:

       In a "controlled buy," an informant claiming to know that drugs are for sale
       at a particular place is given marked money, searched for drugs, and
       observed while sent into the specified location. If the informant "goes in
       empty and comes out full," his assertion that drugs were available is proven,
       and his reliability confirmed. Properly executed, a controlled buy can thus
       provide the facts and circumstances necessary to satisfy both prongs of the
       test for probable cause.

Casto, 39 Wn. App. at 234 (emphasis in original). Thus, under Casto, the credibility

prong is established through the showing that the confidential informant had provided

police with accurate information in the past.

       Mr. Fenton also challenges the informant's basis of knowledge, contending the

affidavit fails to establish that the informant had any firsthand dealing with Mr. Fenton or

had been inside his apartment. Generally, the "basis of knowledge" prong requires a



                                                7

No. 31448-1-II1
State v. Fenton


showing that the informant has personal knowledge or is passing on firsthand

information. Jackson, 102 Wn.2d at 437. Casto disposes of Mr. Fenton's contention. As

just discussed, under Casto, a showing of a properly executed controlled buy satisfies the

basis of knowledge prong. Here, the controlled buy was similar to the one in Casto: the

informant was "searched before and after the controlled buy," given prerecorded buy

money, "kept under constant surveillance" as she entered and exited Mr. Fenton's

apartment, and turned over a controlled substance after the buy.

       Under these facts, the affidavit meets both prongs of the Aguilar-Spinelli test.

Consequently, the trial court correctly denied Mr. Fenton's suppression motion.

       The showing of probable cause was sufficient under the Aguilar-Spinelli test.

Accordingly, the trial court properly denied the motion to dismiss.

       Sentencing Issues. Mr. Fenton next argues that the trial court sentenced him to a

variable range of community custody in violation ofRCW 9.94A.701 because the length

of his community custody depended on the amount of early release time he earned. The

State concedes error. We accept the State's concession and remand for a correction of

Mr. Fenton's sentence consistent with this opinion.

      A trial court may only impose a sentence authorized by statute. In re Pers.

Restraint olCarle, 93 Wn.2d 31, 33, 604 P.2d 1293 (1980). We review the legality ofa


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No. 31448-1-II1
State v. Fenton


sentence de novo. In re Postsentence Review a/Leach, 161 Wn.2d 180, 184, 163 P.3d

782 (2007). Under RCW 9.94A.701, "a court may no longer sentence an offender to a

variable term of community custody contingent on the amount of earned release but

instead, it must determine the precise length of community custody at the time of

sentencing." State v. Franklin, 172 Wn.2d 831, 836,263 P.3d 585 (2011).

       Here, the court imposed the following sentence of community custody:

       (A) The defendant shall be on community placement or community custody
       for the longer of:
       (1) the period of early release. RCW 9.94A.728(1)[,] (2); or
       (2) the period imposed by the court, as follows:
       Counts one, two and three for 12 months.

CP at 123.

       Under Franklin, the court could only sentence Mr. Fenton to a finite community

custody term of 12 months. Accordingly, we remand to the trial court to issue a corrected

judgment and sentence consistent with this opinion.

      Mr. Fenton also contends that the judgment and sentence contains a scrivener's

error, pointing out that it states that the date of count 2 was November 1,2010, whereas

the evidence established that the date of the offense was November 5, 2010. The State

again concedes error. We accept the State's concession. The remedy for clerical or

scrivener's errors in judgment and sentence forms is remand to the trial court for


                                             9
No. 31448-1-III
State v. Fenton


correction. In re Pers. Restraint ofMayer, 128 Wn. App. 694, 701, 117 P.3d 353 (2005)

(citing CrR 7.8(a)); see RAP 7.2(e).

       The trial court erred by imposing a variable term of community custody and

incorrectly stating the date of count 2. We, therefore, affirm the convictions but remand

to the trial court to issue a corrected judgment and sentence consistent with this opinion.

       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. 



                                          Lawrence-Berrey, J.

WE CONCUR: 





                                          Fearing, J.




                                             10 

