                                                                                            Filed
                                                                                      Washington State
                                                                                      Court of Appeals
                                                                                       Division Two

                                                                                        July 3, 2018


    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION II
 STATE OF WASHINGTON,                                             No. 49572-4-II

                       Respondent,

        v.

 JESSE M. IRWIN,                                            UNPUBLISHED OPINION

                       Appellant.


       SUTTON, J. — Irwin appeals his conviction for possession of a controlled substance—

methamphetamine. Irwin argues that the trial court erred by denying his motion to suppress

methamphetamine found in his backpack during a search of his vehicle because the officer’s search

warrant was not supported by probable cause. Irwin also argues that the search warrant was

overbroad. We hold that the trial court did not err by concluding that the search warrant was

supported by probable cause. We also hold that the overbroad portion of the warrant can be

severed and redacted from the valid portion of the warrant. Accordingly, we affirm.

                                            FACTS

       The State charged Irwin with possession of a controlled substance with intent to deliver—

methamphetamine and possession of a controlled substance—methamphetamine. Irwin moved to

suppress the methamphetamine found during the search of his vehicle because the search warrant

was not supported by probable cause.
No. 49572-4-II


         The probable cause affidavit supporting the search warrant alleged the following, relevant

facts:

      On July 14, 2016, at approximately 8 AM, Officer Fraser, of the Battle Ground
       Police Department, stopped Irwin for driving without a seat belt. Irwin had a
       female passenger in the van.
      Officer Fraser observed two BMX style bicycles, tools, stereo equipment, and
       various electronics in the van. Officer Fraser thought the bicycles looked like they
       would belong to people younger than the people Officer Fraser observed in the van.
       Officer Fraser also believed the items in the van were consistent with the types of
       items taken during vehicle prowls.
      When Officer Fraser asked Irwin for identification, Irwin picked up a wallet and
       removed a license. Then he commented, “That’s not me.” Then Irwin provided
       Officer Fraser with his name and date of birth.
      Officer Fraser determined that Irwin’s driver’s license was suspended in the first
       degree and confirmed that there was a warrant for Irwin’s arrest for third degree
       theft. And Irwin had a prior conviction for criminal impersonation.
      When Officer Fraser asked Irwin to step out of the van, he realized Irwin was
       completely naked. Irwin explained that he was running late for a court appearance.
       Officer Fraser allowed Irwin to get dressed and then placed him under arrest.
      Officer Fraser requested Irwin’s consent to search the van to confirm that the items
       in the vehicle were not stolen. Irwin consented to the search and told Officer Fraser
       all the items in the van were his.
      Officer Fraser then contacted the passenger, identified as Shelby Cahill. Cahill had
       “very constricted pupils” and lacked her top teeth. Cahill had a prior conviction for
       possession of a controlled substance with the intent to deliver.
      Officer Fraser obtained Cahill’s consent to search her backpack. Officer Fraser
       found two glass pipes commonly used to smoke methamphetamine. One of the
       pipes had a large amount of white crystals, Officer Fraser suspected that it was
       methamphetamine. Officer Fraser also found a glass jar, about the size of his fist,
       which contained a white crystal substance that Officer Fraser recognized as
       methamphetamine. Officer Fraser placed Cahill under arrest.
      Officer Fraser began the search of the van and observed another back pack and a
       black suitcase. He also observed a bedspread covering something on the backseat
       and two men’s leather wallets on the center console. Then Irwin revoked his
       consent to search.




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No. 49572-4-II


Clerk’s Papers (CP) at 17-20. In his supporting affidavit of probable cause for a search warrant,

Officer Fraser stated,

               Based on the amount of items in the van consistent with auto prowls and/or
       thefts (electronics and tools), the suspicious wallet with someone else’s
       identification, the unknown contents of the suitcase and the backpacks, the
       substantial amount of drugs found in [Cahill’s] possession and the criminal
       histories of both individuals involved, I suspected that the van likely contained
       additional drugs and/or paraphernalia and stolen items.

CP at 20. The warrant authorized the officer to search for the following property:

       1. Controlled substances to include, but not limited to methamphetamine, heroin,
       cocaine or prescription medications;
       2. Drug paraphernalia to include, but not limited to smoking pipes, wrappers,
       plastic baggies, electronic or digital scales, or any other device which may be used
       for the consumption or ingestion of drugs;
       3. Any items to show domain and control of the vehicle to include but not limited
       to identification, mail, credit or bank cards, receipts of purchases with the
       defendant(s)’s names, paycheck stubs, or other papers including the defendant(s)’s
       name(s);
       4. Access to any locked storage container which can be used for securing or
       concealing evidence sought;
       5. And any other items of evidence specifically relating to the crime(s) of Theft II
       – RCW 9A.56.040, Possession of Stolen Property – RCW 9A.56.140, Identity
       Theft – RCW 9.35.020, Possession of a Controlled Substance – RCW 69.50.401,
       and Possession of Drug Paraphernalia – RCW 69.50.412.

CP at 17.

       At the suppression hearing, Irwin argued that “this is a clear-cut case of lack [of] probable

cause” because there was no particularized evidence based on which the officer could suspect that

the items in the vehicle were stolen or that Irwin had drugs. I Verbatim Report of Proceedings

(VRP) at 17. The trial court disagreed and concluded that there was probable cause to support the

search warrant. The trial court denied the motion to suppress.




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No. 49572-4-II


       At Irwin’s jury trial, Officer Fraser testified that he searched Irwin’s van and found

methamphetamine and drug paraphernalia in a backpack in the van. Officer Fraser also found mail

and other documents with Irwin’s name on them in the backpack.

       The State elected to rely exclusively on the methamphetamine found in Irwin’s backpack

to support the charge for possession of a controlled substance—methamphetamine. The jury found

Irwin guilty of possession of a controlled substance—methamphetamine. The trial court imposed

a standard range sentence. Irwin appeals.

                                            ANALYSIS

                                       I. PROBABLE CAUSE

       We review de novo a trial court’s conclusions of law determining probable cause

supporting a warrant at a suppression hearing. State v. Dunn, 186 Wn. App. 889, 896, 348 P.3d

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

document supporting probable cause. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008).

Under a de novo review, we determine “whether the qualifying information as a whole amounts

to probable cause.” Dunn, 186 Wn. App. at 896. Facts that, standing alone, do not support

probable cause may 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 . . . .’” 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 search warrant may only issue upon a determination of probable cause “based upon facts

and circumstances sufficient to establish a reasonable inference that criminal activity is occurring

or that contraband exists at a certain location.” Cole, 128 Wn.2d at 286. Probable cause exists as



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No. 49572-4-II


a matter of law if the supporting affidavit contains sufficient facts and circumstances to establish

a reasonable inference that the defendant is probably engaged in illegal activity, and that evidence

of that illegal activity is at the location to be searched. State v. Thein, 138 Wn.2d 133, 140, 977

P.2d 582 (1999). Therefore, “‘probable cause requires 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.’”

Thein, 138 Wn.2d at 140 (quoting State v. Goble, 88 Wn. App. 503, 509, 945 P.2d 263 (1997)).

The nexus between the evidence to be seized and the place to be searched must be established by

specific facts, not by an officer’s generalizations or conclusory predictions. Thein, 138 Wn.2d

at 145.

          First, Irwin relies on Thein to argue that Officer Fraser’s supporting affidavit did not

support a determination of probable cause because Officer Fraser’s affidavit was based primarily

on generalizations about criminal behavior to establish a nexus between the items to be searched

for and the place to be searched. In Thein, the officers obtained information supporting the

conclusion that Thein was selling or distributing drugs. 138 Wn.2d at 139. Based on the officer’s

assertion that it is common practice for drug traffickers to keep drug inventory in their homes, the

officer obtained a search warrant for Thein’s home. Thein, 138 Wn.2d at 138-39. Our Supreme

Court held that the officer’s generalizations about drug traffickers’ conduct were not sufficient to

establish a nexus between the items being searched for and the place to be searched. Thein, 138

Wn.2d at 148-49.

          However, unlike the officer’s generalizations in Thein, here the officer included specific

facts in the supporting affidavit that established a nexus between the items to be searched for (the

evidence of drugs and theft) and the place to be searched (the van). Officer Fraser directly



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No. 49572-4-II


observed property in the van that he knew to be consistent with car prowls in the van that they

were seeking to search; therefore, there is a direct nexus between the possibly stolen property and

the van. Officer Fraser also observed at least two wallets in the van, one of which Irwin admitted

did not belong to him; therefore, there is a direct nexus between the possible evidence of identity

theft (the wallets) and the place to be searched (the van). And Cahill was actually riding as a

passenger in the van while she had drug paraphernalia and a large amount of methamphetamine in

her possession. Therefore, there is a nexus between the possible evidence of drug crimes and the

van as well. Here, there are specific facts besides Officer Fraser’s generalizations which create a

nexus between the items Officer Fraser intended to search for and the place to be searched, the

van. Accordingly, Irwin’s argument that there was no nexus to establish probable cause fails.

       Second, Irwin argues that Cahill’s possession of a large quantity of methamphetamine

cannot support a determination of probable cause for searching his van. Irwin relies on State v.

Parker, 139 Wn.2d 486, 987 P.2d 73 (1999) to argue that Cahill’s possession of drug paraphernalia

and a large quantity of methamphetamine cannot support a determination of probable cause to

search the van Irwin was driving or Irwin’s backpack. However, Irwin’s reliance on Parker is

misplaced.

       Parker held that the search incident to arrest exception to the warrant requirement did not

extend to include the personal belongings of passengers in a car when the driver is arrested. 139

Wn.2d at 502-03. Parker does not address probable cause; therefore, Parker cannot, and does not,

limit what may be considered when making a probable cause determination. A probable cause

determination is made considering all the facts and circumstances known to the officer at the time.




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No. 49572-4-II


Cole, 128 Wn.2d at 286. Therefore, a passenger’s conduct, possessions, etc., may be considered

as part of the facts and circumstances supporting a probable cause determination.

       Here, the facts and circumstances Officer Fraser included in his supporting affidavit

support a probable cause determination. There was a reasonable inference that Irwin may have

been involved in criminal activity because he had a prior conviction for criminal impersonation

and Officer Fraser observed Irwin in possession of at least one wallet that admittedly was not his.

And there was a reasonable inference that the items in the van may be stolen because they were

the type of items consistent with car prowls and Irwin had a warrant for theft. Finally, there was

a reasonable inference that drugs may be in the containers in the van because Cahill had been

riding in the van and she had possession of drug paraphernalia and a large amount of

methamphetamine. And Officer Fraser reasonably believed that there was a relationship between

Irwin and Cahill because they were driving to court together in the van while Irwin was naked. As

explained above, there was a nexus between the items to be searched for and the place to be

searched, the van. Accordingly, Officer Fraser’s supporting affidavit was sufficient to support a

probable cause determination.

       Because Officer Fraser’s supporting affidavit was sufficient to support a probable cause

determination, the trial court did not err by denying Irwin’s motion to suppress the

methamphetamine found in his backpack in the van.

                                        II. OVERBREADTH

       Irwin also argues that the trial court erred by denying the motion to suppress the evidence

because the warrant was overbroad. Specifically, Irwin argues that “[t]he authority to search for

‘any other items of evidence’ related to theft crimes is overbroad.” Br. of Appellant at 26.



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No. 49572-4-II


Although we agree that the challenged portion of the warrant was overbroad, the invalid portion

of the warrant can be effectively severed and redacted from the remaining valid portions of the

warrant. And the valid portions of the warrant authorized the search for the methamphetamine

that supported Irwin’s conviction.

       A search warrant must describe the items to be seized with particularity to prevent general

searches, seizure of objects on the mistaken assumption that they fall within the warrant’s

authorization, and issuance of a warrant on loose, vague, or doubtful factual bases. State v. Thein,

91 Wn. at App. 476, 482-83, 957 P.2d 1261 (1998). “Where there is a logical, reasonable basis

for redacting an overbroad portion of the warrant, it may be severed from the remaining valid

portion and evidence seized based on the latter is not subject to the exclusionary rule.” Thein, 91

Wn. App. at 483.

       For severability to apply, five requirements must be met: (1) the warrant must lawfully

have authorized entry into the premises; (2) the warrant must include one or more particularly

described items for which there is probable cause; (3) the part of the warrant that includes

particularly described items supported by probable cause must be significant compared to the

warrant as a whole; (4) the searching officers must have found and seized the disputed items while

executing the valid part of the warrant; and (5) the officers must not have conducted a general

search in disregard of the warrant’s scope. State v. Maddox, 116 Wn. App. 796, 807-809, 67 P.3d

1135 (2003).




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No. 49572-4-II




       Here, the “any other items of evidence” related to the theft crimes provision is overbroad

because it does not describe any particular items to be seized or searched for, nor does it describe

any particular means of committing the theft crimes that could be used or reasonably used to

narrow the scope of the search or the items to be seized.

       But even if the phrase, “any other items of evidence” related to the theft crimes is

overbroad, it can be severed from the remainder of the warrant which addresses specific evidence

related to identified drug crimes. As redacted, the warrant is still meaningful and provides

authorization for the police to conduct the search conducted in this case. See Thein, 91 Wn. App.

at 483-84.

       Here, the five requirements for severability are met. First, the warrant lawfully authorized

entry into the van. Second, the probable cause to search for drugs supported the particular portions

of the warrant authorizing the search for evidence related to the possession of

methamphetamine. Third, the valid, unchallenged portion of the warrant constitutes a significant

portion of the warrant compared to the warrant as a whole. Fourth, the officers seized the

methamphetamine while executing the valid portions of the warrant. And fifth, the officers’ search

was not overbroad under the valid portions of the warrant.

       The challenged warrant provision was overbroad, but the overbroad portion can be severed

and redacted from the warrant leaving a valid warrant that authorized the search conducted and the

seizure of the methamphetamine found in Irwin’s backpack.




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No. 49572-4-II


        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.



                                                    SUTTON, J.
 We concur:



 WORSWICK, P.J.




 BJORGEN, J.




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