                                                                                                                         FILED
                                                                                                               COURT OF APPEALS
                                                                                                                       O! V( SIO i II
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                  2015 NNAR 31
                                                                                                                                 MI 8: 35
                                                      DIVISION II
                                                                                                             ST ` E      F VIA    1NGTON
    STATE OF WASHINGTON,                                                                      No. 45001- 1 - Ar


                                         Respondent,


           v.



    MICHAEL A. JONES,                                                            UNPUBLISHED OPINION


                                         Appellant.


          MELNICK, J. —          Michael Jones appeals from his jury conviction for use of drug

paraphernalia and bail jumping. Jones argues that probable cause did not exist to issue the search

warrant for his girlfriend' s parents' home, and that the court violated his public trial rights by

addressing peremptory challenges off the record. We reject Jones' s arguments and affirm the trial

court.



                                                           FACTS


          On October 18, 2012, someone burglarized Brian and Trish Settlemyre' s home' and stole


various items, including several guns. Deputy Ryan P. Tully responded to the Settlemyres' home.

The next day, while Deputy Tully was present at the Settlemyres' home, a person called Brian on

the phone and stated that he or she had heard Tina Falkner talking about " ripping off a place near

the   golf course where       there were   a   lot   of guns."   Clerk'   s   Papers ( CP)       at   20. This person repeated


the   same   story to the   police.    Fearing   retaliation,    he   or she asked       to   remain nameless.         According

to   Deputy Tully, this       person   had " provided     reliable    information    on another case."          CP at 20.




1                                                                                                                      disrespect.
    For clarity,   we refer   to Brian   and   Trish Settlemyre       by their   first   names.       We intend   no
45001 - 1 - II




         Because the burglar had not completely ransacked their home, the Settlemyres believed

that the burglar knew what they had and where it was. Jones matched this description. Brian and

Jones' s father were friends, Jones had been in the Settlemyres' home in the past, and Jones and


Falkner were in a relationship.

         Deputy Tully and another officer went to Falkner' s parents' home where Jones and Falkner

had been staying for the prior couple weeks. The police made contact with Jones who " appeared

very   nervous"       and " seemed      to be     trying   to   get [   the   police]   to leave."   CP at 20. Three days later,


the police returned to the Falkners' home and saw that the windows had been covered up and the

porch door had been locked.


          The police subsequently received a call from another person. This person reported that he

or she had " heard from at least two people that [Jones] was going around town bragging about the

burglary. [ Jones] was telling people that he knew about the guns and other items because his

family   is   close   to Brian'   s."   CP   at   21.   In addition, Jones tried to sell the person an item similar to


one stolen from the Settlemyres' home. Like the first informer, this person feared retaliation and

asked to remain nameless. This person had also " previously provided [information] to [ the police]

that has   proved      to be   reliable."    CP at 21.


           On October 25, 2012, the police applied for and obtained a warrant to search the Falkners'

residence     for any items that had been               stolen    from the Settlemyres. During the search, the police


discovered a bag containing burnt butter knives,2 plastic tubes, and baggies containing a substance
later identified as methamphetamine.




2 The butter knives were used to smoke marijuana by heating the knives and pressing marijuana
between them.




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                                        PROCEDURAL HISTORY


         The State charged Jones with possession of methamphetamine, use of drug paraphernalia,

and   bail   jumping. 3 Jones moved to suppress the evidence obtained during the search of the Falkner

residence.       He specifically argued that the police informants were not reliable and that the

information in the search warrant affidavit did not establish probable cause. The trial court heard


argument and denied Jones' s motion, ruling that a reasonable magistrate could have found

probable cause. The trial court did not state its reasoning.

         During voir dire, the parties questioned the jurors in open court. The parties then exercised

their peremptory       challenges outside   the   hearing   of   the   prospective   jurors,   at   the bailiff' s table.   A


written record of the peremptory challenges was filed on the same day.

             Following a trial, the jury found Jones guilty of using drug paraphernalia and bail jumping,

and hung on the methamphetamine possession charge. Jones appeals his convictions.
                                                    ANALYSIS


I.           SEARCH WARRANT


             Jones argues that the search warrant for the Falkners' home was invalid because the

magistrate relied on informants who were not reliable and because the warrant affidavit failed to

establish probable cause. For the first time on appeal, Jones also argues that the magistrate relied


on an informant with no demonstrated basis of knowledge, and that no nexus existed between the

items sought and the Falkners' home. We hold that the trial court did not err by finding the search

warrant affidavit established probable cause.




3 Jones failed to appear for a hearing while he was on bail, which was the basis for the bail jumping
charge.




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          A.         Standard of Review


          We review a magistrate' s issuance of a search warrant under an abuse of discretion

standard.        State    v.   Neth, 165 Wn.2d 177, 182, 196 P. 3d 658 ( 2008).                            We generally give great

deference to the magistrate' s decision. State v. Cole, 128 Wn.2d 262, 286, 906 P. 2d 925 ( 1995).

Yet, if the      affidavit offers no " substantial             basis for       determining     probable cause,"       deference to the


magistrate is inappropriate. State v. Lyons, 174 Wn.2d 354, 363, 275 P. 3d 314 ( 2012).


          At     a suppression       hearing,      the trial     court acts        in   an " appellate -like   capacity."   Neth, 165


Wn.2d     at   182. Because we perform the same review of the magistrate' s actions as the trial court,


we will defer to the magistrate but not to the trial court. Neth, 165 Wn.2d at 182.


          A magistrate should issue a search warrant only if there is probable cause to believe the

defendant is involved in criminal activity and that evidence of the criminal activity will be found

in the   place    to be   searched.    Neth, 165 Wn. 2d              at   182. "   It is only the probability of criminal activity,

not a prima       facie showing        of   it, that       governs    probable      cause.     The magistrate is entitled to make


reasonable       inferences from the facts                 and circumstances set out           in the   affidavit."   State v. Maddox,


152 Wn.2d 499, 505, 98 P. 3d 1199 ( 2004). A motion to suppress will fail if a reasonable magistrate


could    find    probable cause.           State      v.   Gentry,    125 Wn.2d 570, 606, 888 P. 2d 1105 ( 1995). "                All


doubts    are resolved          in favor   of   the   warrant."       State v. Anderson, 105 Wn. App. 223, 228, 19 P.3d

1094 ( 2001).




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             B.       Informants - Aguilar- Spinelli Test


             Probable cause for a search warrant may be based on information from an informant. State

v.   Gaddy,       152 Wn.2d 64, 71, 93 P. 3d 872 ( 2004).                For an informant' s tip to create probable cause

requires two conditions:


              1) the officer' s affidavit must set forth some of the underlying circumstances from
             which the informant drew his conclusion so that a magistrate can independently
             evaluate the reliability of the manner in which the informant acquired his
             information;         and (   2)    the affidavit must set forth some of the underlying
             circumstances from which the officer concluded that the informant was credible or
             his information reliable.


State   v.   Jackson, 102 Wn.2d 432, 435, 688 P. 2d 136 ( 1984) (                   citing Aguilar v. Texas, 378 U.S. 108,

114, 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, 413,, 89 S. Ct. 584, 21


L. Ed. 2d 637 ( 1969),            abrogated      by   Gates, 462 U. S. 213). This two part test encompasses a " basis


of   knowledge" prong              and a "     veracity" prong, respectively.           Jackson, 102 Wn.2d   at   437.   Here,


both prongs are satisfied.


                         1.        Basis of Knowledge


             Typically, the basis of knowledge prong is satisfied by information that the informant

personally         saw    the facts   asserted and      is passing   on   firsthand information. State v. McCord, 125


Wn.     App.      888, 893, 106 P. 3d 832 ( 2005).           In the present case, the first informant personally. heard

Falkner talk about the burglary. Jones does not challenge the first informant on the basis of

knowledge prong.                  Rather, Jones argues that the second informant did not have a basis of

knowledge because the second informant merely repeated hearsay obtained from other people,

namely " Jones            was `   going   around      town   bragging     about   the   burglary. "' Br. of Appellant at 18

 quoting CP at 21).




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45001 -1 - II




            If an informant reports hearsay, the knowledge prong may still be satisfied if there is

sufficient information that the hearsay establishes a basis of knowledge. Jackson, 102 Wn.2d at

437 -38. Here, the            affidavit   indicates that "[     t]he citizen also informed [ the requesting officer] that

 Jones] tried to sell an item to them that is similar to one stolen from the Settlemyre residence."

CP    at   21.    It is unclear from the plain language whether the word " them" is used as a gender -


neutral way to refer to the second informant himself or herself ( see CP at 21 ( referring to the

informant        as "   they ")), or whether the word refers to the people whom Jones was allegedly bragging

to.   A reasonable magistrate could infer that the affidavit meant that the second informant had


personally been approached by Jones to buy an item similar to one stolen in the burglary. This

information would corroborate the second informant' s hearsay. Drawing all doubts in favor of the

warrant, we hold that the basis of knowledge prong is satisfied.

                         2.       Veracity

            The veracity test differs depending on the informant' s status. State v. Ibarra, 61 Wn. App.

695, 699, 812 P. 2d 114 ( 1991). The courts distinguish between professional informants and citizen


informants, and whether the informant' s identity is known to the police. Ibarra, 61 Wn. App. at

699. Typically, citizen informants are subject to a less stringent test for veracity. Ibarra, 61 Wn.

App. at 699. But " Washington requires a heightened showing of credibility for citizen informants
whose       identity     is known to      police   but   not   disclosed to the   magistrate."   State v. Atchley, 142 Wn.

App.       147, 162, 173 P. 3d 323 ( 2007).              This standard exists because of the risk that the informant


may be       an "` anonymous        troublemaker. "'           State v. Northness, 20 Wn. App. 551, 557, 582 P. 2d 546

 1978) (     quoting United States v. Darensbourg, 520 F. 2d 985, 988 ( 5th Cir. 1975)).




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         When a citizen informant remains unidentified to the magistrate but known to the police,


the affidavit must show that " the informant is truly a citizen informant who is not involved in the

criminal    activity            or motivated      by        interest."
                                                       self -                Cole, 128 Wn.2d    at   287.   The affidavit must


support a reasonable inference that the informant' s information is credible and that the informant

has   no motive           to   falsify.     Cole, 128 Wn.2d at 287 -88.


         This burden is               not onerous.       Where   a citizen wishes    to   remain anonymous, "'   his reliability .

could certainly be corroborated by description of him, his purpose for being at the locus of the

crime, and          the   reason       for his desire to    remain anonymous. "'          State v. Berlin, 46 Wn. App. 587,

591, 731 P. 2d 548 ( 1987) ( quoting                   State v. Chatmon, 9 Wn. App. 741, 748, 515 P.2d 530 ( 1973)).

However, it is not enough for the affidavit to merely recite that an informant is credible. Aguilar,

378 U. S.      at   114.        Similarly, it is not enough for an affidavit to recite that an informant has proven

to be   reliable      in       the   past   because "` [ r] eliable'. . . is a mere conclusion of the affiant which could

mean a number of                 things."     State v. Woodall, 100 Wn.2d 74, 76, 666 P. 2d 364 ( 1983).


         Here, both of the informants identified in the search warrant affidavit were " confidential


citizen[ s]"    who were not known to the magistrate but were known to the police. CP at 20, 21. The

affidavit further states that both informants had provided the police with reliable information on

other occasions, and that the informants wanted to remain anonymous out of fear of retaliation.


          In relying on all the facts and circumstances presented in the search warrant affidavit, a

reasonable magistrate could                     determine that the informants         were reliable.   Here, unlike Chatmon,


the informants             here      were not    truly   anonymous.          Cf. Chatmon, 9 Wn. App. at 742, 748 ( holding

that there was insufficient indicia of an informant' s reliability where the informant was unknown




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45001 -1 - II




to both   magistrate    and police).    Both informants were known to the police and had provided


information to the     police on previous occasions.        These facts reduce the risk that the informants


were " anonymous       troublemakers."    The risk is further reduced by the fact that the informants had

an   innocuous   reason   for remaining    anonymous     they feared     retaliation.    Furthermore, unlike


Berlin, the informants     were not    involved in   suspicious   behavior themselves.    Cf.Berlin, 46 Wn.

App. at 588 -89, 591 -92 ( holding that magistrate could find sufficient indicia of reliability of

confidential informants who divulged their names and addresses to the police even though


informants did not indicate why they were present at defendant' s marijuana grow operation).

Rather, the informants obtained their information innocently: the first informant overheard Falkner

planning a burglary, while the second informant was approached by Jones. Finally, the informants

had both previously provided information that the police had found reliable.

          In short, nothing in this case " promoted suspicions that the informants were more than

merely    civic -minded citizens."     State v. Rodriguez, 53 Wn. App. 571, 576, 769 P.2d 309 ( 1989).

Accordingly, while reasonable minds could differ on-whether the informants were reliable, we

have independently reviewed the search warrant and defer to the magistrate' s determination.

          C.     Probable Cause


           Probable cause is established in an affidavit supporting a search warrant by setting forth

facts sufficient for a reasonable person to conclude the defendant probably is involved in criminal

activity." State v. Huft, 106 Wn.2d 206, 209, 720 P. 2d 838 ( 1986).




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45001 - 1 - I1



         Here,      a    reasonable      magistrate      could      conclude       from the informants'                 tips, the police


investigation,      and      other    facts that Jones        was    probably involved in               criminal      activity.   Jones' s


girlfriend,      Falkner,     planned     to   steal   from "   a place ...         where       there      were   a   lot   of guns,"    and




numerous guns were in fact stolen from the Settlemyres' home. CP at 20. The Settlemyres' home


was not "      completely torn          apart,"   but appeared to be burglarized by someone familiar with the

layout   of    the home       and    the locations     of valuables and          firearms. CP         at   20.    Jones possessed this


knowledge.         He    acted   suspiciously      around     the    police.      Yet, around other people, Jones bragged


about the burglary and tried to sell items that were similar to the stolen items. When taken together,

these facts      would       justify   a reasonable magistrate in determining there was probable cause to

believe that Jones had committed a crime.


          D.        Nexus


          Probable       cause cannot exist without             both "` a      nexus between criminal activity and the item

to be   seized, and also a nexus           between the item to be              seized and      the   place   to be    searched.'"       State


v.   Thein, 138 Wn.2d 133, 140, 977 P. 2d 582 ( 1999) (                          quoting State v. Goble, 88 Wn. App. 503,

509, 945 P. 2d 263 ( 1997)).


          Probable cause to believe a defendant committed a crime does not always, by itself, create

probable cause          to   search    that defendant'    s   home.          See Thein, 138 Wn. 2d           at   148 -50.    Yet, certain


circumstances may allow the inference that evidence may be found in the defendant' s residence.

For   example,      as   the Thein      court recognized, "         personal items of continuing utility" that are " not

inherently incriminating"              might   likely be kept       in   a   defendant'   s   home. 138 Wn.2d at 149 n.4. And


as we have previously noted in State v. McReynolds:




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          Here, the question is whether, assuming a not too long passage of time since the
          crime, it is proper to infer that the criminal would have the fruits of his crime in his
          residence, vehicle or place of business. Perhaps because stolen property is not
          inherently incriminating in the same way as narcotics and because it is usually not
          as readily concealable in other possible hiding places as a small stash of drugs,
          courts have been more willing to assume that such property will be found at the
          residence of the thief, burglar or robber.


104 Wn. App. 560, 569 -70, 17 P. 3d 608 ( 2000) ( quoting                        WAYNE R. LAFAVE, SEARCH AND SEIZURE

  3. 7( d),    at   381 - 84 ( 3d   ed.    1996) ( footnotes      omitted)) ( emphasis added).        We have such a case


here. First, the burglary occurred temporally close to the search warrant application and execution.

Second, the         stolen   items included        various power         tools   and guns —    items that are not inherently

incriminating         and not as     readily    concealable as controlled substances.              A reasonable magistrate


could conclude that if Jones had indeed burglarized the Settlemyres' home, he would be keeping

the   fruits   of   the   crime at   the   place   he   stayed,   the Falkner     residence.    Drawing all doubts in favor

of the warrant, we hold that a nexus exists between the place to be searched and the items being

sought.



II.       PUBLIC TRIAL


          Jones argues that peremptory challenges are an integral part of jury
                                                                          ,    selection, and that

holding peremptory challenges at the bailiff' s table outside the earshot of the venire and spectators

violated his public trial rights. The State argues that peremptory challenges do not implicate public

trial rights. We agree with the State and reject Jones' s public trial arguments.

          A.           Standard of Review


          The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington State Constitution guarantee a defendant the right to a public trial. State v. Wise, 176

Wn.2d 1, 9, 288 P. 3d 1113 ( 2012).                 In general, this right requires that certain proceedings be held

in open court unless application of the five- factor test set forth in State v. Bone -Club, 128 Wn.2d.




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45001 - 1 - II




254, 258 -59, 906 P. 2d 325 ( 1995),                    supports      closure     of   the   courtroom.    Whether a courtroom


closure violated a         defendant'       s right   to   a public   trial is   a question of    law we   review    de   novo.   Wise,


176 Wn.2d at 9.


          The threshold determination when addressing an alleged violation of the public trial right

is   whether     the proceeding        at   issue     even   implicates the       right.     State v. Sublett, 176 Wn.2d 58, 71,


292 P. 3d 715 ( 2012).           First, we consider whether the particular proceeding at issue " falls within a

category of proceedings that our Supreme Court has already acknowledged implicates a

defendant'       s public   trial   right."   State v. Wilson, 174 Wn. App. 328, 337, 298 P. 3d 148, petition for

review    filed, No. 88818 -3 ( Wash.               May      16, 2013).     Second, if the proceeding at issue does not fall

within a specific protected category, we determine whether the proceeding implicates the public

trial   right   using the     experience and           logic test     adopted     in Sublett, 176 Wn.2d        at   73.   Wilson, 174


Wn. App. at 335.

          B.            Peremptory Challenges

           Jones argues that the trial court violated his right to a public trial by allowing peremptory

challenges at          the bailiff' s table,    which was outside           the    earshot of    the   venire and spectators.      Our


recent caselaw established that exercising preemptory challenges does not implicate the public trial

right.    State   v.   Marks, _ Wn.          App. _, 339 P. 3d 196, 198 -99 ( 2014), petition for review filed, No.

911487 ( Wash. Dec. 29, 2014);                   State v. Dunn, 180 Wn. App. 570, 575, 321 P. 3d 1283 ( 2014),

review    denied, 181 Wn.2d 1030 ( 2015).                     Therefore, we hold that the trial court did not violate




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45001 -1 - II




Jones' s public trial right by allowing counsel to make peremptory challenges at the bailiff' s table,

outside   the earshot   of   the   venire and courtroom   spectators. Because the exercise of peremptory


challenges does not implicate the public trial right, no Bone -Club analysis is required. 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.




                                                                                 J

We concur:




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