COURT OF APPEALS

FILED

O! V( SIO i II

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

2015 NNAR 31 MI 8: 35

STATE OF WASHINGTON, 

v. 

MICHAEL A. JONES, 

DIVISION II

ST ` E F VIA 1NGTON

No. 45001- 1 - Ar

Respondent, 

Appellant. 

UNPUBLISHED OPINION

MELNICK, J. — Michael Jones appeals from his jury conviction for use of drug

paraphernalia and bail jumping. Jones argues that probable cause did not exist to issue the search

warrant for his girlfriend' s parents' home, and that the court violated his public trial rights by

addressing peremptory challenges offthe record. We reject Jones' s arguments and affirm the trial

court. 

FACTS

On October 18, 2012, someone burglarized Brian and Trish Settlemyre' s home' and stole

various items, including several guns. Deputy Ryan P. Tully responded to the Settlemyres' home. 

The next day, while Deputy Tully was present at the Settlemyres' home, a person called Brian on

the phone and stated that he or she had heard Tina Falkner talking about " ripping off a place near

the golf course where there were a lot of guns." Clerk' s Papers ( CP) at 20. This person repeated

the same story to the police. Fearing retaliation, he or she asked to remain nameless. According

to Deputy Tully, this person had " provided reliable information on another case." CP at 20. 

1 For clarity, we refer to Brian and Trish Settlemyre by their first names. We intend no disrespect. 
45001 - 1 - II

Because the burglar had not completely ransacked their home, the Settlemyres believed

that the burglar knew what they had and where it was. Jones matched this description. Brian and

Jones' s father were friends, Jones had been in the Settlemyres' home in the past, and Jones and

Falkner were in a relationship. 

Deputy Tully and another officer went to Falkner' s parents' home where Jones and Falkner

had been staying for the prior couple weeks. The police made contact with Jones who " appeared

very nervous" and " seemed to be trying to get [ the police] to leave." CP at 20. Three days later, 

the police returned to the Falkners' home and saw that the windows had been covered up and the

porch door had been locked. 

The police subsequently received a call from another person. This person reported that he

or she had " heard from at least two people that [Jones] was going around town bragging about the

burglary. [ Jones] was telling people that he knew about the guns and other items because his

family is close to Brian' s." CP at 21. In addition, Jones tried to sell the person an item similar to

one stolen from the Settlemyres' home. Like the first informer, this person feared retaliation and

asked to remain nameless. This person had also " previously provided [information] to [the police] 

that has proved to be reliable." CP at 21. 

On October 25, 2012, the police applied for and obtained a warrant to search the Falkners' 

residence for any items that had been stolen from the Settlemyres. During the search, the police

discovered a bag containing burnt butter knives,2 plastic tubes, and baggies containing a substance

later identified as methamphetamine. 

2 The butter knives were used to smoke marijuana by heating the knives and pressing marijuana

between them. 

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PROCEDURAL HISTORY

The State charged Jones with possession of methamphetamine, use of drug paraphernalia, 

and bail jumping.3 Jones moved to suppress the evidence obtained during the search ofthe Falkner

residence. He specifically argued that the police informants were not reliable and that the

information in the search warrant affidavit did not establish probable cause. The trial court heard

argument and denied Jones' s motion, ruling that a reasonable magistrate could have found

probable cause. The trial court did not state its reasoning. 

During voir dire, the parties questioned the jurors in open court. The parties then exercised

their peremptory challenges outside the hearing of the prospective jurors, at the bailiff' s table. A

written record of the peremptory challenges was filed on the same day. 

Following a trial, the jury found Jones guilty of using drug paraphernalia and bail jumping, 

and hung on the methamphetamine possession charge. Jones appeals his convictions. 

ANALYSIS

I. SEARCH WARRANT

Jones argues that the search warrant for the Falkners' home was invalid because the

magistrate relied on informants who were not reliable and because the warrant affidavit failed to

establish probable cause. For the first time on appeal, Jones also argues that the magistrate relied

on an informant with no demonstrated basis of knowledge, and that no nexus existed between the

items sought and the Falkners' home. We hold that the trial court did not err by finding the search

warrant affidavit established probable cause. 

3 Jones failed to appear for a hearing while he was on bail, which was the basis for the bail jumping

charge. 

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A. Standard of Review

We review a magistrate' s issuance of a search warrant under an abuse of discretion

standard. State v. Neth, 165 Wn.2d 177, 182, 196 P. 3d 658 ( 2008). We generally give great

deference to the magistrate' s decision. State v. Cole, 128 Wn.2d 262, 286, 906 P. 2d 925 ( 1995). 

Yet, ifthe affidavit offers no " substantial basis for determining probable cause," deference to the

magistrate is inappropriate. State v. Lyons, 174 Wn.2d 354, 363, 275 P. 3d 314 ( 2012). 

At a suppression hearing, the trial court acts in an " appellate -like capacity." Neth, 165

Wn.2d at 182. Because we perform the same review of the magistrate' s actions as the trial court, 

we will defer to the magistrate but not to the trial court. Neth, 165 Wn.2d at 182. 

A magistrate should issue a search warrant only if there is probable cause to believe the

defendant is involved in criminal activity and that evidence of the criminal activity will be found

in the place to be searched. Neth, 165 Wn.2d at 182. " It is only the probability of criminal activity, 

not a prima facie showing of it, that governs probable cause. The magistrate is entitled to make

reasonable inferences from the facts and circumstances set out in the affidavit." State v. Maddox, 

152 Wn.2d 499, 505, 98 P. 3d 1199 (2004). A motion to suppress will fail ifa reasonable magistrate

could find probable cause. State v. Gentry, 125 Wn.2d 570, 606, 888 P. 2d 1105 ( 1995). " All

doubts are resolved in favor of the warrant." State v. Anderson, 105 Wn. App. 223, 228, 19 P.3d

1094 ( 2001). 

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B. Informants - Aguilar- Spinelli Test

Probable cause for a search warrant may be based on information from an informant. State

v. Gaddy, 152 Wn.2d 64, 71, 93 P. 3d 872 ( 2004). For an informant' s tip to create probable cause

requires two conditions: 

1) the officer' s affidavit must set forth some ofthe underlying circumstances from

which the informant drew his conclusion so that a magistrate can independently

evaluate the reliability of the manner in which the informant acquired his

information; and ( 2) the affidavit must set forth some of the underlying

circumstances from which the officer concluded that the informant was credible or

his information reliable. 

State v. Jackson, 102 Wn.2d 432, 435, 688 P. 2d 136 ( 1984) ( citing Aguilar v. Texas, 378 U.S. 108, 

114, 84 S. Ct. 1509, 12 L. Ed. 2d 723 ( 1964), abrogated by Illinois v. Gates, 462 U.S. 213, 103 S. 

Ct. 2317, 76 L. Ed. 2d 527 ( 1983); Spinelli v. United States, 393 U.S. 410, 413,, 89 S. Ct. 584, 21

L. Ed. 2d 637 ( 1969), abrogated by Gates, 462 U.S. 213). This two part test encompasses a " basis

of knowledge" prong and a " veracity" prong, respectively. Jackson, 102 Wn.2d at 437. Here, 

both prongs are satisfied. 

1. Basis of Knowledge

Typically, the basis of knowledge prong is satisfied by information that the informant

personally saw the facts asserted and is passing on firsthand information. State v. McCord, 125

Wn. App. 888, 893, 106 P. 3d 832 ( 2005). In the present case, the first informant personally. heard

Falkner talk about the burglary. Jones does not challenge the first informant on the basis of

knowledge prong. Rather, Jones argues that the second informant did not have a basis of

knowledge because the second informant merely repeated hearsay obtained from other people, 

namely " Jones was ` going around town bragging about the burglary. "' Br. of Appellant at 18

quoting CP at 21). 

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If an informant reports hearsay, the knowledge prong may still be satisfied if there is

sufficient information that the hearsay establishes a basis of knowledge. Jackson, 102 Wn.2d at

437 -38. Here, the affidavit indicates that "[ t]he citizen also informed [the requesting officer] that

Jones] tried to sell an item to them that is similar to one stolen from the Settlemyre residence." 

CP at 21. It is unclear from the plain language whether the word " them" is used as a gender - 

neutral way to refer to the second informant himself or herself ( see CP at 21 ( referring to the

informant as " they ")), or whether the word refers to the people whom Jones was allegedly bragging

to. A reasonable magistrate could infer that the affidavit meant that the second informant had

personally been approached by Jones to buy an item similar to one stolen in the burglary. This

information would corroborate the second informant' s hearsay. Drawing all doubts in favor ofthe

warrant, we hold that the basis of knowledge prong is satisfied. 

2. Veracity

The veracity test differs depending on the informant' s status. State v. Ibarra, 61 Wn. App. 

695, 699, 812 P. 2d 114 ( 1991). The courts distinguish between professional informants and citizen

informants, and whether the informant' s identity is known to the police. Ibarra, 61 Wn. App. at

699. Typically, citizen informants are subject to a less stringent test for veracity. Ibarra, 61 Wn. 

App. at 699. But "Washington requires a heightened showing of credibility for citizen informants

whose identity is known to police but not disclosed to the magistrate." State v. Atchley, 142 Wn. 

App. 147, 162, 173 P. 3d 323 ( 2007). This standard exists because of the risk that the informant

may be an "` anonymous troublemaker. "' State v. Northness, 20 Wn. App. 551, 557, 582 P. 2d 546

1978) ( quoting United States v. Darensbourg, 520 F.2d 985, 988 ( 5th Cir. 1975)). 

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When a citizen informant remains unidentified to the magistrate but known to the police, 

the affidavit must show that " the informant is truly a citizen informant who is not involved in the

criminal activity or motivated by self - interest." Cole, 128 Wn.2d at 287. The affidavit must

support a reasonable inference that the informant' s information is credible and that the informant

has no motive to falsify. Cole, 128 Wn.2d at 287 -88. 

This burden is not onerous. Where a citizen wishes to remain anonymous, "' his reliability . 

could certainly be corroborated by description of him, his purpose for being at the locus of the

crime, and the reason for his desire to remain anonymous. "' State v. Berlin, 46 Wn. App. 587, 

591, 731 P. 2d 548 ( 1987) ( quoting State v. Chatmon, 9 Wn. App. 741, 748, 515 P.2d 530 ( 1973)). 

However, it is not enough for the affidavit to merely recite that an informant is credible. Aguilar, 

378 U.S. at 114. Similarly, it is not enough for an affidavit to recite that an informant has proven

to be reliable in the past because "` [ r]eliable'. . . is a mere conclusion of the affiant which could

mean a number of things." State v. Woodall, 100 Wn.2d 74, 76, 666 P. 2d 364 ( 1983). 

Here, both of the informants identified in the search warrant affidavit were " confidential

citizen[ s]" who were not known to the magistrate but were known to the police. CP at 20, 21. The

affidavit further states that both informants had provided the police with reliable information on

other occasions, and that the informants wanted to remain anonymous out of fear ofretaliation. 

In relying on all the facts and circumstances presented in the search warrant affidavit, a

reasonable magistrate could determine that the informants were reliable. Here, unlike Chatmon, 

the informants here were not truly anonymous. Cf. Chatmon, 9 Wn. App. at 742, 748 ( holding

that there was insufficient indicia of an informant' s reliability where the informant was unknown

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to both magistrate and police). Both informants were known to the police and had provided

information to the police on previous occasions. These facts reduce the risk that the informants

were " anonymous troublemakers." The risk is further reduced by the fact that the informants had

an innocuous reason for remaining anonymousthey feared retaliation. Furthermore, unlike

Berlin, the informants were not involved in suspicious behavior themselves. Cf. Berlin, 46 Wn. 

App. at 588 -89, 591 -92 ( holding that magistrate could find sufficient indicia of reliability of

confidential informants who divulged their names and addresses to the police even though

informants did not indicate why they were present at defendant' s marijuana grow operation). 

Rather, the informants obtained their information innocently: the first informant overheard Falkner

planning a burglary, while the second informant was approached by Jones. Finally, the informants

had both previously provided information that the police had found reliable. 

In short, nothing in this case " promoted suspicions that the informants were more than

merely civic - minded citizens." State v. Rodriguez, 53 Wn. App. 571, 576, 769 P.2d 309 ( 1989). 

Accordingly, while reasonable minds could differ on-whether the informants were reliable, we

have independently reviewed the search warrant and defer to the magistrate' s determination. 

C. Probable Cause

Probable cause is established in an affidavit supporting a search warrant by setting forth

facts sufficient for a reasonable person to conclude the defendant probably is involved in criminal

activity." State v. Huft, 106 Wn.2d 206, 209, 720 P. 2d 838 ( 1986). 

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Here, a reasonable magistrate could conclude from the informants' tips, the police

investigation, and other facts that Jones was probably involved in criminal activity. Jones' s

girlfriend, Falkner, planned to steal from " a place ... where there were a lot of guns," and

numerous guns were in fact stolen from the Settlemyres' home. CP at 20. The Settlemyres' home

was not " completely torn apart," but appeared to be burglarized by someone familiar with the

layout of the home and the locations of valuables and firearms. CP at 20. Jones possessed this

knowledge. He acted suspiciously around the police. Yet, around other people, Jones bragged

about the burglary and tried to sell items that were similar to the stolen items. When taken together, 

these facts would justify a reasonable magistrate in determining there was probable cause to

believe that Jones had committed a crime. 

D. Nexus

Probable cause cannot exist without both "` 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.'" State

v. Thein, 138 Wn.2d 133, 140, 977 P. 2d 582 ( 1999) ( quoting State v. Goble, 88 Wn. App. 503, 

509, 945 P. 2d 263 ( 1997)). 

Probable cause to believe a defendant committed a crime does not always, by itself, create

probable cause to search that defendant' s home. See Thein, 138 Wn.2d at 148 -50. Yet, certain

circumstances may allow the inference that evidence may be found in the defendant' s residence. 

For example, as the Thein court recognized, " personal items of continuing utility" that are " not

inherently incriminating" might likely be kept in a defendant' s home. 138 Wn.2d at 149 n.4. And

as we have previously noted in State v. McReynolds: 

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Here, the question is whether, assuming a not too long passage oftime since the

crime, it is proper to infer that the criminal would have the fruits ofhis crime in his

residence, vehicle or place of business. 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 ofthe thief, burglar or robber. 

104 Wn. App. 560, 569 -70, 17 P. 3d 608 ( 2000) (quoting WAYNE R. LAFAVE, SEARCH AND SEIZURE

3. 7( d), at 381 -84 ( 3d ed. 1996) ( footnotes omitted)) ( emphasis added). We have such a case

here. First, the burglary occurred temporally close to the search warrant application and execution. 

Second, the stolen items included various power tools and guns —items that are not inherently

incriminating and not as readily concealable as controlled substances. A reasonable magistrate

could conclude that if Jones had indeed burglarized the Settlemyres' home, he would be keeping

the fruits of the crime at the place he stayed, the Falkner residence. Drawing all doubts in favor

of the warrant, we hold that a nexus exists between the place to be searched and the items being

sought. 

II. PUBLIC TRIAL

Jones argues that peremptory challenges are an integral part of , jury selection, and that

holding peremptory challenges at the bailiff' s table outside the earshot ofthe venire and spectators

violated his public trial rights. The State argues that peremptory challenges do not implicate public

trial rights. We agree with the State and reject Jones' s public trial arguments. 

A. Standard of Review

The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington State Constitution guarantee a defendant the right to a public trial. State v. Wise, 176

Wn.2d 1, 9, 288 P. 3d 1113 ( 2012). In general, this right requires that certain proceedings be held

in open court unless application of the five- factor test set forth in State v. Bone -Club, 128 Wn.2d. 

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254, 258 -59, 906 P. 2d 325 ( 1995), supports closure of the courtroom. Whether a courtroom

closure violated a defendant' s right to a public trial is a question of law we review de novo. Wise, 

176 Wn.2d at 9. 

The threshold determination when addressing an alleged violation of the public trial right

is whether the proceeding at issue even implicates the right. State v. Sublett, 176 Wn.2d 58, 71, 

292 P. 3d 715 ( 2012). First, we consider whether the particular proceeding at issue " falls within a

category of proceedings that our Supreme Court has already acknowledged implicates a

defendant' s public trial right." State v. Wilson, 174 Wn. App. 328, 337, 298 P.3d 148, petitionfor

review filed, No. 88818 -3 ( Wash. May 16, 2013). Second, ifthe proceeding at issue does not fall

within a specific protected category, we determine whether the proceeding implicates the public

trial right using the experience and logic test adopted in Sublett, 176 Wn.2d at 73. Wilson, 174

Wn. App. at 335. 

B. Peremptory Challenges

Jones argues that the trial court violated his right to a public trial by allowing peremptory

challenges at the bailiff's table, which was outside the earshot of the venire and spectators. Our

recent caselaw established that exercising preemptory challenges does not implicate the public trial

right. State v. Marks, _ Wn. App. _, 339 P. 3d 196, 198 -99 ( 2014), petition for reviewfiled, No. 

911487 ( Wash. Dec. 29, 2014); State v. Dunn, 180 Wn. App. 570, 575, 321 P. 3d 1283 ( 2014), 

review denied, 181 Wn.2d 1030 ( 2015). Therefore, we hold that the trial court did not violate

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Jones' s public trial right by allowing counsel to make peremptory challenges at the bailiff' s table, 

outside the earshot of the venire and courtroom spectators. Because the exercise of peremptory

challenges does not implicate the public trial right, no Bone -Club analysis is required. 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. 

We concur: 

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