FILED 


AUGUST 28, 2014 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) No. 31448-1-III 

) 

Respondent, ) 

) 

v. ) UNPUBLISHED OPINION 

) 

RICHARD EDWARD FENTON, ) 


) 


Appellant. ) 


LAWRENCE-BERREY, J. - Following a jury trial, Richard Fenton was convicted of 

two counts of delivery of a controlled substance within 1,000 feet of a school bus route 

and one count ofpossession with intent to manufacture or deliver a controlled substance. 

Mr. Fenton appeals, contending that the police lacked probable cause to obtain a search 

warrant authorizing the search ofhis apartment and that the lower court erred by not 

granting his motion to suppress. We conclude that the State established both bases ofthe 

Aguilar-Spinelli1 test and affirm the lower court's denial ofMr. Fenton's motion to 

1 Aguilar v. Texas, 378 U.S. 108,84 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. 410,89 S. Ct. 584,21 L. Ed. 2d 637 (1969), abrogated 

by Gates, 462 U.S. 213, but adhered to by State v. Jackson, 102 Wn.2d 432,688 P.2d 136 
No. 31448-1-III 

State v. Fenton 

suppress. 

Mr. Fenton also asserts the trial court erred by imposing a variable term of 

community custody and that the judgment and sentence contains a scrivener's error that 

requires correction. We agree and remand to correct the judgment and sentence. 

FACTS 

On November 7, 2010, a Benton County Superior Court judge issued a search 

warrant based upon the following information contained in Kennewick Police Department 

Detective Juan Dorame's supporting affidavit: 

During the month of September (2010), CI # 10-027 provided information 

that Richard "Rick" Fenton (Thurman), is and has been selling narcotics in 

the city ofKennewick. The CI has provided information in the past that I 

have corroborated, based on my investigations, and I, as well as other law 

enforcement officers in our area, have deemed the Cl's information as 

credible. The information the CI has provided in the past has lead [ sic] to 

several arrests and seizure of narcotics. This leads me to believe that the 

CI's information is credible and reliable. The CI has been in constant 

contact with me over the last several months. 

The CI stated that Richard Fenton has been selling Methamphetamine from 

a residence located at 108 N. Conway Street Apt. #B, Kennewick 

Washington, Benton County. I checked our local (I/Leads) database and 

located Richard Fenton living at 108 N. Conway Street #B. I showed the CI 

a photo ofFenton, without personal information attached to it and the CI 

confirmed that he was in fact the person that is selling Methamphetamine at 

the aforementioned location. 

(1984). 

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No. 31448-I-II1 

State v. Fenton 

During the first three days ofNovember (2010), I conducted a controlled 

buy ofMethamphetamine from Richard Fenton at 108 N. Conway Street 

Apt. #B. 

During the controlled buy, I (along with other detectives from the 

Kennewick Police Department) met the CI at a pre-determined location. 

The CI was searched before and after the controlled buy and found to be 

clear of any drugs, money, or contraband. Before the buy I listened while 

the CI called Richard Fenton ... and arranged to purchase 

Methamphetamine. I provided the CI pre-recorded buy funds (that were 

used to purchase the Methamphetamine) and the CI was kept under constant 

surveillance as the CI entered and exited 108 N. Conway Street #B. After 

the controlled buy, the CI provided us a small clear plastic zip lock baggie 

containing purported Methamphetamine that was purchased from Richard 

Fenton (Thurman). After the controlled buy, the purported 

Methamphetamine was field tested and it tested presumptive positive for 

Methamphetamine. 

Based on the aforementioned information I believe there is probable cause 

to believe that Richard Fenton (Thurman) is selling narcotics 

(Methamphetamine) from his apartment ( 108 N. Conway Street Apt. #B). I 

believe that the crime of Methamphetamine possessionJdelivery has and is 

occurring at 108 N. Conway Street Apt. #B and evidence ofthese crimes 

could be located at 108 N. Conway Street Apt. #B and also be located on 

his person. 

Clerk's Papers (CP) at 22-23. 

When officers served the warrant at Mr. Fenton's apartment, they found 

methamphetamine in several separate bags, packaged marijuana, drug paraphernalia, drug 

ledgers, and scales. The State charged Mr. Fenton with two counts of delivery of a 

controlled substance (methamphetamine) within 1,000 feet of a school bus route and one 

3 

No.31448-1-III 

State v. Fenton 

count ofpossession with intent to manufacture or deliver a controlled substance. 

Mr. Fenton moved to suppress the evidence, arguing the search warrant was 

invalid because the affidavit failed to establish the informant's reliability. The trial court 

denied the motion, concluding the affidavit was legally sufficient to establish the 

informant's reliability. The jury found Mr. Fenton guilty as charged. At sentencing, the 

court imposed a standard range sentence and a variable term of community custody. 

ANALYSIS 

Probable Cause. Mr. Fenton attacks the validity of the warrant on the ground that 

the informant was unreliable. Specifically, he maintains that the warrant fails to set forth 

facts that establish the informant's veracity and basis of knowledge as required by Spinelli 

v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969) and Aguilar v. 

Texas, 378 U.S. 108,84 S. Ct. 1509,12 L. Ed. 2d 723 (1964). 

We review issuance of a search warrant for an abuse of discretion. State v. 

Maddox, 152 Wn.2d 499,509,98 P.3d 1199 (2004). In so doing, we give great deference 

to the issuingjudge's determination ofprobable cause. State v. Chenoweth, 160 Wn.2d 

454,477, 158 P.3d 595 (2007). Accordingly, we will generally resolve doubts about the 

existence of probable cause in favor of the validity of the search warrant. Both on appeal 

and before the trial court at the suppression hearing, review of the issuance is "limited to 

4 

No. 31448-1-III 

State v. Fenton 

the four comers of the affidavit supporting probable cause." State v. Neth, 165 Wn.2d 

177,182, 196 P.3d 658 (2008). Moreover, although we defer to the issuing judge's 

determination, the trial court's assessment ofprobable cause on a motion to suppress is a 

legal conclusion we review de novo. State v. Chamberlin, 161 Wn.2d 30, 40-41, 162 

P.3d 389 (2007). 

Probable cause exists if the State sets forth facts and circumstances which, if 

believed, lead a neutral and detached person to conclude that more probably than not, 

evidence of a crime will be found if a search takes place. In re Det. ofPetersen, 145 

Wn.2d 789, 797,42 PJd 952 (2002). 

When determining probable cause to arrest on an informant's tip, Washington 

courts apply the Aguilar-Spinelli test. State v. Salinas, 119 Wn.2d 192, 199-200, 829 

P .2d 1068 (1992). Under that test, the State must establish the informant's: (1) basis of 

knowledge and (2) veracity and reliability. State v. Tarter, 111 Wn. App. 336, 340, 44 

PJd 899 (2002). "Both the reliability of the manner by which the information was 

acquired and the reliability of the informant must be shown in an effort to determine 

present reliability." State v. Casto, 39 Wn. App. 229, 234-35, 692 P.2d 890 (1984) 

(emphasis in original). Conclusory assertions of reliability will not suffice. Id. 

5 

No. 31448-1-111 

State v. Fenton 

Mr. Fenton first challenges the infonnant's veracity. He argues the statements in 

the affidavit failed to provide infonnation about the infonnant's criminal history or details 

of her involvement in previous controlled buys. He argues, "[t]he detective's conc1usory 

statement hardly conveys a 'track record' of supplying reliable specific infonnation that 

may support a search warrant." Br. of Appellant at 9. He also maintains that under State 

v. Steenerson, 38 Wn. App. 722, 688 P.2d 544 (1984), police-initiated buys do not 

demonstrate an infonnant's reliability. Relying on that case, he argues that because the 

affidavit does not establish that the infonnant initiated the controlled buy, "[t]he 

infonnant's purchase of suspected methamphetamine suggested only her cooperation and 

indicates very little about [her] credibility and ability to accurately report facts while not 

under supervision." Br. of Appellant at 10-11. 

Mr. Fenton's reliance on Steenerson is misplaced. While he is correct that policeinitiated buys alone do not establish veracity, it is well settled that the veracity prong may 

be satisfied if the infonnant has a track record of providing accurate infonnation to the 

police. State v. Jackson, lO2 Wn.2d 432, 437,688 P.2d 136 (1984); Salinas, 119 Wn.2d 

at 200. In State v. Fisher, the court stated, "it is almost universally held to be sufficient if 

infonnation has been given which has led to arrests and convictions." State v. Fisher, 96 

Wn.2d 962,965,639 P.2d 743 (1982). 

6 

No. 31448-1-III 

State v. Fenton 

Moreover, a properly conducted controlled buy makes an informant a credible 

source of information. 1 WAYNE LAFAVE, Search & Seizure § 3.3(b) at 512 (1978); 

Casto, 39 Wn. App. at 234-35. In Casto, the informant reported to police that he could 

purchase drugs in the defendant's residence. Police then arranged for the informant to 

make a purchase with marked bills and searched the informant for drugs before the 

transaction. Police maintained surveillance on the informant before he entered the 

residence. Upon searching him when he emerged, police found drugs. In concluding 

these facts established the informant's reliability, the court explained: 

In a "controlled buy," an informant claiming to know that drugs are for sale 

at a particular place is given marked money, searched for drugs, and 

observed while sent into the specified location. Ifthe informant "goes in 

empty and comes out full," his assertion that drugs were available is proven, 

and his reliability confirmed. Properly executed, a controlled buy can thus 

provide the facts and circumstances necessary to satisfy both prongs of the 

test for probable cause. 

Casto, 39 Wn. App. at 234 (emphasis in original). Thus, under Casto, the credibility 

prong is established through the showing that the confidential informant had provided 

police with accurate information in the past. 

Mr. Fenton also challenges the informant's basis of knowledge, contending the 

affidavit fails to establish that the informant had any firsthand dealing with Mr. Fenton or 

had been inside his apartment. Generally, the "basis of knowledge" prong requires a 

7 

No. 31448-1-II1 

State v. Fenton 

showing that the informant has personal knowledge or is passing on firsthand 

information. Jackson, 102 Wn.2d at 437. Casto disposes ofMr. Fenton's contention. As 

just discussed, under Casto, a showing of a properly executed controlled buy satisfies the 

basis of knowledge prong. Here, the controlled buy was similar to the one in Casto: the 

informant was "searched before and after the controlled buy," given prerecorded buy 

money, "kept under constant surveillance" as she entered and exited Mr. Fenton's 

apartment, and turned over a controlled substance after the buy. 

Under these facts, the affidavit meets both prongs of the Aguilar-Spinelli test. 

Consequently, the trial court correctly denied Mr. Fenton's suppression motion. 

The showing of probable cause was sufficient under the Aguilar-Spinelli test. 

Accordingly, the trial court properly denied the motion to dismiss. 

Sentencing Issues. Mr. Fenton next argues that the trial court sentenced him to a 

variable range of community custody in violation ofRCW 9.94A.701 because the length 

of his community custody depended on the amount of early release time he earned. The 

State concedes error. We accept the State's concession and remand for a correction of 

Mr. Fenton's sentence consistent with this opinion. 

A trial court may only impose a sentence authorized by statute. In re Pers. 

Restraint olCarle, 93 Wn.2d 31, 33, 604 P.2d 1293 (1980). We review the legality ofa 

8 

No. 31448-1-II1 

State v. Fenton 

sentence de novo. In re Postsentence Review a/Leach, 161 Wn.2d 180, 184, 163 P.3d 

782 (2007). Under RCW 9.94A.701, "a court may no longer sentence an offender to a 

variable term of community custody contingent on the amount of earned release but 

instead, it must determine the precise length of community custody at the time of 

sentencing." State v. Franklin, 172 Wn.2d 831, 836,263 P.3d 585 (2011). 

Here, the court imposed the following sentence of community custody: 

(A) The defendant shall be on community placement or community custody 

for the longer of: 

(1) the period of early release. RCW 9.94A.728(1)[,] (2); or 

(2) the period imposed by the court, as follows: 

Counts one, two and three for 12 months. 

CP at 123. 

Under Franklin, the court could only sentence Mr. Fenton to a finite community 

custody term of 12 months. Accordingly, we remand to the trial court to issue a corrected 

judgment and sentence consistent with this opinion. 

Mr. Fenton also contends that the judgment and sentence contains a scrivener's 

error, pointing out that it states that the date of count 2 was November 1,2010, whereas 

the evidence established that the date of the offense was November 5, 2010. The State 

again concedes error. We accept the State's concession. The remedy for clerical or 

scrivener's errors in judgment and sentence forms is remand to the trial court for 

9 
No. 31448-1-III 

State v. Fenton 

correction. In re Pers. Restraint ofMayer, 128 Wn. App. 694, 701, 117 P.3d 353 (2005) 

(citing CrR 7.8(a)); see RAP 7.2(e). 

The trial court erred by imposing a variable term of community custody and 

incorrectly stating the date of count 2. We, therefore, affirm the convictions but remand 

to the trial court to issue a corrected judgment and sentence consistent with this opinion. 

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

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 


WE CONCUR: 


Lawrence-Berrey, J. 

Fearing, J. 

10