### FILED SEPTEMBER 1,2015 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III

INTHE COURTOF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, ) ) No. 32406-1-111 Respondent, ) ) v. ) ) JOSE MARTINEZ II, ) UNPUBLISHED OPINION ) Appellant. ) KORSMO, J.

- Theremaining issue inthis third appeal ofthis case is whetherthe trial court erred in denying Jose Martinez's motionto suppress. We affirm. FACTS The operative facts ofthis case are largelyprocedural. 

### Mr. Martinez was charged in2008 withthree counts ofpossession ofcocaine with intentto deliver and accompanying school bus stop enhancements. The charges followed a series of controlledbuys by an informantthat ledtothe issuance ofa searchwarrant. Defense counsel filed a motion to suppress the evidence, alleging thatthe search warrantwas inadequatebecauseitmerely used the words "controlledbuy"without adequately describing theprocess. Themotion, however, was neverheardbecause a plea agreementNo. 32406-I-III State v. Martinez

was reached. Mr. Martinez pleaded guilty to one count (without an enhancement) and
was sentenced to 20 months ofconfinement. The following year he moved to withdraw his guilty plea on the basis that his counsel failed to provide adequate information concerning the immigration consequences ofhis guilty plea. This court granted him reliefafter determining that his trial counsel failed to provide effective assistance. State v. Martinez, 161 Wn. App. 436, 253 P.3d445 (2011). Representedby new counsel, Mr. Martinez stood trial on the original charges. New counsel did not renew the original motion to suppress. Ajury found Mr. Martinez guilty on two counts and also found both enhancements proven. He was sentenced to 68 months in prison. He appealed again to this court. In the second appeal, he argued that his most recent trial counsel had performed ineffectively by not renewing the challenge to the search warrant. 1 Because the record
was insufficient to adjudge the ineffective assistance claim, this court remanded for a suppression hearing in accordance with the decision in State v. Jansen, 15 Wn. App. 348, 549 P.2d 32, review denied, 87 Wn.2d 1015 (1976).2 See State v. Martinez, noted at 178

I He also raised several other arguments that we concluded were without merit. 2We discuss Jansen more fully later in this opinion.

2No. 32406-1-III State 

### v. Martinez
Wn. App. 1031 (2013) (Martinez II). Mr. Martinez did not seekreview ofour decision. The casewas mandated backto the Walla Walla Superior Court. Atthe suppression hearing, the trial court considered the testimony ofboth the detective who prepared the search warrant affidavit and the magistrate who issued the search warrant. Both testified thatthey understood the term "controlledbuy" to mean a situation in which an informant agrees to purchase drugs at a particular location, is searched for the presence ofcontrolled substances, is given money with which to purchase a controlled substance, is observed by law enforcement enter into the company ofthe suspect, and is searched again upon the informant's return with the purchased substance. Clerk'sPapers (CP) at 161-162. The trialjudge found this testimony credible and concluded that the officerused the phrase as a "term ofart" and that the issuing magistrate likewise understood it in the same manner. The motion to suppress was denied. CP at 163. Mr. Martinez again appealed to this court. ANALYSIS The sole issue in this appeal is whether the trial court correctly denied the motion to suppress. We agree with the trial court that the search warrant establishedprobable
cause to search Mr. Martinez's residence. Probable cause to issue a warrantis established ifthe supporting affidavit sets forth "facts sufficient for areasonable personto conclude the defendantprobably is involved in 3No. 32406-1-III State 

### v. Martinez
criminal activity." State v. Hujt, 106 Wn.2d 206,209, 720 P.2d 838 (1986). The affidavit mustbe tested in a commonsense fashion ratherthan hypertechnically; doubts are resolved in favor ofthe warrant. State v. Partin, 88 Wn.2d 899, 904, 567 P.2d 1136 (1977). The existence ofprobable cause is a legal questionwhich a reviewing court considers de novo. State v. Chamberlin, 161 Wn.2d 30, 40, 162 P.3d 389 (2007). Despitethe fact that de novo review applies to questions oflawratherthan discretionary decisions, "[g]reat deference is accordedthe issuing magistrate's determination ofprobable cause." State v. Cord, 103 Wn.2d 361, 366, 693 P.2d 81 (1985). Even ifthe propriety ofissuingthe warrant were debatable, the deference due the magistrate's decision would tip the balance in favor of upholdingthe warrant. State v. Jackson, 102 Wn.2d 432, 446, 688 P.2d 136 (1984). In light ofthe deference owed the magistrate's decision, the proper question on review is whetherthe magistrate coulddraw the connection, notwhetherheshoulddo so. Washington continues to apply the formerAguilarlSpinellP standards to assess the adequacy ofa search warrant affidavit. Jackson, 102 Wn.2d at 446.4 As applied in Washington, probable cause based on an informant's information requires that an affidavit establishboth the informant's reliability and basis ofknowledge. Id. at 443. Where one or

3Aguilarv. Texas, 378 U.S. 108,84 S. Ct. 1509, 12 L. Ed. 2d723 (1964); Spinelli v. UnitedStates, 393 U.S. 410,89 S. Ct. 584,21 L. Ed. 2d 637 (1969). 4 Federal courts now apply a totality ofthe circumstances test in evaluatingthe sufficiency ofa search warrant. Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). 4No.**32406~** I-III State 

### v. Martinez
both ofthose factors is weak, independentpolice investigation can supply corroboration. Id. at 445.Police frequently use infonnants to make purchases ofcontrolled substances. A properly conducted controlled buy makes an infonnant a credible source ofinfonnation. E.g., State v. Casto, 39 Wn. App. 229, 234-235, 692 P.2d 890 (1984). The reason was explained: In a "controlledbuy," an infonnant claimingto know that drugs are for sale at a particularplace is given marked money, searched for drugs, and observed while sent into the specified location. Ifthe infonnant "goes in empty and comes out full," his assertion that drugs were available is proven, and his reliability confinned. Properly executed, a controlled buy can thus provide the facts and circumstances necessary to satisfy both prongs ofthe test for probable cause. Id. This court has suggestedthat a controlledbuy must be described in orderto provide a basis for assuring the informant's reliability. State v. Taylor, 74 Wn. App. 111, 122,872 P.2d 53 (1994). In ourMartinez II opinion, we recognized thatthis aspect of Taylor was dicta. See Martinez II at *2. Our opinion also discussedJansen. Id. Jansen presented a factually similarproblem to thatpresented in Martinez II. There, as in this case, the search warrant affidavit discussed the use ofa "controlled buy" without describing how the controlled buy was conducted. 15 Wn. App. at 349. The prosecutor soughtto call the magistrate who issued the warrant to testify at the suppression hearing that he knew the words "controlledbuy" were a tenn ofart and also 5No. 32406-1-II1 State v. Martinez argued that the trialjudge should have takenjudicial notice ofthe meaning. ld. at 350. Division One ofthis courtremanded the case for the State to offerproofthat the detective and the magistrate both considered thephrase a term ofart. ld. at 351. Under the circumstances5 ofthis case, we followed Jansen in the previous appeal and remanded for a suppression hearing. 

### Mr. Martinez's primary argument here is that this court erred in following Jansen. His argumentthat we should nothave remanded for hearing fails under the law ofthe case doctrine. Folsom v. County a/Spokane, III Wn.2d 256, 263-265, 759 P.2d 1196 (1988). He did not seek further review ofMartinez II and, instead, accepted the benefit ofthe suppression hearing. Absent a showing that
ourprevious decision was clearly erroneous and harmful, that decision stands. ld. at 264. His more significant claim in this regard is thatJansen was wrongly decided because Washington courts are limited to the four corners ofthe search warrant affidavit. See State v. Neth, 165 Wn.2d 177, 182, 196 P3d658 (2008). 6 This argument is actually

5 Critical to the previous appeal was the fact that the unnoted motion had never been heard, leaving the State no opportunity to provide its evidence. An entirely different situation would have been presented ifa hearing had been held and the State had neglected to present evidence. Then the State would have been limited to the record made below, although it would still have been free to argue that "controlled buy" is a term ofart. 6Neth is the first Washington Supreme Court case to state that principle, but it did so as part ofits recitation ofsearch warrant review standards. Theissue was not before the court in Neth. 

### 6No. 32406-1-III State v. Martinez

a challenge to a portion oferR2.3, the rule governing search warrants. In part, that rule pennits ajudgeto take-and make a record of --evidence that it is outside the search warrant affidavit in support ofits probable cause detennination. Mr. Martinez's argument misses the mark because the trial court was not asked to consider evidence outside the four comers ofthe affidavit. Instead, it was asked to detennine the meaning ofevidence found in the affidavit-the meaning of"controlled buy." UnderJansen, the State was permitted to put forth evidence ofthe magistrate's understanding ofthe phrase that he had considered as part ofhis determination ofprobable cause. Extrinsic evidence is permittedto explain the meaning oftenns ofa contract. Bergv. Hudesman, 115 Wn.2d 657,801 P.2d 222 (1990). Jansen, well ahead ofBerg, essentially applied the
same principle to search warrant affidavits. Forboth reasons, we conclude that the trial court did not err in considering evidence ofthe meaning attributed to the words "controlled buy" by both the issuing magistrate and the detective who prepared the affidavit in support ofthe search warrant. This court directed the trial court to follow Jansen and Washington law does not conflict with that decision. Accordingly, both ofMr. Martinez'schallenges to the suppression hearing procedure fail.



### 7No. 32406-1-III State v. Martinez
His remaining challenge is a contention that the search warrant affidavit did not establish probable cause because it did not establish that the informant was credible.7 We disagree. First, the fact that the informant successfully set up the controlled buys established both his veracity and the reliability ofhis information. Casto, 39 Wn. App. at 234-235. Second, most ofthe informant's information was corroborated by the officers conducting surveillance ofthe controlled buys. Although much ofthat corroboration enhanced the informant's reliability, it secondarily supported his credibility. The affidavit describes three controlledbuys connected to the defendant's residence. 8 On the first occasion, the middleman went into the alley behind Mr. Martinez's house and came back soon thereafter with cocaine. On the othertwo occasions, the middleman went into Mr. Martinez's house and returned to the informant with cocaine. Although the description ofthese three incidents could have been more detailed, it was sufficient for the magistrate to find probable cause to believe cocaine was being delivered from the Martinez residence. Three deliveries ofcocaine were made to the informant, underpolice surveillance, by a man who twice entered the residence and

7 To the extent that Mr. Martinez argues that probable cause to search his house was lacking because the middleman actually transferred the drugs outside ofhis residence, his argument fails under a very factually similar case, State v. Mejia, 111 Wn.2d 892, 901, 766 P.2d 454 (1989). 8 Only one ofthe counts filed againstMr. Martinez involved an incident described in the search warrant. The other delivery count was not connected to the house and the remaining count involved the cocaine found when the warrantwas served. 8No. 32406-I-III State v. Martinez

oncewentto the back alley ofthe residence before returning to the informantwith cocaine. A reasonable person could conclude that cocaine was being sold from the residence. Probable cause existed to issue the search warrant. The magistrate did not errby approvingthe warrant. The trial court correctly deniedthe motionto suppress. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. K1smo, J. WE CONCUR:

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