                                                                          FILED
                                                                       APRIL 24, 2018
                                                                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 WASINGTON,                           )
                                              )         No. 34935-7-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
LAURA JEAN TAYLOR,                            )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J.   -Laura Taylor appeals her conviction for possession of a controlled

substance, methamphetamine, arguing that the trial court erred in failing to grant her a

hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667

(1978). Because the trial court correctly determined that neither of the challenged

omissions were material, we affirm.

       At issue is methamphetamine discovered in Ms. Taylor's purse pursuant to a

search warrant issued to look for stolen property that might be found in the purse. 1 In

limited circumstances, the information contained in or omitted from a search warrant can

be challenged. Id. at 155-156. When information was deliberately or recklessly excluded


       1
        Ms. Taylor also was charged with one count of third degree possession of stolen
property. The jury was unable to return a verdict on that count and it is not at issue in
this appeal.
No. 34935-7-III
State v. Taylor


from an affidavit, a court is to add the information to the warrant and determine if

probable cause still exists. Id. at 171-172. If there is still probable cause, the motion will

be denied.2 Id. at 172. If there no longer is probable cause, then the challenger is entitled

to a hearing to attempt to establish the contention that the information was known to

police and required to be included in the affidavit. Id.

       We review a trial court’s decision to deny a Franks hearing for abuse of

discretion. State v. Wolken, 103 Wn.2d 823, 829, 700 P.2d 319 (1985). A search warrant

is presumed valid. State v. Chenoweth, 160 Wn.2d 454, 477, 158 P.3d 595 (2007). The

decision to issue a warrant is a discretionary action and, thus, doubts are resolved in favor

of the warrant. Id.; State v. Vickers, 148 Wn.2d 91, 108-109, 59 P.3d 58 (2002).

       The search warrant issued here for a purse belonging to Ms. Taylor that had been

discovered inside a larger purse that (allegedly) did not belong to her. The officer

checking for Ms. Taylor’s purse had discovered the smaller purse inside the larger bag,

but that information was not included in the search warrant, nor was the fact that no

stolen property or weapons were observed in either purse during pre-warrant search. Ms.

Taylor contends these were both important pieces of information for the issuing

magistrate to consider.


       2
         The same approach applies to false information that was deliberately or
recklessly included in the affidavit—delete the information and determine if probable
cause still exists. Franks, 438 U.S. at 171-172.


                                              2
No. 34935-7-III
State v. Taylor


       The trial court, however, determined the matters were not material in the Franks

meaning of the term. We agree. Even if the omitted facts had been included, probable

cause still existed to search the purse. Indeed, Ms. Taylor does not argue to the contrary.

The search warrant explained how she was contacted outside a mobile home from which

fixtures and other property had illegally been removed and told officers that her purse

was inside the residence. The warrant authorized police to search her purse and her

vehicle to recover items that might have been removed from the home.3

       Adding in language describing that Ms. Taylor’s purse allegedly was within

someone else’s purse does not alter the determination of probable cause related to her

purse. The warrant specifically requested authority to search Ms. Taylor’s purse located

in the mobile home. It specifically limited police to that container. Identifying that there

was a second bag might have been useful in determining whether the other bag should be

searched or not, but the police only requested authority to search Ms. Taylor’s purse, not

the larger bag. The information did not relate to the question of whether authority should

be granted to search Ms. Taylor’s purse. It was not material under Franks.




       3
          The affidavit also reported that when booked into the jail, items found in Ms.
Taylor’s pockets included an Allen wrench, screws, and washers. She told the officer
that the items had come from the mobile home.


                                             3
No. 34935-7-III
State v. Taylor


       Similarly, the fact that officers searched the purse without reporting discovery of

any stolen property was not material to the question of whether probable cause existed.

Even if a clearer statement of the initial purse search was included in the affidavit,4

probable cause still existed to search the purse. Ms. Taylor was caught at the scene;

efforts had been made to remove fixtures from the home; she had a tool for unfastening

items as well as fasteners she had removed from the house. It was reasonable to believe

that more such items might be found in the purse. Explicitly adding that a search for

identification had not uncovered any stolen property simply did not eliminate probable

cause to search the purse.5

       The trial court correctly concluded that the alleged omissions were not material

under Franks. There was no abuse of discretion by denying the request for a hearing.




       4
          Whether this information was omitted from the affidavit is a questionable
assertion. The affidavit in support of the search warrant does report that an officer
removed Ms. Taylor’s purse from the mobile home and obtained her identification from
the purse. Clerk’s Papers at 16. From that statement, a magistrate could (1) infer that the
officer did search the purse to some degree and, (2) since the officer did not report
recovering any stolen property, the magistrate also could infer that none was observed.
       5
         Details concerning the scope of the search were not provided, so we have no
information how thoroughly the purse was searched.


                                              4
No. 34935-7-III
State v. Taylor


      The conviction is affirmed.

      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.



WE CONCUR:




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