                                                                                 FILED

                                                                         December 3, 2013

                                                                    In the Office of the Clerk of Court
                                                                  W A State Court of Appeals, Division III




               IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                  DIVISION THREE

    STATE OF WASHINGTON,                         )
                                                 )         No. 30593-7-III
                         Respondent,             )
                                                 )
          v.                                     )
                                                 )
    JOHNNIE LLOYD TRAUB,                         )         UNPUBLISHED OPINION
                                                 )
                         Appellant.              )
j
                             A search warrant issued for what John Traub l contends was a
I          SIDDOWAY, J. -

    multi-dwelling residential building owned by his brother; while originally a single family

    home, Mr. Traub claims it was modified to include separate upstairs and basement
I
I   apartments. Mr. Traub claims that he lived upstairs and that a tenant lived in the



!   apartment downstairs.

          Probable cause arose supporting a search of the basement. Mr. Traub argues that

    the detective applying for the warrant relied upon that probable cause to prepare a



          1 We refer to the defendant as "John" Traub, the name by which he identified
    himself at trial. We make a few references to John's brother Rick Traub hereafter,
    always by his full name. Our references to "Mr. Traub" will always be to the defendant,
    John.
No.30593-7-III
State v. Traub

misleading affidavit requesting authority to search the entire building. The warrant

issued and when executed, officers discovered methamphetamine in Mr. Traub's

bedroom, leading to his arrest and conviction for possession of a controlled substance.

       Mr. Traub challenged both the affidavit in support ofthe warrant and the conduct

of officers who executed it, yet the focus ofthe suppression hearing and the court's

findings and conclusions was on execution ofthe warrant. Further findings and

conclusions are needed to determine whether the affidavit in support of the warrant was

deliberately or recklessly misleading and, if it was, whether a reformed affidavit fairly

representing the information available to the applicant would have established probable

cause supporting a search of the entire building. We remand for the further proceedings

needed to enter those findings and conclusions.

                    FACTS AND PROCEDURAL BACKGROUND

       Yakima County Sheriffs Deputy Christopher Stearley responded to a domestic

violence call at 3291 Kays Road in Wapato in March 2011. The dispatch indicated that

the alleged offender was in the basement of the residence. When Deputy Stearley arrived

at the Kays Road address, he was met by Robert Ross, who told the deputies that his

estranged wife Amber was in the basement and would not come out.

       The door to the basement of the residence was located on its west or southwest

side. Deputy Stearley tried to get Ms. Ross to come to the basement door but was

unsuccessful. Mr. Traub, whose name the deputy did not obtain but who the deputy


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No.30593-7-II1
State v. Traub

believed at the time was the homeowner,2 opened the basement door with a screwdriver.

Once able to enter, Deputy Stearley and other responding deputies questioned Ms. Ross

about the domestic violence complaint. The deputy determined from his conversation

with Mr. Ross and Mr. Traub that Ms. Ross was not paying any rent or utilities and had

no legal right to be present at the Kays Road address. He asked her to leave and, when

she was only marginally cooperative, eventually escorted her out of the residence, telling

her she would be arrested if she did not leave.

       While in the basement, Deputy Stearley saw upwards of 16 marijuana plants. Mr.

Ross had anticipated an issue over the plants and presented Deputy Stearley early on with

documents ostensibly authorizing him to grow medical marijuana. Unsure of the number

of plants one individual could have, Deputy Stearley contacted Robert Tucker, a detective

with the local drug task force. He described what he had seen and provided Detective

Tucker with the case number so that the detective could review the report that the deputy

would write and file as was required for domestic violence incidents.

       Detective Tucker reviewed Deputy Stearley's report and from it and other

information prepared an affidavit seeking a search warrant for 3291 Kays Road. While

Deputy Stearley's two-page report made eight references to having entered and


         2 The report stated, "It was then confirmed by the homeowner, of whom I did not
have contact with and therefore did not obtain their name, that Amber was not a resident
of the house and was no longer welcome there. Further investigation revealed Amber
had not signed a lease, did not get her mail at the apartment and has not paid any rent or
utilities in the day or two she had stayed there." Clerk's Papers at 23.

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No. 30593-7-111
State v. Traub

encountered Ms. Ross in a "basement apartment" or "apartment" at the Kays Road

address and a few other facts arguably suggesting a multi-dwelling building, the

detective's four-page affidavit in support of the search warrant did not describe 3291

Kays Road as comprising multiple units. It did not refer to any of the facts in Deputy

Stearley's report suggesting that Mr. Ross lived in an apartment, separate from the

portion of the building occupied by the "homeowner." It did state that "Deputy Stearley

stated he did not enter or observe the entire residence, since the situation took place in the

lower portion of the residence in [a] few rooms." Clerk's Papers (CP) at 16.

       The warrant authorized a search of the entire building at the address, which it

described as "a multi story residential home." CP at 20. Detective Tucker would later

testify that he learned that a multi-story residential home was at the Kays Road address

from the Yakima County geographic information services and assessor's websites. He

also evidently learned from that source that the owner of the property was Rick Traub, a

fact included in the search warrant. The detective's affidavit, on the other hand, did not

mention Rick Traub or John Traub, stating instead that deputies responding to the

domestic violence complaint "were able to determine that ROSS," who the deputy had

determined was a known and convicted drug user, "resided at 3291 Kays Road." CP at

16.

       When law enforcement officers executed the search warrant they entered through

the residence's main level front door, which was located on its east or northeast side-the


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No.30593-7-III
State v. Traub

opposite side ofthe building from the basement entrance used by the deputies who had

responded to the domestic violence incident. At the time officers arrived to execute the

search warrant, Mr. Traub was inside, on the main floor. He told the officers that he

lived there and that his bedroom was in the northwest comer. Officers found and seized

methamphetamine in Mr. Traub's bedroom.

       The State charged Mr. Traub with one count of possession of a controlled

substance (methamphetamine). He moved to suppress the evidence seized during the

execution of the search warrant.

       The parties' briefing of the suppression motion addressed two stages at which a

constitutional violation can occur where the search of multiple dwellings in a residential

building exceeds probable cause supporting the search of only a single dwelling. The

first stage is the warrant application stage, if the affidavit in support of a search warrant,

through intentional or reckless misrepresentations or omissions, implies that probable

cause supports a broader search. The second stage is the warrant execution stage, if

officers executing the warrant encounter evidence suggesting that the scope of the

warrant is too broad.

       At the hearing held on Mr. Traub's motion to suppress, the State offered a great

deal of evidence relevant to the warrant execution stage. The State's evidence of the

officers' good faith at the execution stage included photographs of the home taken from

its main entrance side. It included evidence (disputed by Mr. Traub) that officers


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No. 30593-7-111
State v. Traub

executing the warrant encountered an interior door from the upstairs to the basement that

was open and unsecured.

       At the conclusion of the suppression hearing, the trial court denied the motion to

suppress, explaining its ruling with reference to all of the evidence presented by the

parties. Neither its oral ruling nor the findings and conclusions that were entered later

addressed whether, focusing on only the information known to Detective Tucker in

applying for the search warrant, the detective misrepresented or omitted information that

was critical to the broad scope of the search warrant.

       Following the suppression decision, Mr. Traub proceeded to a stipulated facts trial,

where he was convicted as charged. He was sentenced to 15 days' confinement.

Although he asked the trial court not to impose community custody, the court denied his

request, stating its belief that it was required by law to impose a period of community

custody. The judgment and sentence imposed community custody. Mr. Traub appeals ..

                                        ANALYSIS

       Mr. Traub raises only two issues on appeal. As to the second-whether the trial

court erred by failing to recognize its discretion not to impose community custody-the

State concedes error. We accept the State's concession; the trial court was not required to

impose community custody. See RCW 9.94A.702(1)(d) (court "may" impose up to one

year of community custody where offender is sentenced to a term of confinement for one

year or less for a felony violation of chapter 69.50 RCW). A trial court's failure to exercise



                                             6

No.30593-7-III
State v. Traub

discretion is an abuse of discretion. State v. Flieger, 91 Wn. App. 236,242,955 P.2d 872

(1998). If Mr. Traub's conviction stands following future proceedings, the trial court

should exercise its discretion to determine whether or not to impose community custody.

       Mr. Traub's remaining assignment of error is to the trial court's denial of his

motion to suppress evidence seized in the search of3291 Kays Road. We review a trial

court's decision on a suppression motion for an abuse of discretion. See State v.

Witte n barger, 124 Wn.2d 467,490,880 P.2d 517 (1994). "A trial court abuses its

discretion only when its decision is manifestly unreasonable or is based on untenable

reasons or grounds." State v. C.J., 148 Wn.2d 672, 686,63 P.3d 765 (2003) (citing State

v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997)).

       In reviewing a suppression decision, unchallenged findings of fact are treated as

verities on appeal. State v. Hill, 123 Wn.2d 641,644,870 P.2d 313 (1994). Mr. Traub

does not assign error to any of the trial court's findings, which we treat as verities. We

engage in de novo review of conclusions of law to which error is assigned. State v.

Garvin, 166 Wn.2d 242,249,207 P.3d 1266 (2009). Mr. Traub assigns error to five of

the trial court's conclusions of law. 3


       3 He assigns error to conclusions 1 ("There was sufficient probable cause for the
issuance ofthe search warrant in this case."), 5 ("The search of the residence was not
beyond the scope permitted."), 6 ("The search of the upper level of the residence was not
excessive. "), 7 ("The observations of the officers executing the search warrant did not
indicate that the residence was a multi-unit residence."), and 8 ("Nothing indicated that
the use of the premises was restricted to certain residents of the home. Nothing alerted
the officers that there were separate residences within the home."). Br. of Appellant at 1.

                                             7

No.30593-7-III
State v. Traub

                             Probable cause must exist for searching 

                        the entire premises covered by a search warrant. 


       Since at least   1918~   federal statutes have required search warrants to be supported

by a signed affidavit specifically setting forth the facts comprising probable cause. State

v. Chenoweth, 160 Wn.2d 454,467, 158 P.3d 595 (2007) (citing Byars v. United States,

273 U.S. 28, 29, 47 S. Ct. 248, 71 1. Ed. 520 (1927)). Washington law has required

either a signed affidavit or a contemporaneous record ofthe basis for a magistrate's

probable cause determination since CrR 2.3 was adopted in 1973. The sworn testimony

to support the warrant must state the underlying facts and circumstances on which it is

based in order to facilitate a detached and independent evaluation of the evidence by the

issuing magistrate. State v. Smith, 93 Wn.2d 329,352,610 P.2d 869 (1980).
                                                              4
       "The oath requirement [of the Fourth Amendment             ]   'takes the affiant's good faith

as its premise,'" and "implicitly protects [a defendant] from reckless or deliberate

fabrication of the factual allegations comprising probable cause." Chenoweth, 160

Wn.2d at 471 (quoting Franks v. Delaware, 438 U.S. 154, 164,98 S. Ct. 2674,571. Ed.

2d 667 (1978)). Under both the Fourth Amendment and article 1, section 7 of the

Washington Constitution, factual inaccuracies or omissions in a warrant affidavit may

invalidate the warrant if the defendant establishes that they are material and made in




      4 The warrants clause of the Fourth Amendment provides, "no warrants shall issue,
but upon probable cause, supported by oath or affirmation." U.S. CONST. amend. IV.

                                                 8

No.30593-7-III
State v. Traub

reckless disregard for the truth. Franks, 438 U.S. at 155-56; State v. Seagull, 95 Wn.2d

898,908,632 P.2d 44 (1981).

       Mr. Traub contends that Detective Tucker's affidavit contained inaccuracies or

omissions suggesting a broader scope for searching the Kays Road residence than was

supported by probable cause. Probable cause for a warrant exists if the affidavit in

support sets forth facts and circumstances sufficient to establish both a reasonable

inference that the defendant is probably involved in criminal activity and--critical here-

that evidence of the crime can be found at the place to be searched. State v. Thein, 138

Wn.2d 133, 140,977 P.2d 582 (1999).

       The requirement of a nexus between the evidence of crime reasonably expected to

be found and the place to be searched has special application in the case of multi­

dwelling residential buildings. A warrant for a multi-dwelling residence will typically be

held invalid as not sufficiently particular if it fails to describe the dwelling unit or units to

be searched with sufficient definiteness to prevent an indiscriminate search extending to

other units. State v. Alexander, 41 Wn. App. 152, 153-54,704 P.2d 618 (1985); United

States v. Higgins, 428 F.2d 232,235 (7th Cir. 1970) ("'For purposes of satisfying the

Fourth Amendment, searching two or more apartments in the same building is no

different than searching two or more completely separate houses. Probable cause must be

shown for searching each.'" (quoting United States v. Hinton, 219 F.2d 324, 325 (7th Cir.

1955»). Mr. Traub argues that the information known to Detective Tucker at the time he


                                                9

No.30593-7-III
State v. Traub

prepared his affidavit provided probable cause for searching only Mr. Ross's basement

apartment, not the entire residential building.

       There are two recognized exceptions to the general rule invalidating an overbroad

warrant to search a multi-dwelling residential building: the "multiple unit" exception and

the "community living unit" exception. Alexander, 41 Wn. App. at 154. Even if the

building proves to include multiple dwelling units, the warrant will be found valid if one

of the two exceptions apply. Id.

       Under the "multiple unit exception," if a building appears to be a single family

residence and neither the affiant nor the investigating or executing officers knew or had

reason to know of the building's actual multi-dwelling character until execution of the

warrant was under way, the warrant is not defective for failure to specify a dwelling. Id.

In upholding such searches, courts have required that, upon discovery of multiple

occupancy, reasonable efforts be made to limit the search to the dwelling most likely

connected to the criminal activity identified in the warrant. Id.

       The "community living unit" exception applies where several individuals or

families occupy the building in common rather than individually, such as where they

share common living quarters but have separate bedrooms. Id. at 154-55. In the

community living unit context, the courts have held that a single warrant describing the

entire building is valid and justifies a search of the entire premises. Id. at 155.




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No. 30593-7-111
State v. Traub

       In light of this authority, two bases for suppression were presented by Mr. Traub's

motion and the evidence presented by the parties at the suppression hearing, which we

address separately.

               Maryland v. Garrison challenge to execution o/the warrant.

       In defending against the motion to suppress, the State placed substantial reliance

on Maryland v. Garrison, 480 U.S. 79, 107 S. Ct. 10 13, 941. Ed. 2d 72 (1987). In that

case, officers executed a warrant authorizing them to search '''the premises known as

2036 Park Avenue third floor apartment,'" reasonably believing at the time they applied

for the warrant and conducted the search that there was only one apartment located on the

third floor at that address. 480 U.S. at 80. In fact, there were two apartments on the third

floor, occupied by different residents. Before the officers became aware of that fact,

however, they had discovered the contraband that they later sought to offer at trial.

Lower courts reviewing the defendant's challenge to the search warrant found that the

State had made no misrepresentation or omission in the process of applying for the

warrant and that it was validly issued. The Supreme Court agreed.

       Relevant here, a second question addressed in Garrison was whether the execution

o/the warrant violated the defendant's constitutional right to be secure in his home. The

Court held that "as the officers recognized, they were required to discontinue the search

of respondent's apartment as soon as they discovered that there were two separate units

on the third floor and therefore were put on notice of the risk that they might be in a unit


                                             11 

No.30593-7-II1
State v. Traub

erroneously included within the terms of the warrant." Id. at 87. The Court found no

constitutional violation in the execution of the warrant, however, because the officers

acted in good faith based upon the warrant up until they discovered the contraband and

for some time thereafter. "[T]he officers' conduct was consistent with a reasonable effort

to ascertain and identify the place intended to be searched within the meaning of the

Fourth Amendment." Id. at 88.

       In the suppression hearing below, the State relied upon this second holding of

Garrison and focused much of its evidence and argument on what it argued was the good

faith conduct of the officers who executed the warrant. The trial court's findings and

conclusions largely address facts bearing on the constitutionality of the conduct of

officers executing the warrant Mr. Traub does not argue on appeal that the State violated

his constitutional rights in the process of executing the warrant. 5

             Franks v. Delaware challenge to the search warrant application.

       Mr. Traub's other basis for suppression was that the warrant itselfwas invalid

under Franks and Seagull, because Detective Tucker's affidavit included factual

inaccuracies or omissions that were material and made in reckless disregard for the truth.

For purposes of this sort of challenge, the proper procedure is to conduct what we have

come to refer to as a Franks hearing.


       5 Some ofthe conclusions of law to which Mr. Traub assigns error relate to the
officers' conduct in executing the warrant, but his legal argument does not challenge the
execution of the warrant.

                                              12 

No. 30593-7-111
State v. Traub

       We begin with the presumption that the affidavit supporting a search warrant is

valid. State v. Atchley, 142 Wn. App. 147, 157, 173 P3d 323 (2007). To be entitled to a

Franks hearing, a defendant must make a substantial preliminary showing that the

affidavit includes deliberate or reckless inaccuracies or omissions. "If the defendant

makes this preliminary showing, and at an evidentiary hearing establishes the allegations

by a preponderance of the evidence, the material misrepresentation will be stricken from

the affidavit and a determination made whether, as modified, the affidavit supports a

finding of probable cause." Chenoweth, 160 Wn.2d at 469. The Franks test for material

misrepresentations also applies to allegations of material omissions. State v. Cord, 103

Wn.2d 361, 367, 693 P.2d 81 (1985). If the affidavit, reformed to correct material

inaccuracies or omissions, fails to support probable cause, the warrant will be held void

and evidence obtained pursuant to it will be excluded. Chenoweth, 160 Wn.2d at 469.

      The Franks hearing procedure was not followed in the trial court. Instead, the

court conducted a single evidentiary hearing on Mr. Traub's motion to suppress. This

would not be a problem if the court had been able to adapt the combined hearing to

undertake the analysis required by Franks and Seagull. Here, though, the court's findings

and conclusions do not resolve the issues that control the Franks challenge.

       Without suggesting the findings and conclusions that the trial court should reach,

we conclude that the trial court could find that Mr. Traub made the required showings of

reckless representations or omissions having an impact on the proper scope of probable


                                            13 

No. 30593-7-111
State v. Traub

cause, depending on its assessment of credibility and the weight it attaches to the

evidence. As argued by Mr. Traub, Deputy Stearley's report suggested that from the time

he and other officers received the first report of the domestic violence incident from

dispatch, they knew they were responding to an apartment. The first four sentences of

Deputy Stearley's report state:

              On 3-19-2011 I was dispatched to 3291 Kays Road with the report
       of a domestic violence malicious mischief. Dispatch advised that Amber
       Ross had broken out a window at the above stated address and was
       currently sitting in the down stairs apartment.
              Upon arrival I met with Robert Ross who stated he was Amber's
       husband. Robert further stated he had arrived home to find Amber had
       smashed out the front windshield of a truck he had purchased and was
       currently in the basement apartment and would not open the door.

CP at 23. The remainder of Deputy Stearley's two-page report referred to Mr. Ross's

residence as an "apartment" six more times. 6

       In addition to its references to an apartment, the report recounted the fact-

anomalous, if this were a single family residence-that "after several attempts to get

Amber to come to the door, the owner of the house managed to open the [exterior

basement] door with a screwdriver." CP at 23.




       6 "Once inside the basement apartment I found Amber"; "Further investigation
revealed Amber had not signed a lease, did not get her mail at the apartment"; "Amber
... continued to walk about the apartment at random"; "Amber ran back into the
apartment, after being told she could not go back in"; "[Amber] pick[ed] up a item she
had dropped while stating she was going to go back into the apartment"; and "During the
attempt to remove her from the apartment." CP at 23-24.

                                            14 

No. 30593·7·111
State v. Traub

       Detective Tucker's affidavit in support ofthe search warrant appears to have been

based upon a painstaking review of Deputy Stearley's report. Given the evident care

with which the deputy's report was reviewed, the question arises whether the detective's

selection of which details to include or exclude was his good faith assessment oftheir

relevance to probable cause or, instead, the prospect that particular details would enhance

or might undercut probable cause for the broadest possible search.

       In determining the existence of probable cause under Franks, Washington has

rejected the position taken by some federal courts 7 that the trial court can infer

recklessness from the omission of facts clearly critical to a finding of probable cause; in

State v. Garrison, our Supreme Court adopted the view ofthe Fourth Circuit that to do so

'" [would collapse] into a single inquiry the two elements-"intentionality" and

"materiality"-which Franks states are independently necessary.'" State v. Garrison,

118 Wn.2d 870, 873, 827 P.2d 1388 (1992) (quoting United States v. Cotkley, 899 F.2d

297,301 (4th Cir. 1990)). On the other hand, the intent with which an act is done is

rarely susceptible of proofby direct evidence; generally, the evidence must be of a

circumstantial character with intent or recklessness inferred from the acts and conduct of

the actor. State v. Savage, 94 Wn.2d 569,587,618 P.2d 82 (1980); State v. Kennedy, 19

Wn.2d 152, 158, 142 P.2d 247 (1943).




       7   E.g., United States v. Gifford, 727 F.3d 92,98-99 (1st Cir. 2013).

                                               15
No. 30593-7-111
State v. Traub

       As pointed out in United States v. Tate, which specifically addressed the trial

court's task where a Franks challenge is based on omissions,

       an affidavit offered to procure a search warrant "cannot be expected to
       include ... every piece of information gathered in the course of an
       investigation." And because every piece of information cannot be expected
       to be included, the very process of selecting facts to include for the
       demonstration of probable cause must also be a deliberate process of
       omitting pieces of information. Certainly, such intentional omissions do
       not satisfy the requirement of Franks . ...
               To satisfy the Franks' intentional or reckless falsity requirement for
       an omission, the defendant must show that facts were omitted "with the
       intent to make, or in reckless disregard of whether they thereby made, the
       affidavit misleading." Stated otherwise, the omission must be "designed to
       mislead" or must be made "in reckless disregard ofwhether [it} would
       mislead."

524 FJd 449, 455 (4th Cir. 2008) (first and third alterations in original) (citations

omitted) (quoting Colkley, 899 F.2d at 300,301).

       The determinations required by Franks are properly made by the trial court. We

therefore decline to grant the remedy requested by Mr. Traub, which was that we draw

our own conclusion that the methamphetamine found in Mr. Traub's bedroom should

have been suppressed and reverse his conviction. We instead exercise our discretion to

"take any other action as the merits of the case and the interest ofjustice may require"

and remand for the trial judge's determination of the matters required by Franks. RAP

12.2; see RAP 12.3(b). In making that determination, the trial court should limit its

consideration of evidence to the information available to Detective Tucker at the time he

prepared his affidavit in support of the search warrant, disregarding the evidence of later


                                             16 

No.30593-7-III
State v. Traub

events presented at the earlier suppression hearing. We leave it to the trial court's

discretion whether to take additional evidence in light of the passage of time or the nature

of the determinations to be made.

       We retain jurisdiction and remand for the trial judge to make the determinations

required by Franks. In future proceedings, the trial court should also exercise its

discretion whether to order community custody. The parties may (but need not) file

supplemental briefing addressing the issue of the validity of the search warrant in light of

the determinations to be entered by the court.

       A majority of the panel has determined that 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:




~.J.             C:J 





                                             17 

