                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                           June 7, 2016
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                               No. 47485-9-II

                               Respondent,

        v.

 JOHN R. GARDNER,                                             UNPUBLISHED OPINION

                               Appellant.

       WORSWICK, J. — Following a bench trial on a stipulated record, the trial court found John

Gardner guilty of unlawful possession of a controlled substance. Gardner appeals, asserting that

the trial court erred by failing to suppress evidence obtained following the execution of a search

warrant lacking probable cause in support. Gardner has also filed a statement of additional

grounds (SAG) for review, in which he contends that the judge presiding over his suppression

hearing made a disparaging remark toward him off the record. We affirm.

                                             FACTS

       Grays Harbor County Deputy Sheriff Kevin Schrader submitted an affidavit for a search

warrant that provided in relevant part:

       On [July, 24, 2013, t]he Grays Harbor County Drug Task Force (DTF) received a
       call from Aberdeen Officer Lampky, who advised that he had received a call from
       a concerned citizen (CC) who wished to remain anonymous. This CC advised him
       of suspicious drug activity a[t] 1400 West First Street in Aberdeen. The CC advised
       him that John R. Gardner . . . was living at the location and was selling drugs from
       the location. Officer Lampkey provided the DTF with the phone number of the CC
       who wished to report this information to the DTF.

       I called and spoke to the CC and asked him/her what they knew about the residence
       and the possible drug activity. The CC is known to me but wishes to remain
No. 47485-9-II


       anonymous for fear of retaliation. The CC has no criminal history, the CC is not
       working for monetary gain, and the CC is not working off any criminal charges.
       The CC is motivated by seeing Gardner’s criminal drug activities stop. The CC
       advised me that he/she had been at the residence within the past 5 days and that
       he/she had seen methamphetamine on a table in Gardner’s bedroom which she
       described as being an upstairs bedroom that was accessed by the first door on the
       right as you come to the top of the stairs. The CC advised that they had seen 4 to 5
       baggies of a white crystalline substance on the table in this room. The CC advised
       me that he/she knew what methamphetamine looked like because they used to have
       friends who used methamphetamine and he/she has also attended drug and alcohol
       classes that discussed methamphetamine. The CC advised that he/she has
       witnessed multiple people go into the residence and stay for short periods of time.
       The CC believes that Gardner is selling drugs from the residence.

Clerk’s Papers (CP) at 15-16.

       On July 26, 2013, the Grays Harbor District Court found probable cause to issue a search

warrant based on Schrader’s affidavit. On August 1, 2013, officers went to 1400 West First

Street to execute the search warrant. Officers entered the residence, located Gardner, and found

2 grams of suspected methamphetamine in his pants pocket. Officers also found approximately

77 grams of suspected methamphetamine in a hallway closet near Gardner’s bedroom. The

following day, the State charged Gardner with unlawful possession of a controlled substance.

       Gardner moved to suppress the evidence seized during the search, arguing that Schrader’s

affidavit failed to establish the reliability of the known, but unnamed, citizen informant. The

trial court denied Gardner’s suppression motion.1 Following a bench trial on a stipulated record,

the trial court found Gardner guilty of unlawful possession of a controlled substance. Gardner

appeals his conviction.



1
  Gardner does not assign error to the trial court’s apparent failure to enter findings of fact and
conclusions of law following the suppression hearing, as required under CrR 3.6(b). In any case,
the record is sufficient to review Gardner’s claim of error absent the entry of findings of fact and
conclusions of law. State v. Riley, 69 Wn. App. 349, 352, 848 P.2d 1288 (1993).


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No. 47485-9-II


                                            ANALYSIS

                        I. PROBABLE CAUSE TO ISSUE SEARCH WARRANT

       Gardner contends that Schrader’s affidavit failed to establish probable cause upon which

to issue a search warrant and, thus, the trial court erred by failing to suppress evidence seized

pursuant to the search warrant. Specifically, Gardner contends that the affidavit in support of the

search warrant failed to establish the reliability of the known but unnamed citizen informant. We

disagree and affirm Gardner’s conviction.

       We review de novo a trial court’s legal conclusion of whether an affidavit supported

probable cause to issue a search warrant. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658

(2008). But our de novo review gives great deference to the issuing judge’s assessment of

probable cause and resolves any doubts in favor of the search warrant’s validity. State v.

Chenoweth, 160 Wn.2d 454, 477, 158 P.3d 595 (2007).

       A search warrant may be issued only if the affidavit in support shows probable cause.

State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). When determining whether probable

cause existed to issue a search warrant where, as here, information was supplied by an informant,

we apply the Aguilar-Spinelli2 two-pronged test. State v. Atchley, 142 Wn. App. 147, 161, 173

P.3d 323 (2007). This test examines (1) the “‘veracity’” or credibility of the informant and (2)

the informant’s “‘basis of knowledge.’” Atchley, 142 Wn. App. at 161 (quoting State v. Jackson,




2
 Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United
States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), abrogated by Illinois v. Gates, 462
U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), but adhered to by State v. Jackson, 102
Wn.2d 432, 688 P.2d 136 (1984).


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No. 47485-9-II


102 Wn.2d 432, 435, 688 P.2d 136 (1984)). The credibility and basis of knowledge prongs are

independent and both must be established in the affidavit. Jackson, 102 Wn.2d at 437.

A.     Credibility

       Where, as here, a citizen informant is known to police but unnamed in the affidavit, “the

affidavit must contain sufficient ‘background facts to support a reasonable inference that the

information is credible and without motive to falsify.’” Atchley, 142 Wn. App. at 162 (quoting

State v. Cole, 128 Wn.2d 262, 287-88, 906 P.2d 925 (1995)). Here, there were sufficient

background facts upon which to establish the unnamed citizen informant’s credibility.

Schrader’s affidavit established that the unnamed citizen informant (1) provided his or her

identity and contact information but wished to remain anonymous, (2) had no criminal history,

(3) was not providing information for monetary gain or to work off criminal charges, and (4) was

motivated to provide the information to police to see Gardner’s criminal activity stop.

       This case is thus indistinguishable from Atchley, where Division Three of this court held:

       [T]here was sufficient evidence that the credibility of the informant was
       established. The informant provided his or her name and other contact information
       to police. The informant received no compensation or other reward in return for
       the tip. A background check revealed nothing to give Deputy Rosenthal reason to
       suspect the information provided was false. The informant said his or her reason
       for coming forward was to assist law enforcement in ridding the community of
       suspected narcotic manufacturers and traffickers.

142 Wn. App. at 162-63. Contrary to Gardner’s claim on appeal, a track record of providing

reliable information by a citizen informant is not required to establish the informant’s credibility

“because a citizen who is an eyewitness or a victim lacks the opportunity to establish a record of

previous reliability.” State v. Berlin, 46 Wn. App. 587, 590, 731 P.2d 548 (1987). Accordingly,

we hold that the credibility prong of the Aguilar-Spinelli test has been met here.



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No. 47485-9-II


B.     Basis of Knowledge

       To establish the basis of knowledge prong of the Aguilar-Spinelli test, “the affiant ‘must

explain how the informant claims to have come by the information’ and ‘the informant must

declare that he [or she] personally has seen the facts asserted and is passing on firsthand

information.’” Atchley, 142 Wn. App. at 163 (quoting Jackson, 102 Wn.2d at 437). These

requirements have been met here.

       Schrader’s affidavit established that the informant had been in Gardner’s suspected

residence within the past 5 days and had personally seen “4 to 5 baggies of a white crystalline

substance on the table” in Gardner’s bedroom. CP at 16. Schrader’s affidavit further established

that the informant knew what methamphetamine looked like because he or she used to have

friends that used methamphetamine and because he or she had attended drug and alcohol classes

that discussed methamphetamine. Because both prongs of the Aguilar-Spinelli test have been

satisfied, the trial court did not err by concluding that the search warrant was supported by

probable cause. Gardner thus fails to demonstrate that the trial court erred by failing to suppress

evidence obtained pursuant to the search warrant.

                                          II. SAG ISSUES

       In his SAG, Gardner asserts that the judge presiding over his suppression hearing made a

disparaging remark toward him. But Gardner admits that this alleged remark was not

documented on the record. Accordingly, this issue would be more appropriately raised in a

personal restraint petition, and we do not further address it here. State v. McFarland, 127 Wn.2d

322, 335, 899 P.2d 1251 (1995).




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No. 47485-9-II


                                       III. APPELLATE COSTS

        Gardner has filed a supplemental brief opposing the award of appellate costs to the State

in light of State v. Sinclair, 192 Wn. App. 380, 367 P.3d 612 (2016), asserting that he lacks the

ability to pay such costs if imposed. The trial court entered an order of indigency for Gardner’s

appeal on May 8, 2015. Under RAP 15.2(f), we presume that Gardner remains indigent

throughout our review of his appeal unless the trial court finds that his financial situation has

improved. We therefore elect to exercise our discretion under RCW 10.73.160(1) to waive the

imposition of appellate costs.

        We affirm.

        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 in accordance with RCW

2.06.040, it is so ordered.



                                                                       Worswick, J.
 We concur:



 Bjorgen, C.J.




 Maxa, J.




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