                                                                       FILED 

                                                                  SEPTEMBER 1,2015 

                                                               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 WASHINGTON,                         )
                                             )         No. 32406-1-111
                     Respondent,             )
                                             )
      v.                                     )
                                             )
JOSE MARTINEZ II,                            )         UNPUBLISHED OPINION
                                             )
                     Appellant.              )

      KORSMO, J. -    The remaining issue in this third appeal of this case is whether the

trial court erred in denying Jose Martinez's motion to suppress. We affirm.

                                         FACTS

      The operative facts of this case are largely procedural. Mr. Martinez was charged

in 2008 with three counts of possession of cocaine with intent to deliver and

accompanying school bus stop enhancements. The charges followed a series of

controlled buys by an informant that led to the issuance of a search warrant. Defense

counsel filed a motion to suppress the evidence, alleging that the search warrant was

inadequate because it merely used the words "controlled buy" without adequately

describing the process. The motion, however, was never heard because a plea agreement
No. 32406-I-III
State v. Martinez


was reached. Mr. Martinez pleaded guilty to one count (without an enhancement) and

was sentenced to 20 months of confinement.

       The following year he moved to withdraw his guilty plea on the basis that his

counsel failed to provide adequate information concerning the immigration consequences

of his guilty plea. This court granted him relief after determining that his trial counsel

failed to provide effective assistance. State v. Martinez, 161 Wn. App. 436, 253 P.3d 445

(2011).

       Represented by new counsel, Mr. Martinez stood trial on the original charges.

New counsel did not renew the original motion to suppress. A jury found Mr. Martinez

guilty on two counts and also found both enhancements proven. He was sentenced to 68

months in prison. He appealed again to this court.

       In the second appeal, he argued that his most recent trial counsel had performed

ineffectively by not renewing the challenge to the search warrant. 1 Because the record

was insufficient to adjudge the ineffective assistance claim, this court remanded for a

suppression hearing in accordance with the decision in State v. Jansen, 15 Wn. App. 348,

549 P.2d 32, review denied, 87 Wn.2d 1015 (1976).2 See State v. Martinez, noted at 178




       I   He also raised several other arguments that we concluded were without merit.
      2 We discuss Jansen more fully later in this opinion.



                                              2

No. 32406-1-III
State v. Martinez


Wn. App. 1031 (2013) (Martinez II). Mr. Martinez did not seek review of our decision.

The case was mandated back to the Walla Walla Superior Court.

       At the suppression hearing, the trial court considered the testimony of both the

detective who prepared the search warrant affidavit and the magistrate who issued the

search warrant. Both testified that they understood the term "controlled buy" to mean a

situation in which an informant agrees to purchase drugs at a particular location, is

searched for the presence of controlled substances, is given money with which to

purchase a controlled substance, is observed by law enforcement enter into the company

of the suspect, and is searched again upon the informant's return with the purchased

substance. Clerk's Papers (CP) at 161-162. The trial judge found this testimony credible

and concluded that the officer used the phrase as a "term of art" and that the issuing

magistrate likewise understood it in the same manner. The motion to suppress was

denied. CP at 163.

       Mr. Martinez again appealed to this court.

                                         ANALYSIS

       The sole issue in this appeal is whether the trial court correctly denied the motion

to suppress. We agree with the trial court that the search warrant established probable

cause to search Mr. Martinez's residence.

       Probable cause to issue a warrant is established if the supporting affidavit sets forth

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

                                               3

No. 32406-1-III
State v. Martinez


criminal activity." State v. Hujt, 106 Wn.2d 206,209, 720 P.2d 838 (1986). The affidavit

must be tested in a commonsense fashion rather than hypertechnically; doubts are resolved

in favor of the warrant. State v. Partin, 88 Wn.2d 899, 904, 567 P.2d 1136 (1977). The

existence of probable cause is a legal question which a reviewing court considers de novo.

State v. Chamberlin, 161 Wn.2d 30, 40, 162 P.3d 389 (2007). Despite the fact that de novo

review applies to questions of law rather than discretionary decisions, "[g]reat deference is

accorded the issuing magistrate's determination of probable cause." State v. Cord, 103

Wn.2d 361, 366, 693 P.2d 81 (1985). Even if the propriety ofissuing the warrant were

debatable, the deference due the magistrate's decision would tip the balance in favor of

upholding the warrant. State v. Jackson, 102 Wn.2d 432, 446, 688 P.2d 136 (1984). In

light of the deference owed the magistrate's decision, the proper question on review is

whether the magistrate could draw the connection, not whether he should do so.

       Washington continues to apply the former AguilarlSpinellP standards to assess the

adequacy of a search warrant affidavit. Jackson, 102 Wn.2d at 446. 4 As applied in

Washington, probable cause based on an informant's information requires that an affidavit

establish both the informant's reliability and basis of knowledge. Id. at 443. Where one or




       3 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).
        4 Federal courts now apply a totality of the circumstances test in evaluating the
sufficiency of a search warrant. Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed.
2d 527 (1983).

                                              4

No. 32406~ I-III
State v. Martinez


both of those factors is weak, independent police investigation can supply corroboration. Id.

at 445.

          Police frequently use infonnants to make purchases of controlled substances. A

properly conducted controlled buy makes an infonnant a credible source of infonnation.

E.g., State v. Casto, 39 Wn. App. 229, 234-235, 692 P.2d 890 (1984). The reason was

explained:

          In a "controlled buy," an infonnant claiming to know that drugs are for sale
          at a particular place is given marked money, searched for drugs, and
          observed while sent into the specified location. If the infonnant "goes in
          empty and comes out full," his assertion that drugs were available is
          proven, and his reliability confinned. Properly executed, a controlled buy
          can thus provide the facts and circumstances necessary to satisfy both
          prongs of the test for probable cause.

Id.

          This court has suggested that a controlled buy must be described in order to

provide a basis for assuring the informant's reliability. State v. Taylor, 74 Wn. App. 111,

122,872 P.2d 53 (1994). In our Martinez II opinion, we recognized that this aspect of

Taylor was dicta. See Martinez II at *2. Our opinion also discussed Jansen. Id.

          Jansen presented a factually similar problem to that presented in Martinez II.

There, as in this case, the search warrant affidavit discussed the use of a "controlled buy"

without describing how the controlled buy was conducted. 15 Wn. App. at 349. The

prosecutor sought to call the magistrate who issued the warrant to testify at the

suppression hearing that he knew the words "controlled buy" were a tenn of art and also

                                               5

No. 32406-1-II1
State v. Martinez


argued that the trial judge should have taken judicial notice of the meaning. ld. at 350.

Division One of this court remanded the case for the State to offer proof that the detective

and the magistrate both considered the phrase a term of art. ld. at 351.

       Under the circumstances 5 of this case, we followed Jansen in the previous appeal

and remanded for a suppression hearing. Mr. Martinez's primary argument here is that

this court erred in following Jansen. His argument that we should not have remanded for

hearing fails under the law of the case doctrine. Folsom v. County a/Spokane, III

Wn.2d 256, 263-265, 759 P.2d 1196 (1988). He did not seek further review of Martinez

II and, instead, accepted the benefit of the suppression hearing. Absent a showing that

our previous decision was clearly erroneous and harmful, that decision stands. ld. at 264.

       His more significant claim in this regard is that Jansen was wrongly decided

because Washington courts are limited to the four corners of the search warrant affidavit.

See State v. Neth, 165 Wn.2d 177, 182, 196 P3d 658 (2008). 6 This argument is actually




       5 Critical to the previous appeal was the fact that the unnoted motion had never
been heard, leaving the State no opportunity to provide its evidence. An entirely different
situation would have been presented if a hearing had been held and the State had
neglected to present evidence. Then the State would have been limited to the record
made below, although it would still have been free to argue that "controlled buy" is a
term of art.
       6 Neth is the first Washington Supreme Court case to state that principle, but it did
so as part of its recitation of search warrant review standards. The issue was not before
the court in Neth.

                                             6

No. 32406-1-III
State v. Martinez


a challenge to a portion of erR 2.3, the rule governing search warrants. In part, that rule

pennits a judge to take-and make a record of--evidence that it is outside the search

warrant affidavit in support of its probable cause detennination. Mr. Martinez's

argument misses the mark because the trial court was not asked to consider evidence

outside the four comers of the affidavit. Instead, it was asked to detennine the meaning

of evidence found in the affidavit-the meaning of "controlled buy." Under Jansen, the

State was permitted to put forth evidence of the magistrate's understanding of the phrase

that he had considered as part of his determination of probable cause. Extrinsic evidence

is permitted to explain the meaning of tenns of a contract. Berg v. Hudesman, 115

Wn.2d 657,801 P.2d 222 (1990). Jansen, well ahead of Berg, essentially applied the

same principle to search warrant affidavits.

       For both reasons, we conclude that the trial court did not err in considering

evidence of the meaning attributed to the words "controlled buy" by both the issuing

magistrate and the detective who prepared the affidavit in support of the search warrant.

This court directed the trial court to follow Jansen and Washington law does not conflict

with that decision. Accordingly, both of Mr. Martinez's challenges to the suppression

hearing procedure fail.




                                               7

No. 32406-1-III
State v. Martinez


       His remaining challenge is a contention that the search warrant affidavit did not

establish probable cause because it did not establish that the informant was credible. 7 We

disagree. First, the fact that the informant successfully set up the controlled buys

established both his veracity and the reliability of his information. Casto, 39 Wn. App. at

234-235. Second, most of the informant's information was corroborated by the officers

conducting surveillance of the controlled buys. Although much of that corroboration

enhanced the informant's reliability, it secondarily supported his credibility.

       The affidavit describes three controlled buys connected to the defendant's

residence. 8 On the first occasion, the middleman went into the alley behind Mr.

Martinez's house and came back soon thereafter with cocaine. On the other two

occasions, the middleman went into Mr. Martinez's house and returned to the informant

with cocaine. Although the description of these three incidents could have been more

detailed, it was sufficient for the magistrate to find probable cause to believe cocaine was

being delivered from the Martinez residence. Three deliveries of cocaine were made to

the informant, under police surveillance, by a man who twice entered the residence and



      7 To the extent that Mr. Martinez argues that probable cause to search his house
was lacking because the middleman actually transferred the drugs outside of his
residence, his argument fails under a very factually similar case, State v. Mejia, 111
Wn.2d 892, 901, 766 P.2d 454 (1989).
        8 Only one of the counts filed against Mr. Martinez involved an incident described
in the search warrant. The other delivery count was not connected to the house and the
remaining count involved the cocaine found when the warrant was served.

                                             8

No. 32406-I-III
State v. Martinez


once went to the back alley of the residence before returning to the informant with

cocaine. A reasonable person could conclude that cocaine was being sold from the

residence.

       Probable cause existed to issue the search warrant. The magistrate did not err by

approving the warrant. The trial court correctly denied the motion to suppress.

       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.


                                                       K1smo, J.

WE CONCUR: 





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