### FILED AUGUST 28, 2014 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III



### INTHE COURT OFAPPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) 

### No. 31448-1-III ) 

### Respondent, ) ) 

### v. ) 

### UNPUBLISHED OPINION ) 

### RICHARDEDWARDFENTON, ) ) 

### Appellant. ) 

### LAWRENCE-BERREY, 

### J.

- Following ajury trial, Richard Fentonwas convicted of two counts ofdelivery ofa controlled substancewithin 1,000 feet ofa school bus route and one count ofpossessionwith intenttomanufacture or deliver a controlled substance. Mr. Fenton appeals, contendingthatthe police lackedprobable causeto obtain a search warrant authorizing the search ofhis apartment andthat the lower courterredby not grantinghis motion to suppress. We concludethat the State established bothbases ofthe Aguilar-Spinelli 1

### test and affirm the lower court's denial ofMr. Fenton'smotionto

1

### Aguilar

### v. Texas, 

### 378 U.S. 108,84 S. Ct. 1509, 12 L. 

### Ed. 2d 723 (1964), abrogatedbyIllinois 

### v. Gates, 

### 462 U.S. 213, 103 S. Ct. 2317, 76 L. 

### Ed. 2d 527 (1983); Spinelli

### v. UnitedStates, 

### 393 U.S. 410,89 S. Ct. 584,21 L. 

### Ed. 2d 637 (1969), abrogated by Gates, 

### 462 U.S. 213, butadheredto byState 

### v. Jackson, 

### 102 Wn.2d432,688 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 thejudgment and sentence contains a scrivener's errorthat requires correction. We agree and remand to correct thejudgment and sentence. FACTS OnNovember 7, 2010, a Benton County Superior Courtjudge issued a search warrant based upon the following information contained in Kennewick Police Department Detective Juan Dorame's supporting affidavit: During the month ofSeptember (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 thepasthas lead [sic] to several arrests and seizure ofnarcotics. This leads me to believe that the CI's information is credible and reliable. The CI has been in constant contactwith me over the last several months. The CI stated that RichardFenton 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 

### itandthe CI confirmed that he was in fact theperson that is selling Methamphetamine at the aforementioned location.
(1984). 2No. 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 controlledbuy, 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 controlledbuy and found to be clear ofany 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-recordedbuy 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 providedus a small clearplastic zip lock baggie containingpurported Methamphetamine that was purchased from Richard Fenton (Thurman). After the controlledbuy, the purported Methamphetamine was field tested and it testedpresumptivepositive for Methamphetamine. Based onthe aforementioned information I believe there is probable cause to believethat RichardFenton (Thurman) is selling narcotics (Methamphetamine) from his apartment ( 108 N. Conway Street Apt. #B). I believe that the crime ofMethamphetaminepossessionJdelivery has and is occurring at 108 N. Conway StreetApt. #B and evidence ofthese crimes couldbe 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. Fentonwith two counts ofdelivery ofa controlled substance (methamphetamine) within 1,000 feet ofa school bus route and one


### 3No.31448-1-III 

### State 

### v. Fenton

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

### Mr. Fenton moved to suppress the evidence, arguingthe 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 sufficientto establish the informant's reliability. Thejury found Mr. Fenton guilty as charged. At sentencing, the court imposed a standardrange sentence and a variable term ofcommunity custody. ANALYSIS 

### Probable Cause. Mr. Fenton attacks the validity ofthe warrant onthe ground that the informantwas unreliable. Specifically, he maintains that the warrant fails to set forth facts that establish the informant's veracity and basis ofknowledge as required by 

### Spinelli
v. 

### UnitedStates, 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. 2d723 (1964). We review issuance ofa search warrant for an abuse ofdiscretion. 

### 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 ofprobable cause in favor ofthe validity ofthe search warrant. Both on appeal and before the trial court at the suppression hearing, review ofthe issuance is "limitedto
4

### No. 31448-1-III State 

### v. Fenton


### the four comers ofthe affidavit supporting probable cause." State 

### v. Neth, 

### 165 Wn.2d 177,182, 196 P.3d 658 (2008). Moreover, although we defer to the issuingjudge'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 ifthe State sets forth facts and circumstances which, if believed, lead a neutral and detached person to conclude that moreprobably than not, evidence ofa crime will be found ifa search takes place. In re Det. of Petersen, 145 

### Wn.2d 789, 797,42 PJd952 (2002). When determining probable cause to arrest on an informant's tip, Washington courts apply theAguilar-Spinelli

### test. State 

### v. Salinas, 

### 119 Wn.2d 192, 199-200, 829 P.2d 1068 (1992). Underthattest, 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). "Boththe reliability ofthe manner by which the information was acquired and the reliability ofthe informant must be shown in an effortto determine present

### reliability." State 

### v. Casto, 

### 39 Wn. App. 229, 234-35, 692 P.2d 890 (1984) (emphasis in original). Conclusory assertions ofreliability will not suffice. Id.



### 5No. 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 aboutthe infonnant's criminal history or details ofher involvement in previous controlled buys. He argues, "[t]he detective's conc1usory statement hardly conveys a 'trackrecord' ofsupplying reliable specific infonnationthat may support a search warrant." Br. ofAppellant at 9. He also maintains thatunder

### State
v. 

### Steenerson, 38 Wn. App. 722, 688 P.2d 544 (1984), police-initiatedbuys do not demonstrate an infonnant's reliability. Relying onthat case, he argues that because the affidavit does not establish thatthe infonnant initiated the controlled buy, "[t]he infonnant'spurchase ofsuspected methamphetamine suggested only her cooperation and indicates very little about [her] credibility and ability to accurately report facts while not under supervision." Br. ofAppellant at 10-11. Mr. Fenton's reliance on 

### Steenerson is misplaced. While he is correct thatpoliceinitiated buys alone do not establish veracity, it is well settled that the veracity prong may be satisfied ifthe infonnanthas a track record ofproviding 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 infonnationhas been given which has led to arrests and convictions." 

### State v. 

### Fisher, 96 Wn.2d 962,965,639P.2d 743 (1982).

6No. 31448-1-III 

### State v. 

### Fenton Moreover, a properly conducted controlled buy makes an informant a credible
source ofinformation. 1 WAYNELAFAVE, 

### Search & 

### Seizure 

### § 3.3(b) at 512 (1978); 

### Casto, 39 Wn. App. at 234-35. In 

### Casto, the informantreported topolice thathe could purchase drugs in the defendant's residence. Police then arranged for the informantto make a purchase with marked bills and searched the informant for drugs before the transaction. Police maintained surveillance on the informantbefore 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 claimingto know that drugs are for sale at a particularplace is given marked money, searched for drugs, and observedwhile 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 ofthe test for probable cause. 

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

### Casto, the credibility prong is establishedthrough the showing that the confidential informanthad provided police with accurate information in the past. Mr. Fenton also challenges the informant's basis ofknowledge, contending the affidavit fails to establish thatthe informant had any firsthand dealing with Mr. Fenton or had been inside his apartment. Generally, the "basis ofknowledge"prong requires a
7No. 31448-1-II1 

### State v. Fenton showing thatthe 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 ofa properly executed controlled buy satisfies the basis ofknowledge prong. Here, the controlled buy was similarto the one in 

### Casto: the informant was "searched before and after the controlled buy," given prerecorded buy money, "keptunder constant surveillance" as she entered and exited Mr. Fenton's apartment, and turned over a controlled substance afterthe buy. Underthese facts, the affidavit meets both prongs ofthe

### Aguilar-Spinellitest. Consequently, the trial court correctly deniedMr. Fenton's suppression motion. The showing ofprobable cause was sufficientunder the

### Aguilar-Spinellitest. Accordingly, the trial courtproperly denied the motion to dismiss. 

### SentencingIssues. Mr. Fenton next argues that the trial court sentencedhim to a variable range ofcommunity custody in violation ofRCW 9.94A.701 because the length ofhis community custody depended onthe amount ofearly release time he earned. The State concedes error. We acceptthe 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 ofcommunity custody contingent onthe amount ofearned release but instead, it must determine the precise length ofcommunity 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 ofcommunity custody: (A) The defendant shall be on community placement or community custody for the longer of: (1) the period ofearly 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 thejudgment and sentence contains a scrivener's error, pointing out that it states that the date ofcount 2 was November 1,2010, whereas the evidence established that the date ofthe offense was November 5, 2010. The State again concedes error. We accept the State's concession. The remedy for clerical or scrivener's errors injudgment and sentence forms is remand to the trial court for

9

### No. 31448-1-III State v. Fenton
correction. In re Pers. Restraintof Mayer, 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 ofcommunity custody and incorrectly stating the date ofcount 2. We, therefore, affirm the convictions but remand to the trial courtto issue a correctedjudgment and sentence consistentwith this opinion. 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 pursuant to RCW 2.06.040.

WE CONCUR: Lawrence-Berrey, J.

Fearing, 

### J.

10