IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 47485-9-II

Respondent, 

v.

JOHN R. GARDNER, UNPUBLISHED OPINION

Appellant.

WORSWICK, J. — Following a bench trial on a stipulated record, the trial court found John 

Gardner guilty of unlawful possession of a controlled substance. Gardner appeals, asserting that 

the trial court erred by failing to suppress evidence obtained following the execution of a search 

warrant lacking probable cause in support. Gardner has also filed a statement of additional 

grounds (SAG) for review, in which he contends that the judge presiding over his suppression 

hearing made a disparaging remark toward him off the record. We affirm.

FACTS

Grays Harbor County Deputy Sheriff Kevin Schrader submitted an affidavit for a search 

warrant that provided in relevant part:

On [July, 24, 2013, t]he Grays Harbor County Drug Task Force (DTF) received a 

call from Aberdeen Officer Lampky, who advised that he had received a call from 

a concerned citizen (CC) who wished to remain anonymous. This CC advised him

of suspicious drug activity a[t] 1400 West First Street in Aberdeen. The CC advised 

him that John R. Gardner . . . was living at the location and was selling drugs from 

the location. Officer Lampkey provided the DTF with the phone number of the CC 

who wished to report this information to the DTF.

I called and spoke to the CC and asked him/her what they knew about the residence 

and the possible drug activity. The CC is known to me but wishes to remain 

Filed

Washington State

Court of Appeals

Division Two

June 7, 2016

Filed

Washington State

Court of Appeals

Division Two

June 7, 2016
No. 47485-9-II

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anonymous for fear of retaliation. The CC has no criminal history, the CC is not 

working for monetary gain, and the CC is not working off any criminal charges. 

The CC is motivated by seeing Gardner’s criminal drug activities stop. The CC 

advised me that he/she had been at the residence within the past 5 days and that 

he/she had seen methamphetamine on a table in Gardner’s bedroom which she 

described as being an upstairs bedroom that was accessed by the first door on the 

right as you come to the top of the stairs. The CC advised that they had seen 4 to 5 

baggies of a white crystalline substance on the table in this room. The CC advised 

me that he/she knew what methamphetamine looked like because they used to have 

friends who used methamphetamine and he/she has also attended drug and alcohol 

classes that discussed methamphetamine. The CC advised that he/she has 

witnessed multiple people go into the residence and stay for short periods of time. 

The CC believes that Gardner is selling drugs from the residence.

Clerk’s Papers (CP) at 15-16.

On July 26, 2013, the Grays Harbor District Court found probable cause to issue a search 

warrant based on Schrader’s affidavit. On August 1, 2013, officers went to 1400 West First 

Street to execute the search warrant. Officers entered the residence, located Gardner, and found 

2 grams of suspected methamphetamine in his pants pocket. Officers also found approximately 

77 grams of suspected methamphetamine in a hallway closet near Gardner’s bedroom. The 

following day, the State charged Gardner with unlawful possession of a controlled substance.

Gardner moved to suppress the evidence seized during the search, arguing that Schrader’s 

affidavit failed to establish the reliability of the known, but unnamed, citizen informant. The 

trial court denied Gardner’s suppression motion.

1

 Following a bench trial on a stipulated record, 

the trial court found Gardner guilty of unlawful possession of a controlled substance. Gardner 

appeals his conviction.

 

1 Gardner does not assign error to the trial court’s apparent failure to enter findings of fact and 

conclusions of law following the suppression hearing, as required under CrR 3.6(b). In any case,

the record is sufficient to review Gardner’s claim of error absent the entry of findings of fact and 

conclusions of law. State v. Riley, 69 Wn. App. 349, 352, 848 P.2d 1288 (1993).
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ANALYSIS

I. PROBABLE CAUSE TO ISSUE SEARCH WARRANT

Gardner contends that Schrader’s affidavit failed to establish probable cause upon which 

to issue a search warrant and, thus, the trial court erred by failing to suppress evidence seized 

pursuant to the search warrant. Specifically, Gardner contends that the affidavit in support of the 

search warrant failed to establish the reliability of the known but unnamed citizen informant. We 

disagree and affirm Gardner’s conviction.

We review de novo a trial court’s legal conclusion of whether an affidavit supported 

probable cause to issue a search warrant. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 

(2008). But our de novo review gives great deference to the issuing judge’s assessment of 

probable cause and resolves any doubts in favor of the search warrant’s validity. State v. 

Chenoweth, 160 Wn.2d 454, 477, 158 P.3d 595 (2007).

A search warrant may be issued only if the affidavit in support shows probable cause. 

State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). When determining whether probable 

cause existed to issue a search warrant where, as here, information was supplied by an informant, 

we apply the Aguilar-Spinelli2two-pronged test. State v. Atchley, 142 Wn. App. 147, 161, 173 

P.3d 323 (2007). This test examines (1) the “‘veracity’” or credibility of the informant and (2)

the informant’s “‘basis of knowledge.’” Atchley, 142 Wn. App. at 161 (quoting State v. Jackson, 

 

2 Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United 

States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), abrogated by Illinois v. Gates, 462 

U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), but adhered to by State v. Jackson, 102 

Wn.2d 432, 688 P.2d 136 (1984).
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102 Wn.2d 432, 435, 688 P.2d 136 (1984)). The credibility and basis of knowledge prongs are 

independent and both must be established in the affidavit. Jackson, 102 Wn.2d at 437.

A. Credibility

Where, as here, a citizen informant is known to police but unnamed in the affidavit, “the 

affidavit must contain sufficient ‘background facts to support a reasonable inference that the 

information is credible and without motive to falsify.’” Atchley, 142 Wn. App. at 162 (quoting 

State v. Cole, 128 Wn.2d 262, 287-88, 906 P.2d 925 (1995)). Here, there were sufficient 

background facts upon which to establish the unnamed citizen informant’s credibility. 

Schrader’s affidavit established that the unnamed citizen informant (1) provided his or her 

identity and contact information but wished to remain anonymous, (2) had no criminal history, 

(3) was not providing information for monetary gain or to work off criminal charges, and (4) was 

motivated to provide the information to police to see Gardner’s criminal activity stop.

This case is thus indistinguishable from Atchley, where Division Three of this court held:

[T]here was sufficient evidence that the credibility of the informant was 

established. The informant provided his or her name and other contact information 

to police. The informant received no compensation or other reward in return for 

the tip. A background check revealed nothing to give Deputy Rosenthal reason to 

suspect the information provided was false. The informant said his or her reason 

for coming forward was to assist law enforcement in ridding the community of 

suspected narcotic manufacturers and traffickers.

142 Wn. App. at 162-63. Contrary to Gardner’s claim on appeal, a track record of providing

reliable information by a citizen informant is not required to establish the informant’s credibility

“because a citizen who is an eyewitness or a victim lacks the opportunity to establish a record of 

previous reliability.” State v. Berlin, 46 Wn. App. 587, 590, 731 P.2d 548 (1987). Accordingly, 

we hold that the credibility prong of the Aguilar-Spinelli test has been met here.
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B. Basis of Knowledge

To establish the basis of knowledge prong of the Aguilar-Spinelli test, “the affiant ‘must 

explain how the informant claims to have come by the information’ and ‘the informant must 

declare that he [or she] personally has seen the facts asserted and is passing on firsthand 

information.’” Atchley, 142 Wn. App. at 163 (quoting Jackson, 102 Wn.2d at 437). These 

requirements have been met here.

Schrader’s affidavit established that the informant had been in Gardner’s suspected 

residence within the past 5 days and had personally seen “4 to 5 baggies of a white crystalline 

substance on the table” in Gardner’s bedroom. CP at 16. Schrader’s affidavit further established 

that the informant knew what methamphetamine looked like because he or she used to have 

friends that used methamphetamine and because he or she had attended drug and alcohol classes 

that discussed methamphetamine. Because both prongs of the Aguilar-Spinelli test have been 

satisfied, the trial court did not err by concluding that the search warrant was supported by 

probable cause. Gardner thus fails to demonstrate that the trial court erred by failing to suppress 

evidence obtained pursuant to the search warrant.

II. SAG ISSUES

In his SAG, Gardner asserts that the judge presiding over his suppression hearing made a 

disparaging remark toward him. But Gardner admits that this alleged remark was not 

documented on the record. Accordingly, this issue would be more appropriately raised in a 

personal restraint petition, and we do not further address it here. State v. McFarland, 127 Wn.2d

322, 335, 899 P.2d 1251 (1995).
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III. APPELLATE COSTS

Gardner has filed a supplemental brief opposing the award of appellate costs to the State 

in light of State v. Sinclair, 192 Wn. App. 380, 367 P.3d 612 (2016), asserting that he lacks the 

ability to pay such costs if imposed. The trial court entered an order of indigency for Gardner’s 

appeal on May 8, 2015. Under RAP 15.2(f), we presume that Gardner remains indigent 

throughout our review of his appeal unless the trial court finds that his financial situation has 

improved. We therefore elect to exercise our discretion under RCW 10.73.160(1) to waive the 

imposition of appellate costs.

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.

Worswick, J.

We concur:

Bjorgen, C.J.

Maxa, J.