### FILED April 21, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) ) ) ) ) ) ) ) No. 33778-2-111 Respondent,


### v. UNPUBLISHED OPINION KEVIN RAYEDGAR, Appellant. LAWRENCE-BERREY, A.C.J.

- Kevin Ray Edgarappeals his conviction for vehicular assault. He claimsthetrial court erred in concludingthatthe affidavit in support ofa warrant sufficiently establishedthe reliability ofan unnamed witness. We affirm. FACTS Onthe evening ofJanuary 10, 2015, a witness reported seeing KevinRayEdgar driving between 80 and 90 m.p.h. in a 55 m.p.h. zone before being involved in a single
car accident. The first police officerto arrive at the scene ofthe collision observedthat Mr. Edgar's carleftthe roadway and landed on its passenger side. Mr. Edgar andthe passengerwere transportedto a hospital.No. 33778-2-III State v. Edgar Trooper Charles Ferrell, a drug recognition expert, contacted Mr. Edgar atthe hospital. The trooper could smell an odor ofintoxicants coming from Mr. Edgar. Mr. Edgarwas uncooperative and belligerent with TrooperFerrell. TrooperFerrell compiled
an affidavit in support ofa warrantto obtain a blood sample from Mr. Edgarto test for evidence ofintoxication. The affidavitprovided in part: According to TrooperB. Pilkington #1202 who is at the scene ofthe collision, Mr. Edgar's vehicle leftthe roadway to the north where it drove up an embankmentbefore becoming airborne. The vehicle rolled comingto rest on the north shoulder. The vehicle was on its passenger side facing east. Witness stopped at the scene andpulled both parties from the vehicle. Witness advised female passenger and male driver. Witness advised female passengerwas yelling at male for driving too fast, being drunk and high, and almost killing her. TrooperPilkingtonwas the first Trooperto arrive onthe scene and contacted Mr. Edgar andthe passenger. TrooperPilkington advised Mr. Edgarwas belligerent and had an overwhelming odor ofalcohol coming from his person. TrooperPilkington advisedMr. Edgar's speechwas slurred. Dueto injuries, Trooper Pilkington was unable to perform any standardized field sobriety tests with Mr. Edgar. Clerk's Papers at 22. The trial court issued the warrant. Mr. Edgar filed a motionto suppress the blood test evidence, arguing the affidavit in support ofthe warrant failed to establishthe reliability ofthe unnamedwitness. The trial court denied the motion.
2No. 33778-2-111 State v. Edgar
ANALYSIS When reviewing the denial ofa motion to suppress, we determine whether substantial evidence supports the trial court's findings and, in tum, whetherthose findings support the conclusions oflaw. Mr. Edgar does not assign error to the trial court's findings, which we therefore treat as verities on appeal. State v. Ross, 141 Wn.2d 304, 309, 4 P.3d 130 (2000). Probable causeto issue a warrant is established ifthe supporting affidavit sets forth "facts sufficient for a reasonable personto conclude the defendantprobably is involved in criminal activity." State v. Huft, 106 Wn.2d 206, 209, 720 P.2d 838 (1986). The affidavit must be tested in a commonsense fashion rather than hypertechnically. State v. Jackson, 150 Wn.2d 251, 265, 76 P.3d 217 (2003). The existence ofprobable
cause is a legal question that a reviewing courtreviews de nova. State v. Chamberlin, 161 Wn.2d 30, 40, 162 P.3d 389 (2007). However, we afford great deference to the issuing magistrate's determination ofprobable cause. State v. Cord, 103 Wn.2d 361, 366, 693 P.2d 81 (1985). We apply the two-prongedAguilar-Spinellitest to assess the adequacy ofa search warrant affidavit. State v. Jackson, 102 Wn.2d 432, 446, 688 P.2d 136 (1984); Spinelli v. UnitedStates, 393 U.S. 410, 415-16, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969);Aguilar v.
3No. 33778-2-III State v. Edgar Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). Probable cause based
on an informant's information requires that an affidavit establish boththe informant's reliability and basis ofknowledge. Jackson, 102 Wn.2d at 445; State v. Smith, 110 Wn.2d 658, 664, 756 P.2d 722 (1988). Where one or both ofthese factors is weak, independent police investigation can supply corroboration. Jackson, 102 Wn.2d at 445. An unnamed citizen informant is considered reliable ifthe record establishes that the information is credible and the informant is without motive to falsify. State v. Cole, 128 Wn.2d 262, 287-88, 906 P.2d 925 (1995). Mr. Edgar argues that the superior court erred in determining that the affidavit provided sufficient facts to determine the reliability ofthe unnamed witness. We disagree. When dealing with unnamed citizen informants, courts are concerned with whether the informant is an "anonymous troublemaker" or a helpful citizen who wishes to retain his or her privacy. State v. Ibarra, 61 Wn. App. 695, 699-700, 812 P.2d 114 (1991). To guard against anonymous troublemaking, the affiant must provide enough additional information to support an inference that the informant is telling the truth. Id. at 700.

4No. 33778-2-III State v. Edgar Nothing in this case suggests anonymous troublemaking. Here, the record confirms that the unnamed witness was simply a concerned citizen with no motive to fabricate. The witness reported the collision to dispatch, remained at the scene, removed Mr. Edgar and the injured passenger from the cars, and stayed to provide a statementto law enforcement. TrooperFerrell's failure to state the witness's name in the affidavit appears to be an oversight, rather than based on the witness's desire to remain anonymous. In fact, the trial court concluded that TrooperFerrell's failure to name the witness in the affidavit did not renderthe witness anonymous because the witness was identified by law enforcement and present during TrooperPilkington's investigation. However, even ifwe depart from the trial court's analysis and treat the witness as anonymous, there was sufficient evidence in the affidavit to establishthe witness's reliability. The citizen came forth voluntarily, received no benefit from providing information, and the police investigation corroboratedthe witness's information. Giving deference to the trial court's determination, the affidavit contains sufficient facts to support a reasonable inference that the witness was credible and without motive to falsify.



### 5No. 33778-2-111 State v. Edgar
Affirmed. A majority ofthepanelhas determinedthis opinion will notbeprinted inthe Washington Appellate Reports, but itwill be filed for publicrecordpursuantto RCW 2.06.040.

WE CONCUR: 

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# ,ft· Siddoway, J.

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j Pennell, J. Lawrence-Berrey, A.C.J.

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