       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
 STATE OF WASHINGTON,                            No. 77933-8-1

                             Respondent,         DIVISION ONE
               V.
                                                 UNPUBLISHED OPINION
 TACEY LYNN SMITH,

                            Appellant.          FILED: April 15, 2019


       CHUN, J. — Tacey Smith lost control of her car and collided with two other

vehicles. A paramedic transported her to the hospital. The police observed

signs of intoxication and obtained a search warrant for a blood draw. Blood tests

revealed a blood alcohol content(BAC) of 0.13 and 4.0 nanograms of THC.1 A

jury convicted Smith of vehicular assault.

       On appeal, Smith claims a lack of probable cause to support the search

warrant authorizing the blood draw. She says the warrant declaration failed to

state the basis for the Trooper's knowledge that she had been driving. Smith

additionally challenges the trial court's imposition of a $200 criminal filing fee.

We remand the judgment and sentence to strike the criminal filing fee, but

otherwise affirm.




       I Tetrahydrocannabinol(THC)acts as the intoxicating chemical in marijuana.
No. 77933-8-1/2


                                            I.
                                       BACKGROUND
        On July 2, 2015, several witnesses observed a motor vehicle accident on

State Route (SR)5252 when a white car traveling south in the right lane hit a

truck. The car then skidded and flipped over the median, colliding with a red

SUV traveling north on SR 525.

        Eric Anderson, a firefighter paramedic, arrived at the accident scene.

Anderson approached the white vehicle and saw a barely-conscious female

driver "slumped" over. Anderson identified the driver as Smith. He transported

Smith to Providence Hospital.

        Trooper Christopher Hooper went to the hospital to see Smith. When he

spoke with her, he could smell intoxicants and observed horizontal gaze

nystagmus(HGN), an "involuntary jerkiness" of the eyes that can result from

alcohol consumption. He further saw she had bloodshot eyes.

        Based on these observations, Trooper Hooper sought a warrant for

Smith's blood. His declaration alleged as follows:
        Smith was traveling southbound on SR 525 in lane 2 of 2 at SR
        99. Smith rear ended the vehicle in front of her and lost control
        traveling over the raised curbing (island) and colliding head on
        with a vehicle in lane 2 of 2 of northbound SR 525.

        The facts supporting my belief that Smith, Tacey L is under the
        influence of intoxicating liquor, marijuana, or any drug and/or is
        affected by intoxicating liquor, marijuana or any drug are as follows:

        Smith was transported to Providence Colby Hospital for her injuries.
        I contacted Smith who has been consistently treated by medical staff.
        Smith has injuries to her ankle and possibly her hip. ... I have been


        2 SR 525 consists of four lanes with two lanes traveling north and two traveling south. A
low, concrete median separates the northbound and southbound lanes.


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No. 77933-8-1/3

       unable to speak to Smith face to face due to her being constantly
       treated. To this point no medications have been given to Smith.

       The driver of the vehicle that Smith collided with head on was
       transported to Harborview, unknown at this time the extent of the
       injuries.

       Once Smith was back from CAT Scan and X-Ray I was able to speak
       to her. Smith has the odor of intoxicants coming from breath and her
       eyes are bloodshot. When Smith looked at me,to the left I could see
       obvious HGN.

The declaration additionally stated Trooper Hooper based his beliefs "upon

information acquired through personal interviews with witnesses and other law

enforcement officers, review of reports and personal observations."

       A district court judge reviewed the search warrant and declaration and

found "probable cause that evidence of the crime of DUI will be found in the

blood of Ms. Smith." Later testing of the blood sample revealed a BAC of 0.13

and 4.0 nanograms of THC.

       On October 12, 2016, the State charged Smith with one count of vehicular

assault.

      On October 17, 2017, Smith moved to suppress the results of the blood

tests. Smith argued the warrant failed to establish probable cause for a blood

sample because the declaration contained merely a conclusory statement that

she acted as a driver.

      The court deemed the declaration factually sufficient to show Smith had

been driving. As such, it denied the motion to suppress.




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No. 77933-8-1/4


       Smith proceeded to trial and the jury found her guilty. The court

sentenced Smith to 11 months of confinement and imposed a $200 criminal filing

fee. She appeals.
                                       II.
                                    ANALYSIS
       A court may issue a search warrant only upon a showing of probable

cause. State v. Youngs, 199 Wn. App. 472, 475, 400 P.3d 1265 (2017). The

affidavit or declaration supporting a warrant "must contain sufficient facts to

convince an ordinary person that the defendant is probably engaged in criminal

activity." Youngs, 199 Wn. App. at 475.

       When deciding whether to issue a search warrant, courts must follow the

fundamental principle that "the determination of probable cause must be made by

a magistrate based on the facts presented to the magistrate, instead of being
                                                            ,
made by police officers in the field." State v. Lyons, 174 Wn.2d 354, 360, 275

P.3d 314 (2012). Thus, conclusory statements alone may not support a search

warrant. State v. Stephens, 37 Wn. App. 76, 79,678 P.2d 832(1984). The

court, however, may draw reasonable inferences from the facts provided in the

affidavit or declaration. Youngs, 199 Wn. App. at 476.

      "[Alt [a] suppression hearing the trial court acts in an appellate-like

capacity." State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008). Therefore,

appellate courts review de novo a trial court's assessment of probable cause.

Neth, 165 Wn.2d at 182. We additionally limit our review to the four corners of

the declaration supporting probable cause. Neth, 165 Wn.2d at 182.




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No. 77933-8-1/5


       Here, Smith challenges the declaration supporting the search warrant for a

blood draw because it "failed to state a sufficient factual basis for [Trooper

Hooper's] belief that Smith was driving." We uphold the warrant.

       Smith compares her case favorably with Youngs, in which a magistrate

issued a warrant for a blood draw pursuant to an affidavit providing that the

defendant "was involved" in a car accident and an officer had subjected him to

sobriety tests. Youngs, 199 Wn. App. at 481-82. However, the affidavit failed to

explain how the vehicular accident had involved the defendant. Because the

affidavit failed to provide "sufficient facts to allow a magistrate to make an

independent decision whether probable cause exist[ed] to show [the defendant]

was driving," this court deemed the warrant invalid. Youngs, 199 Wn. App. at

482.

       In contrast, here, as Smith concedes,"the [declaration] sufficiently alleged

Smith was driving at the time of the collision." She argues, however, the warrant

nevertheless lacked probable cause because the declaration "does not state the

basis for Trooper Hooper's knowledge that Smith was driving at the time of the

collision." We determine the case law does not require such detail.

       "Technical requirements of elaborate specificity once exacted under

common law pleadings have no proper place" in the evaluation of search warrant

affidavits or declarations. State v. Patterson, 83 Wn.2d 49, 54, 515 P.2d 496

(1973). Where the affiant has detailed the circumstances underlying the affidavit

and credited the source of the information and a judge has found probable

cause,"the courts should not invalidate the warrant by interpreting the affidavit in


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No. 77933-8-1/6


a hypertechnical, rather than a commonsense, manner." Patterson, 83 Wn.2d at

54-55.

       The declaration in this case provided details of the motor vehicle accident

underlying the search warrant. It specified Smith had been driving and lost

control of her vehicle, resulting in the collisions. Trooper Hooper further stated

that he based the facts stated in the declaration "upon information acquired

through personal interviews with witnesses and other law enforcement officers,

review of reports and personal observations." That this line constituted part of a

pre-printed form does not render it insufficient as an explanation of the basis of

Trooper Hooper's statements. See Youngs, 199 Wn. App. at 485 (noting law

enforcement may use preprinted forms for search warrant affidavits). The

information enabled the judge to independently determine whether probable

cause existed and we will not engage in a "microscopic examination" of the

warrant to invalidate it. See Patterson, 83 Wn.2d at 54-55. The trial court did not

err in upholding the warrant.

       Lastly, Smith asks this court to strike the $200 criminal filing fee imposed

in her sentence. Under State v. Ramirez, a trial court may not impose a criminal

filing fee on an indigent criminal defendant. 191 Wn.2d 732, 739, 426 P.3d 714

(2018). Here, Smith claimed indigency and requested the court appoint an

attorney and allow her to seek appellate review at public expense. The motion

provided that she did not have a job, an income, or any assets. The court found

her indigent and granted the motion. This sufficiently demonstrates Smith's

indigency at the time of sentencing.


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No. 77933-8-1/7


       We remand to the trial court to strike the criminal filing fee from Smith's

judgment and sentence, and affirm in all other respects.




WE CONCUR:



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