FILED 


APRIL 9, 2015 


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. 32029-4-III 

) (consolidated with 

Appellant, ) No. 32030-8-III) 

) 

v. ) 

) 

CASEY J. LYNN DUNN, ) 

) 

Respondent. ) PUBLISHED OPINION 

STATE OF WASHINGTON, ) 

) 

Appellant, ) 

) 

v. 	 ) 

) 

STEVEN RA Y LONG, 	 ) 

) 

Respondent. ) 

LAWRENCE-BERREY, J. - Witnesses saw Steven Long driving a pickup truck on 

Hogeye Hollow Road in Columbia County. In the bed ofthe truck was an ATVI with 

camouflage packs. The next day, after the same truck was found abandoned, a property 

owner reported that truck, an A TV with camouflage packs, and several other large items 

ofpersonal property missing. Based on these facts, a judge issued a warrant to search for 

1 An ATV is a commonly used acronym for all terrain vehicle. 
No. 32029-4-111; No. 32030-8-111 

State v. Dunn; State v. Long 

the missing items at Mr. Long's home and adjacent buildings located on Hogeye Hollow 

Road. The search uncovered stolen property and controlled substances. Mr. Long and his 

roommate Casey Dunn were charged with various offenses. Both defendants moved to 

suppress the evidence gathered in the search. The trial court granted the motions, 

concluding that the affidavit in support ofthe warrant failed to establish a reasonable 

nexus between the missing items and Mr. Long's residence. The State moved for 

findings that the cases could not proceed based upon the suppression orders, and the court 

entered such findings. The State appealed, and we consolidated both cases. We conclude 

that there was a reasonable nexus between the missing items and Mr. Long's residence to 

support the warrant. We therefore vacate the suppression orders and the orders of 

dismissaL 

FACTS 

Undersheriff Lee Brown investigated the circumstances surrounding an abandoned 

vehicle found on Ring Canyon Road in Columbia County. After his investigation, he set 

forth the following facts in his application for a search warrant. 

On May 3, 2013, Undersheriff Brown was dispatched to investigate an abandoned 

vehicle in a ditch on Steve Shoun's property on Ring Canyon Road. While en route to the 

field, he called Mr. Shoun. Mr. Shoun said that he observed the same pickup truck on 

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No. 32029-4-III; No. 32030-8-II1 

State v. Dunn; State v. Long 

Hogeye Hollow Road the day prior when it almost ran his hired hand offthe road. Mr. 

Shoun said that he saw Steven Long driving the pickup truck and that Mr. Long waved to 

him. Mr. Shoun also said that there was an ATV with camouflage packs in the bed of the 

pickup truck. 

When Undersheriff Brown arrived at the scene, he observed a Dodge Ram pickup 

truck with a gray bed and a brown cab. The pickup truck was in the ditch with the rear of 

the truck sticking out. The ATV seen the previous day was no longer in the truck. 

UndersheriffBrown then called Mr. Shoun and asked him to come and verifY that the 

pickup truck was the same one that he observed Mr. Long driving the previous day. Mr. 

Shoun and his hired hand arrived at the scene and verified that they both observed Mr. 

Long driving the same pickup truck. Mr. Long was employed by Mr. Shoun in 2010, and 

the hired hand had known Mr. Long for six or seven years. The truck was registered to 

Zackary Zink ofDayton. The vehicle was towed and placed in a storage yard. 

At around 1:00 p.m., Undersheriff Brown met and spoke with Mr. Zink in the 

foyer ofthe sheriffs office. Mr. Zink said that the Dodge pickup truck in the storage 

yard belonged to him and had been at his property located at 628 Robinette Mountain 

Road. According to Mr. Zink, he last saw the pickup truck on Tuesday, April 30, 2013. 

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No. 32029-4-III; No. 32030-8-III 

State v. Dunn; State v. Long 

Mr. link told Undersheriff Brown that he was going to his property to see ifhis cabin had 

been entered. 

Around 3:30 p.m., Undersheriff Brown responded to a burglary at Mr. link's 

cabin on Robinette Mountain Road. When Undersheriff Brown arrived, Mr. link said 

that the back door was kicked in and the outbuildings had been entered. Mr. link also 

reported a shoe print on the door. Undersheriff Brown observed that the door was kicked 

m. He also dusted for latent prints, but found none. 

Mr. link reported that property was missing from the cabin, including both his 

ATVs, his generators, and a rifle. Undersheriff Brown was advised that one of the ATVs 

had tannish colored camouflage packs on the back of it, which matched the description of 

the ATV seen by Mr. Shoun in the back of the pickup truck. Mr. link provided a list of 

missing property with serial numbers or other identitying characteristics. 

In the affidavit, Undersheriff Brown listed the missing property reported by Mr. 

link. The property list included two A TV s, three generators, one rifle, two chainsaws, 

one box of movies, three pairs of binoculars, a tree planter, an alcoholic drink dispenser, 

and an air compressor. 

Also in the affidavit, Undersheriff Brown listed the premises to be searched as a 

single family manufactured home, garage, and wooden bam at 447 Hogeye Hollow Road 

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No. 32029-4-111; No. 32030-8-111 

State v. Dunn; State v. Long 

in Columbia County. He described the buildings as approximately .1 mile from the 

intersection of Lower Hogeye Road and Hogeye Hollow Road. He described the 

premises as the residence of Steven Long. 

Based on the above facts, a judge granted the search warrant. During a search of 

Mr. Long's home, officers found several items that Mr. Zink reported missing. Officers 

also found methamphetamine. Mr. Long was charged with second degree burglary, two 

counts of second degree theft, two counts ofthird degree malicious mischief, one count of 

residential burglary, three counts of second degree possession of a stolen vehicle, three 

counts of possession of a stolen vehicle, two counts ofpossession of stolen property, theft 

of a firearm, possession of methamphetamine, and manufacture of marijuana. Ms. Dunn, 

who lived at the home with Mr. Long, was charged with possession of methamphetamine, 

manufacture of marijuana, and second degree possession ofstolen property. 

Both Mr. Long and Ms. Dunn moved to suppress the evidence found in the search. 

The defendants argued that the warrant was not supported by probable cause because the 

affidavit failed to establish a reasonable nexus between the criminal activity and the place 

to be searched. 

The trial court granted the defendants' motions. The court concluded that the 

search warrant did not set forth sufficient facts to support a reasonable nexus between Mr. 

5 

No. 32029-4-III; No. 32030-8-III 

State v. Dunn; State v. Long 

Long's residence and the items sought in the search warrant; and, without a reasonable 

nexus, probable cause did not exist. The court therefore concluded that the warrant was 

not valid and suppressed all evidence gathered as a result of the warrant. The court 

entered findings, at the State's request, that the cases could not proceed without the 

evidence, and dismissed the cases without prejudice. The State appeals, contending that 

the trial court erred in suppressing the evidence, and requests vacation ofthe orders of 

dismissal. 

ANALYSIS 

The sole issue presented is whether there was a reasonable nexus between Mr. 

Long's home, garage, and bam and the items sought to be located so to support the search 

warrant. 

A search warrant may only be issued upon a determination of probable cause. 

State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). Probable cause exists as a 

matter of law if the affidavit supporting the search warrant contains sufficient facts and 

circumstances to establish a reasonable inference that the defendant participated in 

criminal activity and that evidence ofthe crime is at a certain location. State v. Thein, 

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

6 

No. 32029-4-III; No. 32030-8-II1 

State v. Dunn; State v. Long 

" , [P]robable 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.'" Id. 

(quoting State v. Goble, 88 Wn. App. 503, 509,945 P.2d 263 (1997». A nexus must be 

established by specific facts. Thein, 138 Wn.2d at 145. "Absent a sufficient basis in fact 

from which to conclude evidence of illegal activity will likely be found at the place to be 

searched, a reasonable nexus is not established as a matter oflaw." Id. at 147. 

Generally, we review the validity of a search warrant for an abuse of discretion, 

giving great deference to the issuing judge. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 

658 (2008). However, when a trial court assesses a search warrant affidavit for probable 

cause at a suppression hearing, we review the trial court's conclusion on suppression de 

novo. Id. 

Using de novo review, we determine whether the qualifying information as a 

whole amounts to probable cause. State v. Emery, 161 Wn. App. 172,202,253 P.3d 413 

(2011) (quoting In re Det. ofPetersen, 145 Wn.2d 789, 800, 42 P.3d 952 (2002», aff'd, 

174 Wn.2d 741, 278 P.3d 653 (2012). We consider only the information that was 

available to the issuing judge. State v. Olson, 73 Wn. App. 348, 354, 869 P .2d 110 

(1994). '" It is only the probability of criminal activity, not a prima facie showing of it, 

that governs probable cause. The [issuing judge] is entitled to make reasonable 

7 

No. 32029-4-III; No. 32030-8-III 

State v. Dunn; State v. Long 

inferences from the facts and circumstances set out in the affidavit.'" Emery, 161 Wn. 

App. at 202 (alteration in original) (quoting State v. Maddox, 152 Wn.2d 499, 505,98 

PJd 1199 (2004)). 

The existence ofprobable cause is to be evaluated on a case-by-case basis. Thein, 

138 Wn.2d at 149. Facts that would not support probable cause when standing alone can 

support probable cause when viewed together with other facts. State v. Garcia, 63 Wn. 

App. 868, 875, 824 P.2d 1220 (1992). The application for a search warrant must be 

judged in the light of common sense, resolving all doubts in favor of the warrant. State v. 

Partin, 88 Wn.2d 899, 904, 567 P.2d 1136 (1977). 

Despite the deference given to the issuing judge, our precedent requires that 

probable cause be based on more than conclusory predictions. Thein, 138 Wn.2d at 147. 

Blanket inferences and generalities cannot be a substitute for the required showing of 

"reasonably specific 'underlying circumstances' that establish evidence of illegal activity 

will likely be found in the place to be searched in any particular case." Thein, 138 Wn.2d 

at 147-48. Probable cause to believe a person has committed a crime does not necessarily 

give rise to probable cause to search that person's home. /d. at 148 (quoting State v. 

Dalton, 73 Wn. App. 132, 140,868 P.2d 873 (1994)). 

8 

No. 32029~4~III; No. 32030~8~III 

State v. Dunn; State v. Long 

Nonetheless, it may be proper to infer that stolen property is at a perpetrator's 

residence, especially ifthe property is bulky, and ifthe perpetrator had an opportunity to 

return home before his apprehension by police. WAYNE R. LAFAVE, SEARCH AND 

SEIZURE § 3.7(d), at 381~84 (3d ed. 1996) (cited in State v. McReynolds, 104 Wn. App. 

560,570, 17 P.3d 608 (2000)). "Judges looking for probable cause in an affidavit may 

draw reasonable inferences about where evidence is likely to be kept, including nearby 

land and buildings under the defendant's control." State v. Gebaroff, 87 Wn. App. 11, 16, 

939 P.2d 706 (1997). 

In Thein, police officers obtained a search warrant for the defendant's residence 

based on their generalized conclusion that drug dealers commonly keep evidence of their 

illegal drug dealings in their homes. Thein, 138 Wn.2d at 138~40. The Supreme Court 

held that generalized statements in affidavits supporting a search warrant are insufficient, 

standing alone, to establish the probable cause needed to search a suspected drug dealer's 

residence. Id. at 148. "Although common sense and experience infonn the inferences 

reasonably to be drawn from the facts, broad generalizations do not alone establish 

probable cause." Id. at 148~49. 

In McReynolds, our court addressed the boundaries of Thein. We recognized that 

inferences considered improper for drug crimes may be appropriate fo~ crimes oftheft, 

9 

No. 32029-4-III; No. 32030-8-III 

State v. Dunn; State v. Long 

burglary, or robbery based on the nature ofthese offenses. McReynolds, 104 Wn. App. at 

569-70. In support, we quoted LeFave's Search and Seizure treatise, also cited in Thein, 

stating, 

Perhaps because stolen property is not inherently incriminating in the 

same way as narcotics and because it is usually not as readily 

concealable in other possible hiding places as a small stash of drugs, 

courts have been more willing to assume that such property will be 

found at the residence of the thief, burglar, or robber. It is 

commonly said that in such circumstances account may be taken of 

the 'type of crime, the nature of the missing items, the extent of the 

suspect's opportunity for concealment, and normal inferences as to 

where a criminal would be likely to hide stolen property.' It is most 

relevant, therefore, that the objects are 'the sort of materials that one 

would expect to be hidden at [the offender's] place ofresidence, 

both because of their value and bulk,' and also that the offender 'had 

ample opportunity to make a trip home to hide' the stolen property 

before his apprehension. 

McReynolds, 104 Wn. App. at 569-70 (alteration in original) (quoting LEFAVE, supra). 

Thus, instead of expanding the Thein ruling to limit inferences made in nondrug offenses, 

the McReynolds court suggested a more limited reading of Thein. McReynolds, 104 Wn. 

App. at 570. We construed Thein to require a careful examination ofthe officer's 

affidavit, and the specific facts and circumstances therein, to determine whether it 

establishes a reasonable inference that evidence of criminal activity could be found at the 

place to be searched. Id. 

10 

No. 32029-4-111; No. 32030-8-111 

State v. Dunn,' State v, Long 

Here, the defendants argue that the facts in the affidavit do not establish a 

reasonable nexus between the items sought and Mr. Long's residence. We disagree. 

After reviewing the affidavit in its entirety, including Undersheriff Brown's account of 

the circumstances, the description of the premises to be searched, and the list of items to 

be seized, we conclude that the affidavit contains specific facts to establish a reasonable 

nexus between the items to be seized and the place to be searched. 

Based on the facts and circumstances presented in the affidavit, it was reasonable 

to conclude that the missing items would likely be found at Mr. Long's residence on 

Hogeye Hollow Road. According to the affidavit, Mr. Long was seen in possession of a 

truck carrying an ATV. The truck belonged to Mr. Zink, and the ATV with camouflage 

packs matched Mr. Zink's description of one of his two missing ATVs. When witnesses 

observed Mr. Long with the truck and missing ATV, he was driving on Hogeye Hollow 

Road. According to the description ofthe premises to be searched, Hogeye Hollow Road 

is where Mr. Long's residence is located. Moreover, the items stolen were not inherently 

incriminating in the same way as narcotics, and many of the items were bulky and, 

therefore, likely to be hidden inside a building. The judge issuing the warrant was 

entitled to draw the reasonable inference that Mr. Long was driving to his residence with 

the missing property, and that the property would likely be found there. 

11 

No. 32029-4-111; No. 32030-8-111 

State v. Dunn; State v. Long 

We conclude that the trial court erred in suppressing the evidence found in the 

search of Mr. Long's home, garage, and barn. Specific facts support both that Mr. Long 

participated in the burglary and that the missing items would likely be found at Mr. 

Long's home, garage, or barn. The search warrant therefore was supported by probable 

cause. 

We vacate the suppression orders. Additionally, we vacate the orders of dismissal 

and remand for further proceedings. 

Lawrence-Berrey, J. 

WE CONCUR: 


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