0 cr>o -<cr o-> >S5 C_ —t , m

— >** CO as^,- ")N >~0t 4B1 com; 3C EE>- 2:r~ K£i cr>co
en —'C3 O

— GT» 2< 

## IN THE COURTOFAPPEALSOFTHE STATEOFWASHINGTON

ERROL CHARLES SPEED, Appellant,

v. STATE OF WASHINGTON, Respondent. No. 72302-2-1 DIVISION ONE UNPUBLISHED OPINION
FILED: June 13, 2016 

### Appelwick, J. — Speed was convicted of violations of San Juan County 

### Code after evidence of the violations was found on his property during the execution of a search warrant. Speed asserted that the evidence obtained during the execution of the search warrant should be suppressed, becausethe probable
cause to support the warrant was based on an earlier unconstitutional search of his property via aerial images. And, he argued that the warrant was invalid, 

### because a tipthat led to the initiation ofthe investigation was unreliable and this fact was improperly omittedfromthewarrantapplication. Thedistrict courtdenied Speed's motion to dismiss or suppress the evidence. The search warrant was 

### supported by sufficient probable cause even after excluding consideration oftheNo. 72302-2-1/2
aerial images. The record confirms that the State conducted an independent investigation after receiving the tip. We affirm. FACTS The Speed Family Trust owns approximately 11 acres of land on Orcas Island inSan Juan County (County). Errol Speed is a trustee ofthe Speed Family Trust. In May 2010, Speed submitted a request for code enforcementto the San Juan County Department of Community Development and Planning (CD&P). Speed's request alleged that a business, owned by Steven Pearson, engaged in 

### multiple code violations and failed to obtain necessary permits. Those allegations led to an investigation and an administrative hearing examiner ruling against
Pearson. 

### On December 16, 2011, Deputy Building Official (DBO) for CD&P, John Genuich, filed an activityreportafterhaving a conversationwithPearson. Pearson told DBO GenuichthatSpeed's property had, "potentiallyengaged in" construction 

### of a single family residence (SFR) without obtaining a required building permit. Based on this information, DBO Genuich attempted to directly observe Speed's 

### property, but was unable to do so from a public way. But, he noted that he discovered an overhead viewofwhatappeared to be an SFRon Speed's property. 

### The activityreportalso noted thatDBOGenuichwas unableto find a permit issued for the construction ofan SFR on Speed's property. The activity reportconcluded 

### by stating that the matterwas going to be referred to a code enforcement officer (CEO).No. 72302-2-1/3
The case was referred to Christopher Laws, a CEO for CD&P. After receiving the complaintabout Speed's property, CEO Laws began an investigation into the property. He reviewed digital satellite images of Speed's property on the 

### internet from Google Earth1 and digital aerial images from the County's Polaris2 database. The images showed a large structure with three skylights inthe roof, a chimney, a small porch, and a deck. And, CEO Laws reviewed County records, which illustrated that Speed had provided the tax assessorwith information about
a large structure on the property for taxing purposes. The tax assessor's records showed a structure on the property with a "foot print" of approximately 1,332.5 

### squarefeet. Speed informed thetax assessorthatthe structure had a wood stove, 

### but not electricity, plumbing, or a septic system. Based on County records, CEO Laws also determined that no permits had been issued for the property. 

### On December21, 2011, the CountysentSpeed a letterof inquiryrequesting that he discuss potential code violations with CD&P. On January 5, 2012, the CD&P issued a notice of violation and stop work order, because Speed did not 

### respond. It stated that Speed violated the San Juan County Code (SJCC) by initiatingthe construction of an SFR prior to the issuance of a building permit and byoccupying a structure before approval bythe building official. ItsaidthatSpeed
1Google Earth is a publicly-available interactive mapping program used to display satellite images ofEarth's surface, allowing users to view the latitude and longitude of physical structures. In re Application of United States for an Order Authorizing Disclosure ofLocation Information ofa Specified Wireless Telephone, 849 F. Supp. 2d 526 (D. Md. 2011) 

### 2The Polaris images are contained in a pictorial database maintained by San Juan County. The images are relatively high definition aerial photographs representing snapshotviews ofthe past condition ofthe property.No. 72302-2-1/4

was to cease any work on the SFR, submit an after-the-fact building permitwithin 30 days, or applyfor a demolition permit. Itnoted that ifSpeed did not comply, he 

### faced possible civil and criminalpenalties.3 On January 6, 2012, Speed's attorney e-mailed CEO Laws. Speed's attorney stated that the alleged SFR is not a residence as indicated in the tax assessor's records. And, that ithas no septic, electric, plumbing, or wood stove. And, Speed's attorney maintained that the occupants ofthe property live in a 30- foot trailer—notthe alleged SFR. On February 2, 2012, Speed submitted to CD&P a document entitled "Statement of Exemption." The document stated that the alleged SFR was an 

### accessory structure—an exempt single story structure to be used for agricultural 

### purposes that is less than 1,000 square feet in area—in compliance with SJCC 15.04.500. CD&Prejectedthedocument, becauseitwas not onthe required form, did not contain required information, and did not include the required fee.

3 SJCC requires that any owner who intends to construct or change the occupancy of a building or structure shall first apply to the building official and obtain the required permit. SJCC 15.04.540; International Residential Code (I.R.C.) R105.1 (2003). The SJCC adopts, among others codes the International Residential Code. SJCC 15.04.050. No building or structure shall be used or 

### occupied until the building official has issued a certificate of occupancy. I.R.C. R110.1 (2003). It is unlawful for any person to erect or construct any building in conflict with or in violation of any provisions in the code. I.R.C. R113.1 (2003). Any structureover200 squarefeetmusteitherbe (a) permitted or (b) ifunder 1,000 feet and not used for human habitation, have an owner/builderexemption. SJCC 15.04.500;.570;.050(B); I.R.C. R105.2 (2003). The SJCC also requires 

### mechanical permits and inspections for installed mechanical devices. SJCC 15.04.590(D)(6). Specifically, itnotes thatthe installation ofwood-burning stoves is subject to regulation. SJCC 15.04.560. And, itrequires that there be sewage disposal inplaces where people reside. SJCC 8.16.060; .330.No. 72302-2-1/5 On April 3, 2012, the County filed a civil complaint against Speed in San Juan County Superior Court to enforce compliance with County codes. Speed proposed a settlement agreement. Speed's proposal was unacceptable to the County. Months later, on October 16, 2012, the State requested a warrant to search Speed's property for building and land use violations. The application for the search warrant was based on CEO Laws's declaration. CEO Laws's declaration outlined the information he obtained during his investigation, and he attached an aerial Google Earth image and three Polaris images. Ajudge issued the warrant. Officials inspected Speed's property pursuant to the warrant. They took multiple photographs and measurements. Inside the alleged SFR, the officials found a bed, a kitchen, a stove, a table, a couch, a chair, and books. On November 21, 2012, the State filed a criminal complaint against Speed 

### in San Juan County District Court. It charged Speed with unlawfully using or 

### maintaining an unpermitted structure, unlawfully occupying a building, and failing to have approved sewage disposal—misdemeanors. And, itcharged Speed with 

### making false ormisleading statements to a public servant—a gross misdemeanor. On January 7, 2013, Speed moved to dismiss the State's complaint or, in the alternative, to suppress all information regarding Speed's property that was obtained through Pearson's statements orthrough aerial surveillance. He argued Pearson's statements did not amount to sufficient probable cause and that the aerial surveillance violated his rights under article I, section 7 ofthe Washington Constitution.No. 72302-2-1/6 

### Ultimately, on September6, 2013, the district courtdenied Speed's motion to dismiss or suppress. A jury found Speed guilty of unlawful use/maintenance of
an unpermitted structure pursuant and failure to have appropriate sewage 

### disposal. Speed appealed to the San Juan County Superior Court. The superior court affirmed the district court in all respects. On August 8, 2014, Speed moved 

### fordiscretionary review in this court under RAP 2.3(d), whichwas granted in part. DISCUSSION 

### Speed argues the district court erred when itdenied his motion to dismiss
or suppress evidence.4 The superior court affirmed the district court's decision. Appellate review of a superiorcourtdecision reviewing a decision of a district court 

### is governed byRALJ 9.1. Statev. Brokman, 84 Wn. App. 848, 850, 930 P.2d 354 (1997). Anappellate court reviews the decision of the district court to determine whetherthat court has committed any errors of law. Id. I. Aerial Images 

### Speed asserts that the State's use of the aerial images constituted a warrantless searchthatwas an unreasonable intrusion into his privateaffairs under 

### article I, section 7 of the Washington Constitution. If the police or another 

### 4 Speed makes several arguments in a statement of additional grounds 

### (SAG). RAP 10.10 states that a SAG is permitted, "[i]n a criminal case on direct appeal." RAP 2.1 defines "appeal" as, "[rjeviewas a matterofright." Speed's case is before this court on discretionary review—not review as a matter of right. Therefore, RAP 10.10 does not provide Speed a right to file a SAG. But, Speed 

### received correspondence from this court's clerk's office informing him of his right to file a SAG pursuantto RAP 10.10. We elect to consider Speed's SAG to the extent itraises arguments about the issues we will reach in deciding this case. See RAP 12.1; State v. Knighten, 109 Wn.2d 896, 908, 748 P.2d 1118 (1988) 

### (stating that pursuant to RAP 12.1, an appellate court may request and consider additional briefing).No. 72302-2-1/7 governmental agent conducts a search, article I, section 7 is implicated and the search mustbeconducted pursuantto a warrantor fall withinoneoftherecognized exemptions to the warrant requirement. State v. Young, 123 Wn.2d 173,181, 867 P.2d 593 (1994). When an unconstitutional search or seizure occurs, all subsequently uncovered evidence becomes fruit of the poisonous tree and must be suppressed. State v. Ladson, 138Wn.2d 343, 359, 979 P.2d 833 (1999). But, evidence tainted by unlawful government action is not subject to suppression provided that it is ultimately obtained pursuant to a valid warrant or other lawful
means independentofthe unlawful action. State v. Gaines, 154 Wn.2d 711,718, 116 P.3d 993 (2005). The most interesting issue here is whether the use of the aerial images obtained by the government without a warrant, to determine whether violations of 

### County code were being committed, constituted an unconstitutional search ofthe property under article I, section 7 ofthe Washington Constitution. However, we need not reach this constitutional issue. Viewing the evidence supporting the application for the search warrant, excluding from consideration all evidence from any aerial images whether or not constitutionally obtained, is sufficientto resolve the case on othergrounds. The State's searchwarrantapplication—CEO Laws's declaration—included information obtained from the aerial images and the aerial images were attached to the application. When information contained in an affidavit of probable cause for a search warrant is obtained by an unconstitutional search, that information may not be used to support a warrant. State v. Eisfeldt, 163 Wn.2d 628, 640, 185No. 72302-2-1/8
P.3d 580 (2008). But, the inclusion of illegally obtained information in a warrant affidavit does not render the warrant per se invalid, provided that the affidavit contains facts independent of the illegally obtained information sufficient to give rise to probable cause. Gaines, 154 Wn.2d at 718. The court must view the warrant without the illegally gathered information to determine ifthe remaining 

### facts present probable cause to supportthe search warrant. Eisfeldt, 163 Wn.2d at 640. Ifthe warrant, viewed in this light, fails for lack of probable cause, the 

### evidence seized pursuant to that warrant must also be excluded. Id. But, ifthe affidavitestablishes probable cause independentof illegallyobtained information, it is still valid. State v. Coates, 107 Wn.2d 882, 887-88, 735 P.2d 64 (1987). 

### Although we defer to the magistrate's determination, the trial court's assessment ofprobable cause is a legal conclusion this court reviews de novo. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008). Probable cause is established ifthe affidavit sets forth sufficientfacts to lead a reasonable person to 

### concludethere is a probabilitythatthe defendantis involved in criminal activity and that evidence ofthe criminal activity can be found in the place to be searched. State v. Maddox, 152 Wn.2d 499, 509, 98 P.3d 1199 (2004). In determining 

### probable cause, the magistrate makes a practical, commonsense decision, taking into account all the circumstances set forth in the affidavit and drawing


### commonsense inferences, jd. at 509-10. It is only the probability of criminal 

### activity, not a prima facie showing of itthatgoverns probable cause. Id. at 505. Therefore, here, in order for the warrant to be valid without the references 

### to the aerial images, the State's application for a search warrant needed to

8No. 72302-2-1/9
establish a reasonable probability that Speed had violated a state orlocal law and that evidence of it could be found on his property. After excising statements referencing the aerial images from Laws's declaration, the following salient facts remain:

• CEO Laws received an activity report that an SFR had been constructed on Speed's property without the benefit ofan approved building permit. • Building permits are required for the construction of all SFRs inthe County. It is a criminal offense to have unpermitted structures on a tax parcel.
• Speed previously provided thetax assessorwith information abouta structure on his property for taxing purposes. He claimed the structure had no electricity, no plumbing, no septic, but did have a wood stove. • A search ofthe County's permit database indicated that no building permits, plumbing permits, or mechanical permits had been issued for the property. • CEO Laws received an e-mail from Speed's attorney stating thatthe alleged SFR is not a residence and has no septic, electric, plumbing, ora wood stove. And, itsaid thatthe residents live in a traileron the property. 

### • The attorney's statementaboutthewood stovewas directly contrary to the information provided by Speed to the County assessor. • A mechanical permit is required for a wood stove. • Any structure, whether it be an SFR or an agricultural building, which exceeds 1,000 square feet requires an approved building permit from the County to construct. A structure that is less than 1,000 square feet may be constructed with an owner/builder exemptionthatis reviewed and approved by CD&P. Any residence, regardless of size, requires an approved building permit. Any structures less than 200 square feet which meets the exemption 

### requirements listed in the code do not require a permit.5 5In a SAG, Speed asserts that nowhere inthe record isthere evidencethat the statementofexemption Speedfiledwas reviewed andfound noncompliantwith state or county law. The district court made a finding thatthe County rejected the document. Therefore, Speed is essentially challenging this finding of fact. In reviewing a trial court's decision on a motion to suppress, this court reviews 

### challenged findings of fact for substantial evidence. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). CEO Laws submitted a declaration in May2013. Itstated the County reviewed Speed's StatementofExemption and did not acceptNo. 72302-2-1/10

• The tax assessor's records show a structure on Speed's property with an overall footprint ofapproximately 1,332.5 squarefeet.


### • According to a record of an earlier superiorcourt action, Speed and his partnerpreviously built a residence on the propertywhere they were living and applied for a permitfor an accessory agricultural 

### building for the structure, ratherthan a permit for a residence. Both Speed and his partneradmitted they did so to avoid the application of certain building codes.


### • Trailer installation and permitting is regulated by both state and local law.6 CEO Laws was unable to locate any permits forthe trailer Speed's attorney mentioned. 

### • Inorderto verifywhat permits were required for the parcel to bring it into conformance with code requirements, CEO Laws requested 

### information relating to the location, size, and purpose of any and all structures over200 square feet insize located on the property. Based on these facts—even without reference to information gleaned from 

### the aerial images—there was probable cause to believe that at least one 

### unpermitted and nonexempt structure was located on Speed's propertywithout a permit in violation ofthe law. 

### As to the structure, regardless ofwhetheritwas a residence, ifthe building 

### was over 1,000 square feet, it had been constructed without a building permitin violation ofthe law. SJCC 15.04.050(B); .500;.570; I.R.C. R105.2. And, if itwas 

### it because itwas neither on the proper form nor accompanied by any of the 

### required supporting documents necessary for CD&P staff to review it for compliance with county land use and codes. We conclude that this constitutes substantial evidence to supportthe district court's finding. 

### 6In a SAG, Speed claims thatthere was no evidence that he was living in 

### his trailer. But, Speed's attorney told authorities thatSpeedwas living inthetrailer. CEO Laws's declaration states that trailer installation and permitting is regulated 

### by bothstateand local lawand that he was unable tofind any permits forthetrailer. Speed does not argue that the lawdoes not require his trailer to be permitted. Rather, he asserts that CEO Laws did not provide the court with legal authority 

### that his trailer required a permit. But, Speed cites to no authority to support his assertion that Laws's declaration was required to provide specific legal authority. 

### Even ifthe law did not require the trailer to be permitted, and even ifthe magistrate 

### needed specific legal authority to issue the search warrant as to the trailer, there was still probable cause to search the trailer to determine if Speed was actually living there or in the unpermitted, alleged SFR.

10No. 72302-2-1/11

over 200 square feet and less than 1,000 square feet, it had been constructed 

### without first having obtained an approved exemption.7 SJCC 15.04.050(B); .500; .570; I.R.C. R105.2 (2003). Although CEO Laws's declaration referred to the "foot print" ofthe structure ratherthan the total square footage ofthe structure, itwas a reasonable and common sense inferencethata structurewith a footprintof 1,332.5 

### square feet would be 1,000 squarefeet or at least 200 square feet.8 It is only the probability of criminal activity, not a prima facie showing of itthatgoverns probable

cause. Maddox, 152 Wn.2d at 505. Moreover, there was probable cause of at least one additional code violation. The tax assessor records indicated there was a wood stove on the 

### property. A mechanical permit is required for a wood stove, and there was no 

### mechanical permitissuedfor the property.9 SJCC 15.04.560, .590(D)(6).

7CEO Laws's declaration stated thatthere was no record ofissued building 

### permits, plumbing permits, ormechanical permitsforthe property. This statement combined with the fact that CEO Laws specifically requested information about 

### any structure on the property over200 square feet in size, implies thatthere was no exemption issued for the property either. 

### 8Speed contends that CEO Laws's reference to the 1,332.5 "footprint" of the structure in his declaration was unhelpful, because the size of an accessory 

### structure is measured by square footage—not its footprint. He noted that the assessor's office reported the structure as being only 864 square feet. But, even ifCEO Laws's declaration had included the fact thatthe structure was 864 square 

### feet, the structure—largerthan 200 square feet—would have required a permit or acceptance of a statementofexemption. SJCC 15.04.050(B); .500; .570. 9Speed asserts that the wood stove had been removed from the property before Speed's attorney informed the County that the property did not have one. He also asserts thathaving evidencethat a wood stove exists is not evidencethat 

### it was installed and functioning. But, a possible innocent explanation for the discrepancy between what Speed reported and what his attorney reported about the existence ofthe wood stove does notnecessarily negate probable cause. See State v. Graham, 130 Wn.2d 711, 725, 927 P.2d 227 (1996). Nor does the fact thatthe wood stove may not have been functional.

11No. 72302-2-1/12
As adeptly stated by the SuperiorCourt: [Speed's] arguments arefocused entirelyon whetherthe information was sufficientto establish probable cause to believe the structure on 

### his property was being used as a residence. But Mr. Laws'[s] Declaration provided information that indicated probable County Code violations otherthanjustthe occupation ofthe large structure as a residence.
. . . Thus, whether or not the information was sufficient to establish probable cause to believe [Speed] was occupying the large structure as a residence, which this Court agrees that there was, there was clearly sufficient information to establish probable cause that other permitting violations were occurring, violations which are declared to be misdemeanors under SJCC 15.04.090(A). We conclude that CEO Laws's declaration, even after excising the 

### references to the aerial images, set forth sufficient probable cause to lead a reasonable person to conclude there was evidence of criminal activity on Speed's 

### property.10 Even ifthe use ofthe aerial images was unconstitutional, the district courtdid not errwhen itdeclined to suppressthe evidence obtained viathe search
warrant on this basis.

II. Informant But, Speed also argues thatthe warrantwas invalid, because CEO Laws's declaration failed to provide any details as to the credibility and veracity of Pearson—an informant. CEO Laws's declaration noted that, "On or about December 16, 2011,1 received an activity reportthata single-family residence had been constructed
. . . without the benefit of an approved building permit." The

10 Because we conclude there was sufficient probable cause even without 

### the aerial images, we do not address Speed's argumentthattherewas insufficient 

### probable cause, because the aerial images were stale. Similarly, we need not considerSpeed's arguments related to the flyover of his property.
12No. 72302-2-1/13 activity reportwas completed by DBO Genuich and the complaintto DBO Genuich, although not explicitly mentioned in the activity report, evidently came from Pearson. Speed argues that an informant's tip must comply with the Aguilar

### Spinelli11 testconcerning probable causefor a search warrant. Underthe Aguilar-Spinelli test, to establish probable cause for issuance of
a search warrantbased upon an informant's tipdetailed inan affidavit, the affidavit must demonstrate the informant's (1) basis of knowledge and (2) veracity. State
v. Vickers, 148Wn.2d 91, 111-12, 59 P.3d 58 (2002). Speed arguesthatthe State 

### may not avoid an inquiry into Pearson's knowledge, credibility, and veracity by simply not mentioning him orthe contentofwhat he reported inthe application for
a search warrant. Speed relies on State v. Lyons, 174 Wn.2d 354, 359, 275 P.3d 314 (2012) to support his assertion. 

### In Lyons, ajudge issued a search warrantforLyons's property based on an officer's affidavit, jd. at 357. The officer's statement noted that a "reliable and confidential source of information reported details ofthe criminal activity to him. Id. at 357-58. Lyons moved to suppress evidence seized from his property, 

### arguing that the affidavit for the search warrant failed to state timely probable
cause. Id. at 358. The trial court granted the motion. Id. In affirming, the Lyons court noted that even though the affidavit may be based on an unidentified informant's tip, the affidavit must contain some of the underlying circumstances

" Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 

### (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L Ed. 2d 723 (1964); State v. Jackson, 102 Wn.2d 432, 443, 688 P.2d 136 (1984) (rejecting Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) abrogation of Aguilar/Spinelli)..
13No. 72302-2-1/14


### that led the informant to believe that evidence could be found at the specified location. ]d_. at359. And, itnoted thatthe affidavitmustsetforth the circumstances 

### specificallyenoughthatthe magistratecan independentlyjudgethevalidity of both the affiant's and the informant's conclusions. ]d. But, Lyons is plainly distinguishable. In Lyons, probable cause for the search warrant was based solely on information from a confidential source, jd at 357. Here, the application for the search warrantwas not based solely—or really much at all—on information from an informant. And, even if the warrant was technically "based on" Pearson's statementthat led to the activity report, ifeither or both parts ofthe Aguilar-Spinelli test are deficient, probable cause may yet be 

### satisfiedbyindependentpolice investigationworkthatcorroboratestheinformant's 

### tip to such an extentthat itsupports the missing element. Vickers, 148 Wn.2d at 112; State v. Jackson, 102 Wn.2d 432, 438, 688 P.2d 136 (1984) (noting that if a 

### tipstanding aloneor partiallycorroborated, falls shortofprobable cause, itstill has
a place in law enforcement by prompting a police investigation or further investigatory work that establishes the requisite probable cause). Here, CEO Laws's declaration conveys that information from the activity report merely prompted his independent investigation into the property. And, that he later obtained additional information aboutSpeed's propertyfrom tax assessorrecords, the County's permit records, and Speed's attorney. Moreover, where an affidavitis sufficientto establish probablecause absent information provided by the informant, the court need not address a challenge to 

### the informant's reliability. See State v. Cord, 103 Wn.2d 361, 365, 693 P.2d 81

14No. 72302-2-1/15 (1985). Here, as was the case with the aerial images in Cord, there was still sufficient probable cause to support evidence of criminal wrongdoing even after 

### excising the one statement in CEO Laws's declaration aboutthe activityreport.12 We hold that the search warrantwas valid. The district court did not commit
an errorof law when itdenied Speed's motion to dismiss ormotion to suppressthe 

### evidencefound on his property during the execution of the searchwarrant.13
We affirm.

WE CONCUR: 

# &4wf\ y b^-v

12 Ina SAG, Speed makes additional arguments challenging the veracity of the informant. But, Speed largely repeats the argument already made by his attorney and addsfacts notinthe record. As such, this SAG is withoutmerit. See State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008) (noting that arguments based on facts not inthe record are not properlyraisedthrough a SAG). 

### 13 To the extent Commissioner Neel's ruling granting Speed's motion for discretionary review authorized this court to consider any additional issues not discussed inthis opinion, we decline to reach those issues.
15