IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 49572-4-II

Respondent,

v.

JESSE M. IRWIN, UNPUBLISHED OPINION

Appellant.

SUTTON, J. — Irwin appeals his conviction for possession of a controlled substance—

methamphetamine. Irwin argues that the trial court erred by denying his motion to suppress 

methamphetamine found in his backpack during a search of his vehicle because the officer’s search 

warrant was not supported by probable cause. Irwin also argues that the search warrant was 

overbroad. We hold that the trial court did not err by concluding that the search warrant was 

supported by probable cause. We also hold that the overbroad portion of the warrant can be 

severed and redacted from the valid portion of the warrant. Accordingly, we affirm. 

FACTS

The State charged Irwin with possession of a controlled substance with intent to deliver—

methamphetamine and possession of a controlled substance—methamphetamine. Irwin moved to 

suppress the methamphetamine found during the search of his vehicle because the search warrant 

was not supported by probable cause. 

Filed

Washington State

Court of Appeals

Division Two

July 3, 2018
No. 49572-4-II

2

The probable cause affidavit supporting the search warrant alleged the following, relevant 

facts:

 On July 14, 2016, at approximately 8 AM, Officer Fraser, of the Battle Ground 

Police Department, stopped Irwin for driving without a seat belt. Irwin had a 

female passenger in the van.

 Officer Fraser observed two BMX style bicycles, tools, stereo equipment, and 

various electronics in the van. Officer Fraser thought the bicycles looked like they 

would belong to people younger than the people Officer Fraser observed in the van. 

Officer Fraser also believed the items in the van were consistent with the types of 

items taken during vehicle prowls. 

 When Officer Fraser asked Irwin for identification, Irwin picked up a wallet and 

removed a license. Then he commented, “That’s not me.” Then Irwin provided 

Officer Fraser with his name and date of birth.

 Officer Fraser determined that Irwin’s driver’s license was suspended in the first 

degree and confirmed that there was a warrant for Irwin’s arrest for third degree 

theft. And Irwin had a prior conviction for criminal impersonation. 

 When Officer Fraser asked Irwin to step out of the van, he realized Irwin was 

completely naked. Irwin explained that he was running late for a court appearance. 

Officer Fraser allowed Irwin to get dressed and then placed him under arrest.

 Officer Fraser requested Irwin’s consent to search the van to confirm that the items 

in the vehicle were not stolen. Irwin consented to the search and told Officer Fraser 

all the items in the van were his. 

 Officer Fraser then contacted the passenger, identified as Shelby Cahill. Cahill had 

“very constricted pupils” and lacked her top teeth. Cahill had a prior conviction for 

possession of a controlled substance with the intent to deliver.

 Officer Fraser obtained Cahill’s consent to search her backpack. Officer Fraser 

found two glass pipes commonly used to smoke methamphetamine. One of the 

pipes had a large amount of white crystals, Officer Fraser suspected that it was 

methamphetamine. Officer Fraser also found a glass jar, about the size of his fist, 

which contained a white crystal substance that Officer Fraser recognized as 

methamphetamine. Officer Fraser placed Cahill under arrest.

 Officer Fraser began the search of the van and observed another back pack and a 

black suitcase. He also observed a bedspread covering something on the backseat 

and two men’s leather wallets on the center console. Then Irwin revoked his 

consent to search. 
No. 49572-4-II

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Clerk’s Papers (CP) at 17-20. In his supporting affidavit of probable cause for a search warrant, 

Officer Fraser stated, 

Based on the amount of items in the van consistent with auto prowls and/or 

thefts (electronics and tools), the suspicious wallet with someone else’s 

identification, the unknown contents of the suitcase and the backpacks, the 

substantial amount of drugs found in [Cahill’s] possession and the criminal 

histories of both individuals involved, I suspected that the van likely contained 

additional drugs and/or paraphernalia and stolen items.

CP at 20. The warrant authorized the officer to search for the following property:

1. Controlled substances to include, but not limited to methamphetamine, heroin, 

cocaine or prescription medications;

2. Drug paraphernalia to include, but not limited to smoking pipes, wrappers, 

plastic baggies, electronic or digital scales, or any other device which may be used 

for the consumption or ingestion of drugs;

3. Any items to show domain and control of the vehicle to include but not limited 

to identification, mail, credit or bank cards, receipts of purchases with the 

defendant(s)’s names, paycheck stubs, or other papers including the defendant(s)’s 

name(s);

4. Access to any locked storage container which can be used for securing or 

concealing evidence sought;

5. And any other items of evidence specifically relating to the crime(s) of Theft II 

– RCW 9A.56.040, Possession of Stolen Property – RCW 9A.56.140, Identity 

Theft – RCW 9.35.020, Possession of a Controlled Substance – RCW 69.50.401, 

and Possession of Drug Paraphernalia – RCW 69.50.412. 

CP at 17.

At the suppression hearing, Irwin argued that “this is a clear-cut case of lack [of] probable 

cause” because there was no particularized evidence based on which the officer could suspect that 

the items in the vehicle were stolen or that Irwin had drugs. I Verbatim Report of Proceedings 

(VRP) at 17. The trial court disagreed and concluded that there was probable cause to support the 

search warrant. The trial court denied the motion to suppress. 
No. 49572-4-II

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At Irwin’s jury trial, Officer Fraser testified that he searched Irwin’s van and found 

methamphetamine and drug paraphernalia in a backpack in the van. Officer Fraser also found mail 

and other documents with Irwin’s name on them in the backpack. 

The State elected to rely exclusively on the methamphetamine found in Irwin’s backpack 

to support the charge for possession of a controlled substance—methamphetamine. The jury found 

Irwin guilty of possession of a controlled substance—methamphetamine. The trial court imposed 

a standard range sentence. Irwin appeals. 

ANALYSIS

I. PROBABLE CAUSE

We review de novo a trial court’s conclusions of law determining probable cause 

supporting a warrant at a suppression hearing. State v. Dunn, 186 Wn. App. 889, 896, 348 P.3d 

791, review denied, 184 Wn.2d 1004 (2015). Our review is limited to the four corners of the 

document supporting probable cause. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008). 

Under a de novo review, we determine “whether the qualifying information as a whole amounts 

to probable cause.” Dunn, 186 Wn. App. at 896. Facts that, standing alone, do not support 

probable cause may support probable cause when viewed together with other facts. State v. Cole, 

128 Wn.2d 262, 286, 906 P.2d 925 (1995). We review the supporting affidavit “‘in a 

commonsense manner, rather than hypertechnically . . . .’” State v. Lyons, 174 Wn.2d 354, 360, 

275 P.3d 314 (2012) (quoting State v. Jackson, 150 Wn.2d 251, 265, 76 P.3d 217 (2003)). 

A search warrant may only issue upon a determination of probable cause “based upon facts 

and circumstances sufficient to establish a reasonable inference that criminal activity is occurring 

or that contraband exists at a certain location.” Cole, 128 Wn.2d at 286. Probable cause exists as 
No. 49572-4-II

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a matter of law if the supporting affidavit contains sufficient facts and circumstances to establish 

a reasonable inference that the defendant is probably engaged in illegal activity, and that evidence 

of that illegal activity is at the location to be searched. State v. Thein, 138 Wn.2d 133, 140, 977 

P.2d 582 (1999). Therefore, “‘probable cause requires a nexus between criminal activity and the 

item to be seized, and also a nexus between the item to be seized and the place to be searched.’” 

Thein, 138 Wn.2d at 140 (quoting State v. Goble, 88 Wn. App. 503, 509, 945 P.2d 263 (1997)). 

The nexus between the evidence to be seized and the place to be searched must be established by 

specific facts, not by an officer’s generalizations or conclusory predictions. Thein, 138 Wn.2d

at 145.

First, Irwin relies on Thein to argue that Officer Fraser’s supporting affidavit did not 

support a determination of probable cause because Officer Fraser’s affidavit was based primarily 

on generalizations about criminal behavior to establish a nexus between the items to be searched 

for and the place to be searched. In Thein, the officers obtained information supporting the 

conclusion that Thein was selling or distributing drugs. 138 Wn.2d at 139. Based on the officer’s 

assertion that it is common practice for drug traffickers to keep drug inventory in their homes, the 

officer obtained a search warrant for Thein’s home. Thein, 138 Wn.2d at 138-39. Our Supreme 

Court held that the officer’s generalizations about drug traffickers’ conduct were not sufficient to 

establish a nexus between the items being searched for and the place to be searched. Thein, 138 

Wn.2d at 148-49. 

However, unlike the officer’s generalizations in Thein, here the officer included specific 

facts in the supporting affidavit that established a nexus between the items to be searched for (the 

evidence of drugs and theft) and the place to be searched (the van). Officer Fraser directly 
No. 49572-4-II

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observed property in the van that he knew to be consistent with car prowls in the van that they 

were seeking to search; therefore, there is a direct nexus between the possibly stolen property and 

the van. Officer Fraser also observed at least two wallets in the van, one of which Irwin admitted 

did not belong to him; therefore, there is a direct nexus between the possible evidence of identity 

theft (the wallets) and the place to be searched (the van). And Cahill was actually riding as a 

passenger in the van while she had drug paraphernalia and a large amount of methamphetamine in 

her possession. Therefore, there is a nexus between the possible evidence of drug crimes and the 

van as well. Here, there are specific facts besides Officer Fraser’s generalizations which create a 

nexus between the items Officer Fraser intended to search for and the place to be searched, the 

van. Accordingly, Irwin’s argument that there was no nexus to establish probable cause fails. 

Second, Irwin argues that Cahill’s possession of a large quantity of methamphetamine 

cannot support a determination of probable cause for searching his van. Irwin relies on State v. 

Parker, 139 Wn.2d 486, 987 P.2d 73 (1999) to argue that Cahill’s possession of drug paraphernalia 

and a large quantity of methamphetamine cannot support a determination of probable cause to 

search the van Irwin was driving or Irwin’s backpack. However, Irwin’s reliance on Parker is 

misplaced. 

Parker held that the search incident to arrest exception to the warrant requirement did not 

extend to include the personal belongings of passengers in a car when the driver is arrested. 139 

Wn.2d at 502-03. Parker does not address probable cause; therefore, Parker cannot, and does not, 

limit what may be considered when making a probable cause determination. A probable cause 

determination is made considering all the facts and circumstances known to the officer at the time. 
No. 49572-4-II

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Cole, 128 Wn.2d at 286. Therefore, a passenger’s conduct, possessions, etc., may be considered 

as part of the facts and circumstances supporting a probable cause determination. 

Here, the facts and circumstances Officer Fraser included in his supporting affidavit 

support a probable cause determination. There was a reasonable inference that Irwin may have 

been involved in criminal activity because he had a prior conviction for criminal impersonation 

and Officer Fraser observed Irwin in possession of at least one wallet that admittedly was not his. 

And there was a reasonable inference that the items in the van may be stolen because they were 

the type of items consistent with car prowls and Irwin had a warrant for theft. Finally, there was 

a reasonable inference that drugs may be in the containers in the van because Cahill had been 

riding in the van and she had possession of drug paraphernalia and a large amount of 

methamphetamine. And Officer Fraser reasonably believed that there was a relationship between 

Irwin and Cahill because they were driving to court together in the van while Irwin was naked. As 

explained above, there was a nexus between the items to be searched for and the place to be 

searched, the van. Accordingly, Officer Fraser’s supporting affidavit was sufficient to support a 

probable cause determination.

Because Officer Fraser’s supporting affidavit was sufficient to support a probable cause 

determination, the trial court did not err by denying Irwin’s motion to suppress the 

methamphetamine found in his backpack in the van. 

II. OVERBREADTH

Irwin also argues that the trial court erred by denying the motion to suppress the evidence 

because the warrant was overbroad. Specifically, Irwin argues that “[t]he authority to search for 

‘any other items of evidence’ related to theft crimes is overbroad.” Br. of Appellant at 26. 
No. 49572-4-II

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Although we agree that the challenged portion of the warrant was overbroad, the invalid portion 

of the warrant can be effectively severed and redacted from the remaining valid portions of the 

warrant. And the valid portions of the warrant authorized the search for the methamphetamine 

that supported Irwin’s conviction. 

A search warrant must describe the items to be seized with particularity to prevent general 

searches, seizure of objects on the mistaken assumption that they fall within the warrant’s 

authorization, and issuance of a warrant on loose, vague, or doubtful factual bases. State v. Thein, 

91 Wn. at App. 476, 482-83, 957 P.2d 1261 (1998). “Where there is a logical, reasonable basis 

for redacting an overbroad portion of the warrant, it may be severed from the remaining valid

portion and evidence seized based on the latter is not subject to the exclusionary rule.” Thein, 91 

Wn. App. at 483.

For severability to apply, five requirements must be met: (1) the warrant must lawfully 

have authorized entry into the premises; (2) the warrant must include one or more particularly 

described items for which there is probable cause; (3) the part of the warrant that includes 

particularly described items supported by probable cause must be significant compared to the 

warrant as a whole; (4) the searching officers must have found and seized the disputed items while 

executing the valid part of the warrant; and (5) the officers must not have conducted a general 

search in disregard of the warrant’s scope. State v. Maddox, 116 Wn. App. 796, 807-809, 67 P.3d 

1135 (2003).
No. 49572-4-II

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Here, the “any other items of evidence” related to the theft crimes provision is overbroad 

because it does not describe any particular items to be seized or searched for, nor does it describe 

any particular means of committing the theft crimes that could be used or reasonably used to 

narrow the scope of the search or the items to be seized. 

But even if the phrase, “any other items of evidence” related to the theft crimes is 

overbroad, it can be severed from the remainder of the warrant which addresses specific evidence 

related to identified drug crimes. As redacted, the warrant is still meaningful and provides 

authorization for the police to conduct the search conducted in this case. See Thein, 91 Wn. App. 

at 483-84.

Here, the five requirements for severability are met. First, the warrant lawfully authorized 

entry into the van. Second, the probable cause to search for drugs supported the particular portions 

of the warrant authorizing the search for evidence related to the possession of 

methamphetamine. Third, the valid, unchallenged portion of the warrant constitutes a significant 

portion of the warrant compared to the warrant as a whole. Fourth, the officers seized the 

methamphetamine while executing the valid portions of the warrant. And fifth, the officers’ search 

was not overbroad under the valid portions of the warrant. 

The challenged warrant provision was overbroad, but the overbroad portion can be severed 

and redacted from the warrant leaving a valid warrant that authorized the search conducted and the 

seizure of the methamphetamine found in Irwin’s backpack. 
No. 49572-4-II

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We affirm.

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, 

it is so ordered.

SUTTON, J.

We concur:

WORSWICK, P.J.

BJORGEN, J.