                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         May 1, 2018




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
    STATE OF WASHINGTON,                                           No. 50173-2-II

                               Respondent,

         v.

    CHARLES LEE BURKE,                                      UNPUBLISHED OPINION

                               Appellant.

        LEE, J. — Charles Lee Burke appeals his convictions for possession of a controlled

substance and harassment.1 Burke argues that the trial court erred in denying his motion to

suppress because (1) the complaint for a search warrant for his motorhome failed to establish

probable cause to believe that (a) he was involved in the crime of harassment, and (b) evidence of

harassment would be found in his motorhome; and (2) the deputy unlawfully tested suspected

methamphetamine without a warrant. We hold that the trial court did not err in denying Burke’s

motion to suppress. Accordingly, we affirm.

                                             FACTS

A.      CHARGES AND INCIDENT

        In July 2016, Burke and Joseph Prince spoke about Burke moving his motorhome, which

had been parked on the street partially blocking access to Prince’s home for “one to two weeks.”


1
 The State charged and Burke was convicted of gross misdemeanor harassment under RCW
9A.46.020(2)(a).
No. 50173-2-II



Clerk’s Papers (CP) at 62. Burke began to yell and scream at Prince. Burke told Prince that “he

was going to get his gun from his [motorhome] and end his problem.”2 CP at 63. This frightened

Prince. Prince was certain that “if he had stayed, [Burke] would have assaulted him with some

type of weapon, based on how angry [Burke] was.” CP at 62. Prince got into his girlfriend’s car

and told her to call 911 because Burke had threatened him with a gun. Burke left the scene.

       Deputy Andrews of the Kitsap County Sheriff’s Office responded to the 911 call. Deputy

Andrews was told that the 911 caller reported that

       a male was outside their home with gun and appeared to be under the influence of
       narcotics. . . . [T]he male stated he was going to end the problem and threatened to
       kill the caller’s boyfriend. . . . [T]he male was wearing a baseball cap and was
       leaving in a large [motorhome]. . . . [T]he [motorhome] was leaving the scene and
       would likely end up in the Gorst area of Kitsap County.

CP at 61-62. Deputy Andrews was also given the license plate of the motorhome that the 911

caller provided.

       Deputy Andrews located the motorhome with the license plate matching that given by the

911 caller “traveling in the northbound lane of SR 3” and stopped the motorhome “in the parking

lot of Viking Fence.” CP at 62. Burke was the sole occupant in the motorhome. Burke was

detained, and his motorhome was impounded. Law enforcement took Burke’s motorhome to a

secured impound lot.




2
  Prince did not see Burke with a gun. Burke told deputies that he did not have a gun but said he
told Prince, “what if I was someone else and got a gun.” CP at 62.


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No. 50173-2-II



B.      WARRANT AND SEARCH

        The Kitsap County Sheriff’s Office later applied for and obtained a search warrant for

Burke’s motorhome. The complaint for a search warrant stated that deputies responded to a “man

with a gun” call where the caller reported that “Burke was outside of their home, high on narcotics

and armed with a gun.” CP at 18. The search warrant complaint also stated that Prince had asked

Burke to move his motorhome and that Burke told Prince “he was going to get a gun from the

motorhome and ‘end this problem.’” CP at 18. The complaint further stated that Prince jumped

into his girlfriend’s car and told her to call 911.

        A search warrant was issued pursuant to this search warrant complaint. The search warrant

allowed deputies to search for “any fruits, instrumentalities and/or evidence of the crime(s) of

Harassment,” including “[a]ny and all firearms, including but not limited to handguns, shotguns

and/or rifles,” “[a]ny and all firearm ammunition,” “[a]ny paperwork showing ownership, or

purchase information for firearms,” and “[a]ny evidence showing dominion and control of the

vehicle.” CP at 21.

        While executing the search warrant, a deputy found a cardboard box wrapped in plastic in

Burke’s motorhome. The deputy opened the box because it was large enough to contain a gun or

ammunition. Inside the box, the deputy located “numerous used hypodermic syringes and a small,

plastic Tupperware container which contained a crystalline substance that he recognized from his

training and experience to be methamphetamine.” CP at 63. Another deputy tested the suspected




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No. 50173-2-II



methamphetamine, which resulted in a presumptive positive reading for methamphetamine. The

suspected methamphetamine and box were logged into evidence.3

       When Burke later went to take possession of his motorhome, he was arrested. The State

charged Burke with possession of a controlled substance (Count I) and harassment (Count II).

C.     MOTION TO SUPPRESS

       Pretrial, Burke moved to suppress all the evidence obtained from the search of his

motorhome. Burke argued that the “search warrant was not valid as it was not supported by

probable cause” and that the “subsequent search of the syringes and testing for illegal substances

was done without a search warrant.” CP at 12, 14. Specifically, Burke argued that no probable

cause existed because harassment only required a “threat to cause bodily injury be made which

places the person in reasonable fear that the threat will be carried out.” CP at 13. Burke also

argued that the deputy’s testing was improper because it was done without a warrant. The trial

court denied Burke’s motion, concluding that the deputy “did not need a second search warrant to

search the box or the Tupperware container.” CP at 55.

       Burke moved the trial court to reconsider its denial of his motion to suppress. The trial

court concluded that there was an insufficient basis for reconsideration and denied Burke’s motion.

D.     TRIAL AND APPEAL

       Burke proceeded to a bench trial on stipulated facts. The trial court found Burke guilty as

charged. Burke appeals.




3
  The Washington State Patrol Crime Lab later tested the suspected methamphetamine and
confirmed that the substance was in fact methamphetamine.


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No. 50173-2-II



                                            ANALYSIS

A.     PROBABLE CAUSE

       Burke argues that the trial court erred in denying his motion to suppress because the

complaint for a search warrant failed to establish probable cause to believe that evidence of the

crime of harassment would be found in his motorhome. We disagree.

       1.      Legal Principles

       We review a trial court’s determination of probable cause de novo. State v. Neth, 165

Wn.2d 177, 182, 196 P.3d 658 (2008). In doing so, we determine “whether the qualifying

information as a whole amounts to probable cause.” State v. Dunn, 186 Wn. App. 889, 896, 348

P.3d 791, review denied, 184 Wn.2d 1004 (2015). This review is limited to the four corners of the

document supporting probable cause. Neth, 165 Wn.2d at 182. Facts that, standing alone, do not

support probable cause can support probable cause when viewed together with other facts. State

v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). We review the supporting affidavit “in a

commonsense manner, rather than hypertechnically,” and resolve any doubts in favor of the

warrant. State v. Lyons, 174 Wn.2d 354, 360, 275 P.3d 314 (2012) (quoting State v. Jackson, 150

Wn.2d 251, 265, 76 P.3d 217 (2003)).

       A judge may issue a search warrant only if the affidavit establishes probable cause. State

v. Powell, 181 Wn. App. 716, 723, 326 P.3d 859, review denied, 181 Wn.2d 1011 (2014). To

establish probable cause, the affidavit for the search warrant must set forth facts and circumstances

sufficient to establish a reasonable inference that the defendant is probably involved in criminal

activity and that evidence of the crime can be found at the place to be searched. Id. at 723-24.




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No. 50173-2-II



There must be a nexus between the criminal activity and the item to be seized and a nexus between

the item to be seized and the place to be searched. Id. at 724.

       Under RCW 9A.46.020(1), a person is guilty of harassment if (1) without lawful authority,

the person knowingly threatens to cause bodily injury immediately or in the future to another

person, and (2) the person by words or conduct places the other person in reasonable fear that the

threat will be carried out. In order to avoid unconstitutional infringement on protected speech, the

harassment statute must be read to only prohibit “true threats.” State v. Kilburn, 151 Wn.2d 36,

43, 84 P.3d 1215 (2004).

       A “true threat” is a statement made in a context or under circumstances wherein a

reasonable person would foresee that the statement would be interpreted as a serious expression of

intent to inflict bodily harm upon another. State v. Barnes, 158 Wn. App. 602, 610, 243 P.3d 165

(2010). “A true threat is a serious threat, not one said in jest, idle talk, or political argument.”

Kilburn, 151 Wn.2d at 43. Whether a “true threat” is made is determined under an objective

standard that focuses on the speaker. Id. at 44. When a person makes a threat involving a gun,

whether that person had access to a gun when the threat was made is relevant to whether a “true

threat” was made for purposes of harassment. See Barnes, 158 Wn. App. at 610.

       2.      Involvement in Criminal Activity

       To establish probable cause that Burke was involved in the crime of harassment, the

affidavit supporting the search warrant had to set forth facts and circumstances sufficient to

establish a reasonable inference that Burke was probably involved in the crime of harassment.

Powell, 181 Wn. App. at 723-24. Burke concedes that the search warrant complaint contained




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No. 50173-2-II



sufficient facts and circumstances to establish probable cause to believe that he was involved in

the crime of harassment.

       Here, the search warrant complaint stated that Prince said he asked Burke to move his

motorhome, and Burke told Prince that “he was going to get a gun from the motorhome and ‘end

this problem.’” CP at 18. This fact is sufficient to establish the first element of harassment—

Burke knowingly threatened to cause bodily injury to Prince. The search warrant complaint also

stated that Prince jumped in his girlfriend’s car and told her to call 911. This fact is sufficient to

establish the second element of harassment—Burke’s threat placed Prince in reasonable fear that

the threat would be carried out. Together, these facts set forth both elements of harassment and

thus are sufficient to establish a reasonable inference that Burke was involved in harassment.

       We accept Burke’s concession that the trial court did not err in denying Burke’s motion to

suppress because the complaint for a search warrant established probable cause to believe that he

was involved in the crime of harassment.

       3.      Nexus Between Item to be Seized and the Place to be Searched

       Burke argues that the search warrant complaint failed to establish probable cause to believe

that evidence of the crime of harassment would be found in his motorhome. We disagree.

       To establish probable cause, the affidavit supporting the search warrant request must

establish a reasonable inference that the defendant is probably involved in criminal activity and

that evidence of the crime can be found at the place to be searched. Powell, 181 Wn. App. at 723-

24. Thus, there must be a nexus between the criminal activity and the item to be seized and a

nexus between the item to be seized and the place to be searched. Id. at 724. Therefore, the




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No. 50173-2-II



relevant inquiry is whether the affidavit supporting the search warrant set forth facts and

circumstances sufficient to establish a reasonable inference that evidence of the crime of

harassment could be found in Burke’s motorhome.

       Here, the search warrant complaint stated that deputies responded to a “man with a gun”

call, where the caller reported “Burke was outside of their home, high on narcotics and armed with

a gun.” CP at 18. The search warrant complaint also stated that Burke told Prince that “he was

going to get a gun from the motorhome and ‘end this problem.’” CP at 18. These statements

created a nexus between the criminal activity, the threat, and the item to be seized, a gun, because

Burke threatened to get a gun and end the problem between Burke and Prince. These statements

also created a nexus between the item to be seized, a gun, and the place to be searched, the

motorhome, because Burke said he would get a gun from his motorhome. Thus, the search warrant

complaint set forth sufficient facts and circumstances to establish a reasonable inference that

evidence of harassment could be found in Burke’s motorhome, along with the required nexuses

between the crime, the item to be seized, and the place to be searched.

       Burke argues that the complaint did not establish that evidence of the crime of harassment

would be found in the motorhome because no gun was ever seen by any witness and the crime is

complete once the threat is made. Although the crime of harassment only requires that a threat be

made placing a person in reasonable fear, when a person makes a threat involving a gun, whether

that person had access to a gun when the threat was made is relevant to whether a “true threat” was

made for purposes of harassment. See Barnes, 158 Wn. App. at 610. Here, Burke said that he had

access to a gun in his motorhome. As a result, a reasonable inference existed that evidence of




                                                 8
No. 50173-2-II



harassment, in particular a “true threat,” could be found in the motorhome. Therefore, we hold

that the trial court did not err in denying Burke’s motion to suppress because the complaint for a

search warrant established probable cause to believe that evidence of the crime of harassment

could be found in his motorhome.

B.     LACK OF A WARRANT FOR TESTING

       Burke argues that the trial court erred in denying his motion to suppress because the deputy

unlawfully tested the methamphetamine found in his motorhome without a warrant. We disagree.

       1.      Legal Principles

       We review a trial court’s conclusions of law in a suppression decision de novo. State v.

VanNess, 186 Wn. App. 148, 154, 344 P.3d 713 (2015). “As a general rule, warrantless searches

and seizures are per se unreasonable, in violation of the Fourth Amendment to the United States

Constitution and article I, section 7 of the Washington Constitution.” State v. Garvin, 166 Wn.2d

242, 249, 207 P.3d 1266 (2009).          In particular, the Fourth Amendment “protects against

unreasonable searches that intrude on a citizen’s subjective and reasonable expectation of privacy.”

State v. Harlow, 85 Wn. App. 557, 564, 933 P.2d 1076 (1997). And article I, section 7 provides

that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority

of law.” VanNess, 186 Wn. App. at 155. But there are a few exceptions to the warrant requirement.

Garvin, 166 Wn.2d at 249. The State must demonstrate that a warrantless search or seizure falls

within an exception to the warrant requirement. Id. at 250.

       Under the plain view exception, an officer can seize items in plain view without a warrant

if (1) there is a valid justification for the intrusion into a constitutionally protected area, and (2)




                                                  9
No. 50173-2-II



the item seen is immediately recognized as incriminating evidence associated with criminal

activity. State v. O’Neill, 148 Wn.2d 564, 582-83, 62 P.3d 489 (2003). Officers do not need to be

certain the item is evidence of a crime—“probable cause is sufficient.” State v. Weller, 185 Wn.

App. 913, 926, 344 P.3d 695, review denied, 183 Wn.2d 1010 (2015). Probable cause exists when

an officer is aware of facts and circumstances sufficient to cause a reasonable person to believe a

crime has been or is being committed. State v. Greene, 97 Wn. App. 473, 478, 983 P.2d 1190

(1999). “[I]t is generally understood that a lawful seizure of apparent evidence of a crime using a

valid search warrant includes a right to test or examine the seized materials to ascertain their

evidentiary value.” State v. Grenning, 142 Wn. App. 518, 532, 174 P.3d 706 (2008), aff’d, 169

Wn.2d 47 (2010).

       Under RCW 69.50.4013(1), “It is unlawful for any person to possess a controlled substance

unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a

practitioner while acting in the course of his or her professional practice, or except as otherwise

authorized by this chapter.” Methamphetamine is considered a controlled substance for purposes

of unlawful possession. RCW 69.50.206(d)(2).

       2.      Warrant for Testing

       Here, the deputy did not need a second warrant to test the methamphetamine because it

was lawfully seized under the plain view exception. First, the deputy had a valid justification for

the intrusion into the motorhome, and specifically, the box in which the methamphetamine was

found. The deputy was executing a valid search warrant for firearms, ammunition, and evidence

of dominion and control; the box was large enough to contain a firearm or ammunition. Second,




                                                10
No. 50173-2-II



when the deputy opened the box, he immediately recognized the substance inside as incriminating

evidence of criminal activity; from his training and experience, the deputy recognized the

substance as methamphetamine, which is illegal to possess. Thus, the deputy could lawfully seize

the methamphetamine. And because the deputy could lawfully seize the methamphetamine, the

deputy could also test it to ascertain its evidentiary value. Grenning, 142 Wn. App. at 532.

       Burke cites to State v. Martines, 184 Wn.2d 83, 355 P.3d 1111 (2015), in support of his

claim. In Martines, the defendant’s blood was extracted pursuant to a warrant and tested. 184

Wn.2d at 86. The defendant was suspected of driving under the influence. Id. Division One of

this court held that the testing of the blood was an unlawful warrantless search. Id. The court

reasoned that “drawing blood and testing blood constitute[d] separate searches.” Id. Our Supreme

Court reversed and held that “the search warrant authorized testing [the defendant’s] blood sample

for intoxicants because it authorized a blood draw to obtain evidence of DUI.” Id. at 94.

       Thus, Martines does not support Burke’s claim. In fact, Martines appears to support the

opposite, that a second warrant was not required. The warrant in this case authorized the search

and seizure of firearms, ammunition, and evidence of dominion and control. Pursuant to this

warrant, the deputy found a box that was large enough to contain a gun or ammunition. When the

deputy opened the box, he recognized the substance found in the box as methamphetamine.

Following the reasoning set forth in Martines, because the deputy was authorized to seize the box

under the plain view exception to obtain evidence of unlawful possession, the deputy was also

authorized to test the substance that was found inside the box. Although the warrant in this case

did not authorize a search for controlled substances, the controlled substance was lawfully seized




                                                11
No. 50173-2-II



pursuant to the plain view exception and this lawful seizure provided the deputy with the right to

test or examine the seized substance to ascertain its evidentiary value. Grenning, 142 Wn. App.

at 532. Therefore, Burke’s claim fails.

        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.




                                                    Lee, J.
 We concur:



 Maxa, C.J.




 Melnick, J.




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