### FILED SEPTEMBER24,2015 In theOffice oftheClerkofCourt W A StateCourtofAppeals, Division III

INTHECOURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 

### 32174-6-111 Respondent, ) ) v. ) ) JEFFREY

### L. RIEKER, ) UNPUBLISHED OPINION ) Appellant ) FEARING, J.

- JeffreyRieker assigns numerous errors to his convictions for possession ofstolenproperty, possession ofa stolenmotorvehicle, unlawful manufacture ofmarijuana, unlawfulpossession ofa firearm, andbailjumping. We affirm the trial court's denial ofRieker's motionto suppress andholdthat sufficientevidence supports his convictions. Weremandthe case, however, for further review ofhis sentencing. FACTS OnOctober 

### 11, 2011, the Chelan County Sheriff's Office entertained a report of theft oftools from A& W Paving and RidgeviewPlumbing, two businesses housedinthe

same Cashmere building. SheriffDeputyBrentPattersonjourneyedtothebusinesses and created a list ofmissingtools.

### No. 321 74-6-II1 State v. Rieker


### On January 12,2012,the Chelan County Sheriffs Office executed a search warrant at a Peshastin shop owned by defendant Jeffrey Rieker. Material evidence gathered during the search led to the prosecution ofRieker. Lance Smith supplied information utilized by law enforcementto gain the warrant. That information now follows. On November 23,2011, Lance Smith ended two years ofemployment with Jeffrey Rieker because ofa wage dispute and Smith's disapproval ofRieker's lifestyle. Both Rieker and Smith were convicted felons, butRieker had not ended his life ofcrime. Riekerreceived and exchanged stolenproperty for drugs ormoney. Riekerhid stolen tools and otherproperty in the walls ofRieker's shop. Rieker employed an IS-inch space between the inner and outer walls ofhis shop, which space was accessedbyremoving
screws securing the inner wall panel. Rieker boastedto Smith about amassing stolen tools and paying a scant sum for the tools from local youth he commissioned to steal. Lance Smith saw an AK-47 assault rifle at least two times in Jeffrey Rieker's shop. Rieker requested that Smithtake the assault rifle because Rieker was a felon. Rieker worried that his neighbor might eye him with the rifle and report him to law enforcement. Smith refused to take custody ofthe rifle since Smith was also a convicted felon. Atthe time Rieker asked Smith to take the assault rifle, Rieker informed Smith that the former usually hid the firearm in a culvert on his shop property. A green fiberglass lid covered the culverttop, which emergedtwo feet from the ground. The 2No. 32174-6-111 State v. Rieker
culvert lay pastthejunction oftwo dirt roads that led to the shop, but in the woods fifty feet to the northwest ofthejuncture. On the last day ofhis employment in November 2011, Lance Smith observed

some tools for the first time in Jeffrey Rieker's shop. Smith sawallO-volt Mig welder,

a 220-volt industrial Mig welder, a plasma cutter, a Hilti diamond coring concrete motor,
a Wirsbo expander tool, a handheld Milwaukee band-saw with the words "Ridgeview Plumbing" written thereon, an orange power snakeplumbing tool, a Black & Decker drill, and security monitoring system with four cameras still contained in its original box. Clerk's Papers (CP) at 5. Smith questioned Rieker about the acquisition ofthe tools and Rieker supplied no response. Smith assumed the tools were stolen. In late November 2011, Lance Smith encountered Tanner Schwind in Leavenworth. Schwind was close friends with Smith's stepson. On previous occasions, Schwind boasted to Smith ofcriminal acts the former performed on behalfofJeffrey Rieker. In late November, Schwind crowed to Smith about filling a "shopping list" of tools Rieker requested him to steal. CP at 5. Schwind claimed he stole tools, now housed in Rieker's shop, from aplumbing business, in Cashmere. Schwind found humor in fulfilling Rieker's wish list at one location. Lance Smith telephoned Robert McLeod, owner ofRidgeview Plumbing. Smith asked McLeod ifthe latter had been burgled, and Smith disclosed that he might know the thief. McLeod encouraged Smith to notify law enforcement. 3No. 32 1 74-6-III State v. Rieker
In January 2012, Lance Smith reported the misconduct ofJeffrey Rieker to the Chelan County Sheriffs Office. On January 3,2012, SheriffDetective Mitch Matheson conducted and recorded an interview ofLance Smith. Smith related the above information to Detective Matheson. Smith added that the tools likely remain in the possession ofRieker. Smith brought with him to the interview the power snake plumbing tool. The plumbing tool had a sticker affixed to it. Smith explained that Rieker gave him the tool because it did not work and Rieker hoped Smith would repair the tool. After interviewing Lance Smith on January 3, Detective Mitch Matheson contacted Robert McLeod, owner ofRidgeview Plumbing. Matheson described the tools that Lance Smith reportedly saw at Jeffrey Rieker's shop, and McLeod identified the tools as being stolen from his business. McLeod told Matheson that he did notknow Rieker or Smith. McLeod styled the Wirsbo expander and diamond coring motor as rare and expensive plumbing tools. McLeod identified the power snake tool as his based on the white sticker it bore. McLeod told Detective Matheson that he previously received a call from Smith about the stolen goods. Detective Mitch Matheson deposited Jeffrey Rieker's information in an affidavit supporting a warrant to search Jeffrey Rieker's property. Matheson noted that Tanner Schwind was incarcerated in Kittitas County Jail as ofJanuary 2012. Chelan County Judge John Bridges signed the warrant on January 5, 2012. The warrant authorized law enforcement to search Jeffrey Rieker's cabin and shop, offHighway 97 in Peshastin, for 4No. 32174-6-111 State v. Rieker
items reported stolen by A&W Paving and Ridgeway Plumbing. OnJanuary 12, 2012, Chelan County Sheriffs Office Detective MitchMatheson and members ofthe Chelan County Regional SWATteam executed the search warrant. 

### In searching Jeffrey Rieker's property, the team recovered: (1) nearly all the tools reported stolen by Ridgeview Plumbing and A&W Paving, worth approximately $20,000; (2) a Ruger 10-22 .22 caliberrifle and a Titan .25 caliber semi-automatichandgun; (3) a white 2000 GMC S 1 0 pickup, which had beenreported stolen from Leavenworth two days prior; (4) equipment for growing marijuana and making hashish; and (5) methamphetamine. After discovering evidence ofthe marijuana grow operation in Rieker's shop, an officer ofthe Columbia River Drug Task Force requested and obtained

an additional search warrant to search Rieker's property for evidence ofdrug contraband. The task force executed the second warrant onJanuary 12. After being arrested, Jeffrey Rieker waived his Miranda rights and spoke with Detective Mitch Matheson. Rieker admitted to receiving the tools from Tanner Schwind and maintained that he paid Schwind $2,000 for the tools. Rieker told Matheson that Schwind insisted that he obtained the tools from someone as payment for a debt. When questioned about the GMC S 1 0, Rieker stated that he purchased the pickup for $200. He conceded that the truck mightbe worth $700 to $1,000 wholesale, or $2,000 retail. Detective Matheson later determined the actual retail value ofthe truckto be $3,500 to $4,000. 

### 5No. 32174-6-111 State 

### v. Rieker
PROCEDURE The State ofWashington charged Jeffrey Riekerwith possessing stolenproperty in the first degree, possession ofa stolen vehicle, unlawful manufacture ofmarijuana, unlawful possession ofa firearm in the second degree, and bailjumping. Rieker moved to suppress all evidence recovered inthe searches ofhis property and to dismiss all charges flowing from those searches. Rieker also moved the court for aFranks v. Delaware hearing, while arguingthatDetective Mitch Matheson's probable cause affidavit omitted material information about crimes ofdishonesty in Lance Smith's criminal record. Rieker argued that Matheson intentionally omitted information of Smith's unhappiness with Riekerbecause Rieker interfered with Smith's visitationwith his child. Finally, Rieker contendedthat DetectiveMatheson intentionally excluded information showingthat Tanner Schwind, to whom Smith claimedto have spoken in November 2011, had been incarcerated in Kittitas County Jail since October29,2011. The trial court denied Jeffrey Rieker's motion to suppress. Thetrial court entered the following findings offact, which Rieker challenges on appeal: 1. In regard to the staleness issue, tools are less transitory in nature and are not easily discarded orconsumed as comparedto a controlled substance. Looking at the nature ofthe criminal activity, and the character ofthe evidencetobe seized in this case, tools are not typically something that disappear, are consumed, orthrown away. Further, the witness, Mr. Smith gave information to thepolice about being on the defendant's property on several occasions so he would have at least some factual basis for saying that the defendant is not oneto get rid oftools. When Mr. Smith came in to speak with thepolice he had in his possession one ofthe tools 

### 6No. 32174-6-III State 

### v. Rieker
thathe statedwas giventohim by the defendant. This tool was confinned as being one ofthe tools that had beenreported as stolen. In addition, Mr. Smith specifically relayed infonnation about the defendant having a hiding placebetweenthe walls wherehe would store stolen tools. This would factually supportthe inference that the defendant would still have the tools in question, ratherthan discard them. 4. In this case it was disclosed that Mr. Smith did have a felony history. The fact that specific history wasn't cited does not showthat its omissionwas knowing and intentional, or done with reckless disregard for the truth. In regard tothe specific crimes of"Larceny"that Mr. Smithhad on his record, these were two fairly old crimes, one being a misdemeanor and one a felony from out ofstate, occurring overten years ago. This court does not see how it would have materially changedJudge Bridges['] assessment ofwhetherthere was probable cause for the issuance ofthe searchwarrant. 5. Withrespectto the dispute betweenMr. Smith and the defendant, no evidencewas submittedto showthat the law enforcement officer even knew ofthe dispute, or thatthe dispute was ofa criminal nature, which it was not. There was no showingthatthe officer, by not asking additional questions ofMr. Smith to acquire that dispute infonnation, was recklessly disregarding the truth. 6. In regard to the issue aboutMr. Schwindpossiblybeing injail in Kittitas County onthe days thatMr. Smithclaimedto have spoken with him in Chelan County about the defendant, it appears that the officer could have been negligent in not confinning what days Mr. Schwind was in and out of jail. However, this does not appear to be an issue ofthe officer actingwith reckless disregard for the truth or knowingly and intentionally. 7. Ifwe are to assume that the infonnation about Mr. Schwind should have beenpart ofthe search warrant, then the question would be whetherthat additional infonnationwould have significantly changed the finding ofprobable causeby Judge Bridges. When looking at the totality of the specific infonnationthat was providedby Mr. Smith, which was corroborated by otherreliable sources, such as producing a tool stolen from the alleged victim, this court does not believe it would have changedthe detenninationthattherewas probable cause. CP at 165-67.

7No. 32174-6-111 State v. Rieker Jeffrey Rieker waived his right to ajury trial and proceeded to a stipulated facts bench trial. The trial court found Rieker guilty on all five charges. The State requested that Rieker remain out ofcustody pending sentencing, as the bail bondsperson agreed to extend Rieker's bail for that period oftime. The trial court set Rieker's sentencing hearing for June 5, 2013. On June 5, 2013, Jeffrey Rieker failed to appear at his sentencing hearing. The State, under a new cause number, charged Rieker with bailjumping. On January 8, 2014, Rieker finally appeared in court for sentencing. The trial court continued sentencing for

one day in light ofaplea agreement Rieker and the State were negotiating regarding the

new bailjumping charge. On January 9, 2014, the trial court signed and entered findings offact and conclusions oflaw for the CrR 3.6 hearing and the stipulated facts bench trial. The trial court also sentenced Jeffrey Rieker for the five crimes charged in 2012. The State informed the trial court ofan agreement reached with Rieker, in which Rieker would
serve a sixty-month sentence for the 2012 theft and drug charges and receive a fifty-fivemonth Drug Offender Sentencing Alternative (DOSA) sentence on the 2013 bailjumping charge, in exchange for pleading gUilty to that charge. The trial court asked Jeffrey Rieker's defense counsel for a response to the State's recommendation. Counsel stated: "Well, Your Honor, the agreement in this case is the high end and the maximum, which is 60 months, based on our global agreement. So 8No. 32174-6-111 State v. Rieker
there's not much 1can say. It's an agreement, so I'd ask the Court to impose the high end in this case." Verbatim Report ofProceedings (VRP) (Jan. 9, 2014) at 21-22. The trial court also asked Rieker ifhe wished to speak. Rieker replied "DOSA would probably be helpful." VRP (Jan. 9, 2014) at 22. The trial court engagedJeffrey Rieker in a colloquy about his recent descent into criminality, as Riekerhad not committed a crime since 1993: THE COURT: So what-I mean, why is that? What - 1mean, no offense, you lookrather disheveled. Maybethat's due to staying in thejail, but you lookedpretty disheveled when you came in from being on the lam. You went from a person who was trying to be involved with your kid to a person with multiple felony convictions looking at a very long time in prIson.THEDEFENDANT: Drugs. THE COURT: Marijuana or other drugs? THE DEFENDANT: Not marijuana. THE COURT: Methamphetamine? THE DEFENDANT: (Nods head.) THE COURT: When did you start using meth? THE DEFENDANT: Three, four years ago. THE COURT: How long? THEDEFENDANT: Three or four. THE COURT: Andhow did that happen? How did it start? THEDEFENDANT: You mean, like, did somebody offerme some? THE COURT: Well, yeah, 1mean, seriously, because 1don't think there'sprobably anybody else in this room who's ever used methamphetamine. THE DEFENDANT: Somebody offered me some. THE COURT: And you said yes. THEDEFENDANT: Yeah. THE COURT: All right. Okay. Well, we'll talk more about the DOSA on the next case ...
9No. 32174-6-111 State v. Rieker
VRP (Jan. 9, 2014) at 23-24. The trial court accepted the State'srecommendation and sentenced Jeffrey Rieker to sixty months ofconfinement for the 2012 charges. The trial court also ordered Rieker to undergo a chemical dependency evaluation and to follow all recommended treatment. Nevertheless, the trial court did not check the box on thejudgmentand sentence finding that Rieker had a "chemical dependency" that contributed to his criminal offenses. The trial court ordered Rieker to submitto random urinalysis at his own expense and to refrain from consuming alcohol as part ofcommunity custody conditions. Finally, the trial court orderedthat Jeffrey Riekerpay $1,850 in legal financial obligations (LFOs). Therecord does not showthatthetrial court inquired into Rieker's ability to pay the obligations. After sentencingJeffrey Rieker, the trial court accepted his guilty pleato
one count ofbailjumpingin 2013, and sentenced him to fifty-five months total confinement, consecutiveto the sixty months for Rieker's 2012 crimes, with halfofthe 2013 sentencetobe served in DOSA community custody. LAW AND ANALYSIS Jeffrey Rieker contends on appeal that: (1) the warrant issued to search his property lackedprobable cause, (2) the trial courterred in denying his request for a Franks hearing, (3) the trial court exceeded its authority in imposing conditions of community custody not authorizedby statute, and (4) the trial court erred in requiring Riekerto pay LFOs without considering his financial resources and ability to pay. We 10

### No. 32I74-6-III State v. Rieker


### hold thatprobable cause supported the search warrant, and thus we affirm Rieker's convictions. We affirm the trial court's community custody conditions. We vacate and remand for further hearing some ofthe legal financial obligations imposed on Rieker. Issue 

### 1: Whetherprobable cause substantiatedthe search warrant for Jeffrey Rieker'sproperty? Answer 

### 1: Yes.



### Jeffrey Rieker first contends that the trial court erred in denying his motion to suppress evidence obtained in the search ofhis property. Rieker assigns error to findings offact 1,4,5,6,and 7 in the trial court's orderdenying his motion. Rieker argues that the information included in Detective Matheson's affidavit ofprobable cause failed to establishLance Smith's veracity and basis ofknowledge and that law enforcement's efforts to corroborate Smith's information did not remedy the affidavit's deficiencies. The State ofWashington responds that probable cause supported the issuance ofa search warrant because Smith was a named informant who provided detailed information about stolenproperty he personally observed in the place to be searched. Challenged findings entered after a suppression hearing that are supported by substantial evidence are binding, and, when the findings are unchallenged, they are verities on appeal. State 

### v. O'Neill, 

### 148 Wn.2d 564, 571, 62 P.3d 489 (2003). Evidence is substantial ifit persuades a fair-minded, rational person ofthe declaredpremise. Merriman v. Cokeley, 

### 168 Wn.2d 627, 631, 230 P.3d 162 (2010). When the parties 11No. 32174-6-111 State v. Rieker present conflicting evidence, appeals courts defer to the trial court. State v. Cord, 103 Wn.2d 361,367,693 P.2d 81 (1985). We address each ofJeffrey Rieker's challenges to the trial court's findings offact. Substantial evidence supports finding offact 1. As the trial court correctly found, Lance Smithprovided detailed and critical evidence supporting an inference that Rieker still possessed the stolen tools. Smith's information included the nontransitory nature ofthe tools, as opposed to the transitory nature ofdrugs; Rieker building a secret panel in which to hide the tools; Smith's experience working on Rieker's property; and Smith's possession ofone ofthe tools confirmed by Robert McLeod as stolen. Smith's meticulous information sufficed to persuade a fair-minded, rational person that Smith told the truth and Rieker's property would retain the tools. Smith's possession ofone ofthe stolen tools alone was persuasive. Based on finding offact 1, the court did not err in finding that probable cause supported issuance ofa search warrant for Jeffrey Rieker's property. This court reviews

a trial court's decision to issue a search warrant for abuse ofdiscretion, giving great deference to the issuingjudge. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008). At the suppression hearing the trial court acts in an appellate-like capacity; its review, like ours, is limited to the four corners ofthe affidavit supporting probable cause. Neth, 165 Wn.2d at 182. Although we defer to the magistrate's determination, the trial court's assessment ofprobable cause is a legal conclusion we review de novo. Neth, 165 Wn.2d 12No. 32174-6-111 State v. Rieker

at 182. The trial court must determine ifthe warrant is valid by considering only the information brought to the attention ofthe issuingjudge or magistrate at the time the warrant was requested. State v. Garcia-Salgado, 170 Wn.2d 176, 187,240 P.3d 153 (2010). The Fourth Amendment and article 

### I, section 7 ofWashington's Constitution require that a search warrant issue only on a determination ofprobable cause by a neutral magistrate. State v. Myers, 117 Wn.2d 332,337, 815 P.3d 761 (1991). Probable cause exists when facts and circumstances suffice to establish a reasonable inference thatthe defendant is involved in criminal activity and that evidence ofthe criminal activity can be found at the place to be searched. State v. Maddox, 152 Wn.2d 499, 505,98 P.3d 1199 (2004); State v. Thein, 138 Wn.2d 133, 140,977 P.2d 582 (1999). While the affidavit need not make a prima facie showing ofcriminal activity, it must show criminal activity is at least probable. State v. Ellis, 178 Wn. App. 801, 805-06,327 P.3d 1247, review denied, 180 Wn.2d 1020,353 P.3d 641 (2014). Washington courts utilize theAguilar/Spinellitest to evaluate whether an informant's tip establishes probable cause for a search warrant. State v. Jackson, 102 Wn.2d 432,443,688 P.2d 136 (1984) (citing Spinelli v. UnitedStates, 393 U.S. 410,89 S. Ct. 584,21 L. Ed. 2d 637 (1969);Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964)). An informant's tip is sufficient to establishprobable cause when the officer's affidavit sets forth (1) the underlying circumstances from which the informant 13No. 32174-6-111 State v. Rieker
drew his conclusions, such that a magistrate can independently evaluate the informant's "basis ofknowledge"; and (2) the underlying circumstances from which the officer determined the "veracity" ofthe informant or information. Jackson, 102 Wn.2d at 435­ 36. On appeal, Jeffrey Rieker challenges Detective Mitch Matheson'sprobable cause affidavit on both grounds oftheAguilar/Spinellitest. Rieker argues thatthe affidavit fails to detail Smith's basis ofknowledge because the affidavit only contains Smith's personal beliefthat the tools on Rieker's property were stolen. Interestingly, Rieker also relies on his vague answer to Smith about the origin ofthe tools to illustrate Smith lacked

abasis to claim tools were stolen. Jeffrey Rieker misrepresents the contents ofthe probable cause affidavit. He ignores the many percipient observations supplied by Lance Smith in addition to Smith's beliefthat the subjecttools were stolen. Observations are sufficientto establish an informant's basis ofknowledge when the informantprovides enough firsthand factual information for either an affiant officer or a magistrate to independently determine whether a crime has likely been committed. See State v. Ibarra, 61 Wn. App. 695, 702, 812 P.2d 114 (1991). Smith's wealth ofinformation includedthe presence ofdistinctive markings on the tools, Rieker's inability to clarifY the origin ofthe tools, Smith's observation ofa hidden panel in Rieker's shop, and Smith'spossession ofone ofthe purloinedtools. Rieker conveniently forgets that Detective Mitch Matheson confirmed 14

### No. 32174-6-111 State 

### v. Rieker 

### that, based on distinctive markings, the tool in Smith's possession belonged to Ridgeview Plumbing. Jeffrey Rieker also contends that the probable cause affidavit does not establish the veracity ofLance Smith as an informant. Rieker maintains that the history ofconflict between Smith and him negates Smith's reliability as an informant because ofSmith's motive to falsify information as a means ofrevenge on Rieker. Relatedly, Rieker challenges the sufficiency ofthe trial court's finding offact 5that Detective Matheson
was unaware ofa connict between Rieker and Smith. Substantial evidence supportedthe trial court's determination that MitchMatheson
was unaware ofa dispute between Lance Smith and Jeffrey Rieker regarding Smith's visitation with his child. Rieker emphasizes an affidavit submitted by his attorney, which affidavit declares that DetectiveMatheson heard about this particular conflict. Nevertheless, the affidavit does not disclose when Matheson told the attorney when the former learned ofthis conflict between the two. Thetrial court heard no evidence indicatingthat Detective Matheson knew about this conflict when he prepared the probable cause affidavit. Accordingly, the trial court did not err in making its finding of fact 5. Lance Smith did not seek to hide as a confidential informant. Smith's status as a named citizen informant, coupled with the detailed information he providedto law enforcement, establishes his reliability as an informant underAguilar/Spinelli. 

### When the 15No. 32174-6-111 State v. Rieker
informant is an ordinary citizen, as opposed to the criminal or professional informant, and his identity is revealed to the issuing magistrate, intrinsic indicia ofthe informant's reliability may be found in his detailed description ofthe underlying circumstances ofthe crime observed or about which he had knowledge. State v. Northness, 20 Wn. App. 551, 557,582 P.2d 546 (1978); State v. Berlin, 46 Wn. App. 587, 590, 731 P.2d 548 (1987). The "reliability"prong is "relaxed" when a citizen informant furnishes information, so long as that information supports his basis ofknowledge and sustains an inference that he is telling the truth. State v. Franklin, 49 Wn. App. 106, 109, 741 P.2d 83 (1987). Additional factors establish the credibility ofLance Smith. Smith approached both Robert McLeod and law enforcement without concealing his identity. Although the probable cause affidavit does not mention the visitation conflict between Rieker and Smith, the affidavit discloses a wage dispute between the two, a dispute arguably as valid

a reason to falsify information. In short, the trial court did not err in concluding that Detective Matheson's affidavit establishedprobable cause for a search warrant. Issue 

### 2: Whether the trial court erredin denyingJeffreyRieker's motion/ora Franks hearing? Answer 

### 2: No. Jeffrey Rieker next contends that the trial court erred in denying him a hearing underFranks v. Delaware, 438 U.S. 154, 155-56,98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). Rieker sought the Franks hearing to determine whether Detective Matheson 16

### No. 321 74-6-III State v. Rieker 

### knowingly and intentionally, orwith reckless disregard for the truth, included false statements by Lance Smith or omitted material information from the affidavit supporting probable cause. Rieker argues that Detective Matheson'srecording ofthe interviewwith Smith does not contain all statements attributed to Smith that Matheson included in the probable cause affidavit. Rieker emphasizes this inconsistency and the omissions of Smith's complete criminal history, all past conflicts between Smith and Rieker, and the dates ofTanner Schwind's incarceration from the affidavit. Relatedly, he assigns errorto thetrial court's findings offact 4, 6, and 7. The United States Supreme Courtwrote in Franks 

### v. Delaware: 

### where the defendant makes a substantial preliminary showingthat a false statementknowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warranraffidavit, and ifthe allegedly false statement is necessary to the finding ofprobable cause, the Fourth Amendmentrequires that a hearing be held at the defendant's request. In the eventthat atthathearing the allegation ofperjury or reckless disregard is established by the defendant by a preponderance ofthe evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficientto establish probable cause, the search warrant must be voided and the fruits ofthe search excluded to the same extent as ifprobable cause was lacking on the face ofthe affidavit. 438 U.S. at 155-56. Under Washington law, the defendant may also garner a Franks 

### hearingwhen an affiant omitted material information from a probable cause affidavit. State v. Cord, 

### 103 Wn.2d at 367. A showing ofmere negligence orinadvertence is insufficient. State v. Chenoweth, 

### 160 Wn.2d 454, 462, 158 P.3d 595 (2007). Allegations ofan affiant's impropriety must be accompanied by an offer ofproof. State v. Garrison, 

### 17

### No. 32174-6-III State 

### v. Rieker


### 118 Wn.2d 870,872,827 P.2d 1388 (1992). Presenting the content ofthe omission as the offer ofproofofreckless disregard is insufficient. Garrison, 

### 118 Wn.2d at 873. Substantial evidence supports the trial court's findings offact 4,6, and 7. These findings, in tum, supportthe trial court's conclusionthat Rieker was not entitled to a Franks 

### hearing in this case. Thetrial court correctly found that the omission ofLance Smith's old, out-of-state convictions for theft crimes did not materially change whether Judge Bridges would find probable cause for a search warrantto issue. The lack of specific information as to Smith's entire criminal history does not entitle Riekerto a Franks 

### hearing because he cannot meet his initial burden ofshowing that the omission
was made knowingly, intentionally, orwithreckless disregard for the truth. Moreover, Detective Matheson informed Judge Bridges that Smith was a convicted felon and that his mostrecent brush with the law concerned his failure to appear at a court date. Rieker makes no offer ofproofto supporthis allegation that Detective Matheson intentionally or recklessly omittedthe rest ofSmith's criminal history. The trial courtcorrectly found in findings offact 6 and 7 that Detective Matheson
was negligent in failing to confirm Tanner Schwind's dates ofincarceration. Nevertheless, this negligence, in light ofother information provided by Lance Smith and corroborated by MitchMatheson, would have not changed Judge Bridges initial determination ofprobable cause. Schwind's actual dates ofincarceration contradicted Smith's account ofthe timing ofhis conversation with Schwind regarding the stolen tools 18No. 32174-6-III State 

### v. Rieker

on Jeffrey Rieker's property. Rieker argues thatDetective Matheson's failure to confinn whether Schwind was injail on the day Smith allegedly spoke to him amounts to a reckless disregard for the truth, butthe failure is also consistent with mere negligence. As noted above, negligence is insufficient to meet a defendant's burden ofshowing intentional or reckless omission ofmaterial facts. Chenoweth, 160 Wn.2d at 462. Jeffrey Rieker may not rely solely on the contentofan omission as an offer of proof. The accused must showthatthe omitted infonnation would have controlled the magistrate's initial finding ofprobable cause. Garrison, 118 Wn.2d at 874-75. Smith's inconsistent story about speaking with Schwind might hurt his credibility, but it would nothave changed Judge Bridges' determination in light ofthe significant amount of untainted, corroborative evidence also included in the affidavit. Issue 

### 3: Whether the trialcourt unlawfully imposedconditions of community custodyprohibitingJeffrey Rieker from consumingalcohol, barring him fromfrequenting places whoseprincipalsource of income is alcoholsales, andrequiringhim to submit to random urinalysis orBAC(bloodalcohol concentration) tests athis own expense? Answer 

### 3: No, as to theprohibition against alcoholandthe requirement of urinalysis. Yes, as tofrequenting taverns andundergoing bloodalcohol tests. Jeffrey Rieker next contends that the trial court erred in imposing community custody conditions not authorized by statute. He argues that conditions thatpreclude him from consuming alcohol, that ban him from taverns, and thatrequire him to submitto 19No. 32174-6-111 State v. Rieker
random urinalysis or blood alcohol concentration tests at his own expense are not, as required by RCW 9.94A.505, related to his crimes. The State contends that Rieker agreed to these community custody conditions as part ofan agreement regarding his sentencing on the 2012 charges and his guilty plea for the 2013 charge ofbailjumping. No copy ofaplea agreement exists in the record. The verbatim report of proceedings includes discussion ofan agreement as to sentencing and the trial court's acceptance ofJeffrey Rieker's guilty plea to the 2013 bailjumping. The State mentioned community custody conditions in its sentencingrecommendation to the trial court, but no copy ofa guilty plea or other agreement confirms that Rieker expressly agreed to the community custody conditions he now appeals. Thus, wereject the State'sreliance on any agreement. At his sentencing, Jeffrey Rieker did not object to the imposition ofany community custody conditions. Nevertheless, a defendant may challenge an erroneously imposed sentence for the first time on appeal. State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008); State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999). This court reviews crime-related community custody conditions for an abuse ofdiscretion. State v. Brooks, 142 Wn. App. 842, 850, 176 P.3d 549 (2008). RCW 9.94A.505(8) prescribes: As apart ofany sentence, the court may impose and enforce crimerelated prohibitions and affirmative conditions as provided in this chapter.

20No. 32174-6-111 State v. Rieker

In tum, RCW 9.94A.030(10) reads: "Crime-relatedprohibition" means an order ofa courtprohibiting conduct thatdirectly relates to the circumstances of the crime for which the offenderhas been convicted, and shall not be construed to mean orders directing an offender affirmatively to participate in rehabilitative programs orto otherwise perform affirmative conduct.
... (Emphasis added.) A trial court may order an offender to refrain from consuming alcohol as partof any term ofcommunity custody. RCW 9.94A.703(3)(e); State v. Jones, 118 Wn. App. 199,207, 76 P.3d 258 (2003). A trial courtmay further require an offender to participate in a rehabilitative program or otherwiseperform affirmative conduct reasonably related to the circumstances ofthe offense, the offender's risk ofreoffending, orthe safety ofthe community. RCW 9.94A.703(3)(d). Nevertheless, before a trial court may order attendance at a rehabilitativeprogram, evidence must show that alcohol contributed to the offense. Jones, 118 Wn. App. at 207-08. In State 

### v. Jones, this court struck community custody conditions requiring Everett Jones, who pled guilty to first degree burglary, to participate in alcohol and mental health treatment and counseling. This courtheld that conditions imposed as "rehabilitative programs" or "affirmative conduct," under RCW 9.94A.703(3)(d), must be supported by evidence in the record or found by the trial court to be related to the underlying offense. The courtreasoned that allowing courts to order a rehabilitationprogram, regardless of theprogram'srelationship to the underlying offense, would render superfluous former 21No. 32174-6-111 State 

### v. Rieker
RCW 9.94A.700(5)(c), which, like RCW 9.94A.505(8), provided thattrial courts could order an offender to "participate in crime-related treatment or counseling services." Jones, 118 Wn. App. at 207 (internal quotation marks omitted). At the same time, this courtupheld a condition prohibitingJones from consuming alcohol, holdingthat, consistent with the plain language ofRCW 9.94A.703(3)(e), a trial court could impose the prohibition regardless ofwhether alcohol contributed to the commission ofthe underlying crime. UnderState v. Jones, Jeffrey Rieker's trial court did not abuse its discretion in ordering Rieker to refrain from consuming alcohol as a community custody condition. Nevertheless, the trial court exceeded its statutory sentencing authority byrequiring Rieker to submit to random urinalysis and blood testing, and prohibitinghim from frequenting any tavern orcocktail lounge. During a colloquy with the trial court, Jeffrey Rieker conceded that his crimes resulted from his abuse ofmethamphetamine use. Rieker agreed that a DOSA sentence "wouldprobably be helpful" to his rehabilitation. VRP (Jan. 9,2014) at 22. This evidence supports the trial court's imposition ofrehabilitative programs such as undergoing random urinalysis. No evidence suggested that Jeffrey Rieker consumed alcohol orthat alcohol led to any ofhis crimes. Thus, the trial court exceeded its sentencing authority when it prohibited Rieker from frequenting taverns and bars and requiringhim to submitto blood alcohol concentrationtests. 22No. 32174-6-II1 State 

### v. Rieker

Issue 

### 4: Whether the trialcourt unlawfully orderedJeffreyRieker to undergo a chemical treatment evaluation andsubmit to anyrecommendedtreatment? Answer 

### 4: No. Jeffrey Rieker also argues that the trial court exceeded its sentencing authority by requiring him to undergo a chemical dependency evaluation and submit to any recommended treatment. We disagree. The controlling statute is RCW 9.94A.607(1), a section ofWashington's Sentencing Reform Act (SRA) of 1981 ch. 9.94A RCW. The statute reads: Where the court finds that the offenderhas a chemicaldependency that has contributedto his or her offonse, the courtmay, as a condition of the sentence and subjectto available resources, orderthe offenderto participate in rehabilitativeprograms or otherwise to perform affirmative conduct reasonably related to the circumstances ofthe crime for which the offenderhas been convicted and reasonably necessary orbeneficial to the offender and the community in rehabilitating the offender. (Emphasis added.) This statute authorizes the trial court to order an offender to obtain a chemical dependency evaluation and to comply with recommended treatment only ifit finds that the offender has a chemical dependency that contributed to his or her offense. State v. Warnock, 174 Wn. App. 608, 612, 299 P.3d 1173 (2013). Jeffrey Rieker admitted to use ofmethamphetamine for at least three years. Rieker informed the trial courtthat abuse ofmethamphetamine led to his return to crime. The trial court imposed a DOSA sentence that is warranted only in the event ofa chemical dependency. Rieker agrees a DOSA sentencewas warranted. Therefore, we 23No. 32174-6-II1 State 

### v. Rieker
affinn the community custody condition ofa chemical dependency evaluation and any recommended treatment. Issue 

### 5: Whether the trial court improperly imposedlegal financial obligations withoutconsideringJeffreyRieker's financial resources under RCW10.01.160(3)? Answer

### 5: Yes, as to discretionary legal financial obligations. Jeffrey Rieker contends that the trial court improperly required him to pay legal financial obligations without considering his financial resources under RCW 10.01.160(3). He challenges a $450 fee for a court appointed attorney, $200 in court costs, a $500 fee to the drug enforcement fund ofthe ColumbiaRiverDrugTask Force, and a $100 crime lab fee. Rieker does not challengethe $500 victim penalty assessment
or $100 DNA (deoxyribonucleic acid) collection fee, as neitherrequires courts to consider a defendant's ability to pay. State v. Kustler, 175 Wn. App. 420, 424, 306 P.3d 1022 (2013). Jeffrey Rieker did not object to the challenged obligations beforethe trial court. He argues thathe may still assert error for the first time on appeal under RAP 2.5. The State again argues thatRieker's claimed error is precluded by his plea agreement and the invited error doctrine. We exercise our discretion in reaching the issue and remand for the trial court to properly detennine whether Riekerhas, or will have, the ability to pay the legal financial obligations. Courts may impose legal financial obligations ifa defendant has orwill have the 24

### No. 32174-6-III 

### State 

### v. Rieker
financial ability to pay them. RCW 10.01.160; RCW 9.94A.760(2); 

### State v. 

### Curry, 118 Wn.2d 911,914-16,829 P.2d 166 (1992). RCW 10.01.160(3)proscribes: The court shall not order a defendant to pay costs unless the defendant is or will be able topay them. In determining the amount and method ofpayment ofcosts, the court shall take account ofthe financial resources ofthe defendant and the nature ofthe burden thatpayment of costs will impose. 

### InState 

### v. Blazina, 182 Wn.2d 827,838,344 PJd 680 (2015), the Washington Supreme Court clarifiedthat RCW 10.01.160(3) requires the trial court "do more than sign ajudgment and sentence with boilerplate language stating that it engaged in the required inquiry." Rather, the "record mustreflect that the trial court made an individualized inquiry into the defendant's current and future ability topay." 

### Blazina, 182 Wn.2d at 838. This inquiry includes evaluating a defendant's financial resources, incarceration, and otherdebts, including restitution. 

### Blazina, 182 Wn.2d at 838-39. We first decide whetherto address this assignment oferror when Jeffrey Rieker did not object to the imposition offinancial obligations before the lower court. RAP 2.5(a) provides, in relevantpart: "The appellate court may refuse to review any claim of
errorwhich was not raised in the trial court." Our high court clarified: "Adefendant who makes no objectionto the imposition ofdiscretionary LFOs at sentencing is not automatically entitledto review." 

### Blazina, 182 Wn.2d at 832 (footnote omitted). "Each appellate court must make its own decision to accept discretionary review [ofclaimed LFO errors not appealed as a matter ofright]." 

### State v. 

### Blazina, 182 Wn.2d at 835. 25No. 32174-6-III State 

### v. Rieker Nevertheless, the Blazina court also clarified that a challenge to the trial court's entry of

an LFO order under RCW 10.01.160(3) is nevertheless ripe forjudicial determination. Blazina, 182 Wn.2d at 832 n.l. TheBlazina court noted reasons for review oflegal financial obligations before collection activities. Ajudgmentfor legal financial obligations accrues interest at a high rate, employment and housing background checks show an active record in the superior court as a result ofthe obligations, andthejudgment for the financial obligations impairs the obligor's credit. In short, pending legal financial obligations increase the difficulty of

a defendant inreentering society. Therefore, we follow the spirit andpurpose ofboth RCW 10.01.160 andBlazina by reviewing the record here to determine whether the trial court engaged in an on-the-record inquiry as to Jeffrey Rieker's ability to pay financial obligations. Therecord shows no inquiry into Jeffrey Rieker'spast or future financial capability. Rieker is a currently incarcerated indigent defendant, both characteristics about which the Supreme Court instructed trial courts to include in their inquiry under RCW 10.01.160(3). Blazina, 182 Wn.2d at 838-39. Weremand thejudgment and sentence to the trial court, with instructions to reset Rieker's legal financial obligations after conductingthe required inquiry into his present and future ability to pay. CONCLUSIONS We affirm Jeffrey Rieker's many convictions. We remand with instructions to 26No. 32l74-6-II1 State 

### v. Rieker
strike community custody conditions prohibiting Jeffrey Rieker from visiting bars or taverns and demanding that he submitto random BAC testing. We also remand with instructions for the trial court to reestablish legal financial obligations after conducting the required inquiry into Rieker's past and future ability to pay. 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.

27No. 32174-6-II1 LAWRENCE-BERREY, J. (concurring) - I write separately to express whyreview ofan unpreserved discretionary legal financial obligation (LFO) argument is sometimes appropriate. RCW 10.01.160(1) states, "The court mayrequire a defendantto pay costs." RCW 10.01.160(2) describes what items can be assessed as costs and sets forth limitations on the financial amounts ofcertain costs. RCW 10.01.160(3)provides: The court shall not order a defendanttopay costs unless the defendant is or will be able to paythem. In determining the amount and method of payment ofcosts, the court shall take account ofthe financial resources of the defendant and the nature ofthe burden thatpayment ofcosts will Impose. The statute does not require the defendant to prove anything. Rather, the statute prevents the trial court from imposing costs, sometimes referred to as discretionary LFOs, unless the defendant is or will be able to pay them. This placestheburden ofevidentiary production on the State. Some trial courts routinely order defendants to pay thousands ofdollars of discretionary LFOs despite the absence ofevidencethat the defendant has orwill have the ability to pay those costs. Our Court ofAppeals has previously avoided correcting these obvious errors, asserting that defendants waived the issue. The purportedrationale for finding waiver is that a defendant has a great incentive not to raise the question ofhis

### No. 32174-6-II1 

### State v. Rieker

- concurring

orher ability to pay at sentencing. 

### See, e.g., State v. Duncan, 180 Wn. App. 245, 250-51, 327 P.3d 699 (2014), 

### reviewgranted, 353 P.3d 641 (2015). There is no evidence, however, to supportthis purportedrationale; it is a supposition appellate courts have made to explain why a particular defendant did not insist that the sentencing court follow the law. The supposition misses the point: The legislature gave the State the burden of production, not the defendant, and for discretionary LFOs to be imposed, there must be evidence that the defendant has or will have the ability to pay those costs. The dissent frames our disagreement as "whetherwe should deliver a consistent message that defendants need to raise this issue in the trial court at the time ofsentencing,

as contemplatedby RCW 10.01.160(3), orwhether we should forgive waiver, thereby creating an incentive for defendants to forgo opposing LFOs in the trial courtknowing that we offer a revolving door on appeal." Dissent at 2. Ifthis is our disagreement, it should be resolved in favor ofthe majority. First, RCW 10.01.160(3) does not require the defendant to raise the issue ofability to pay. Itrequires the State to produce evidence. 

### State v. Lundy, 176 Wn. App. 96, 106, 308 P.3d 755 (2013).1 Second, no evidence ofwaiver is everpresent in the record. It certainly is not present in this case. I would frame our disagreement in this manner: Whether appellate courts should continueto ignore clearly erroneous LFOs, orwhether we should enforce

I The State might quarrel with having the burden ofproduction because it lacks access to the defendant to createthe proper record. This difficulty can be overcome by the State simply advising the courtthat prisoners have an opportunity to earn money while incarcerated and that a certain range ofmonthly earnings is not atypical. 

### 2

### No. 32174-6-II1 State v. Rieker

- concurring

RCW 10.01.160(3) and insist that evidence actually support the trial court's imposition ofcosts. Those adopting the dissent's positionhave three retorts: (1) 

### LFO errors will rarely occur now that 

### State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015) has directed trial courts to comply with RCW 10.01.160(3); (2) there
are available alternatives for a defendant who truly cannot pay court costs; and (3)
we should adhere to RAP 2.5(a)'s general rule ofnot reviewing unpreserved
errors. First, simply because errors may occur less frequently does not excuse an appellate court from correcting errors as they do occur. Second, the alternatives available to a defendant erroneously ordered to pay discretionary LFOs are not

### satisfactory alternatives. For example, apersonal restraintpetition and a CrR 7.8(b) motion to amend ajudgmenthave strict timeliness requirements, place the burden ofproduction on the defendant, and involve lengthy and expensive processes. Similarly, a petition for remission under RCW 10.01.160(4) requires the defendant to prove that payment would impose a "manifest hardship." And even when a defendant meets this high standard, the trial court may still require full payment ofimproperly assessed LFOs by modifying the payment terms. Third, RAP 1.2(a)-which directs liberal interpretation ofthe rules of appellate procedure to promotejustice and facilitate decisions on their meritspermits appellate courts to review unpreserved LFO errors "because ofthe 3

### No. 32174-6-111 State v. 

### Rieker

- concurring widespreadproblems
... associated with LFOs imposed against indigent defendants." 

### Blazina, 182 Wn.2d at 841 (Fairhurst, 1., concurring in the result). Review andremand ofLFO errorspromotesjusticebecausethe benefit ofallowing those who have served their sentences to transition into society substantially outweighs the minimal cost ofa 10­ minuteremandhearing. We should not shy away from correcting legal errors. But not all alleged LFO

errors require remand. I encourage a practical approach that would remand only those

cases where imposition ofdiscretionary LFOs was questionable. This necessarily requires an individualized review. Here, the trial court ordered Mr. Riekerto pay $1,850 ofLFOs in monthly installments ofnot less than $25, commencing onhis incarceration. The trial court also orderedpayment ofrestitution, with the amounttobe determined at a later hearing. Because RCW 9.94A.760(l)requires restitution to bepaidpriorto court ordered LFOs, Mr. Rieker may not be able to makepayments toward his LFOs until afterhe is released from prison. Ifso, the trial courtwill need to also inquire whetherMr. Rieker, who has been convicted several times offirst degree theft and other felonies involving dishonesty, will likely everbeemployed at ajobthat pays more than subsistence wages. Because Mr. Rieker'spresent orfuture ability to payLFOs is questionable" given the above considerations, remand is appropriate.
Lawrence-Berrey, J.
4Dissent No. 32174-6-III
SIDDOWAY, C.J.

- (dissenting in part) I concur in the majority opinionwith the exception ofone issue: I would not exercise discretionto consider

### Mr. Rieker's challenge, for the first time on appeal, tothe trial court's finding that he has the ability to pay the legal financial obligations (LFOs) imposed. The majority states that in State v. Blazina, 182 Wn.2d 827,344 P.3d 680 (2015), the Washington Supreme Court "clarified" that RCW 10.01.160(3)requires the trial court to '" do more than sign ajudgment and sentencewith boilerplate language statingthat it engaged in the required inquiry.'" Majority at 25 (quotingBlazina, 182 Wn.2d at 838). No clarification ofthe requirement that the court "take account ofthe financial resources ofthe defendant and the nature ofthe burden thatpayment ofcosts will impose" should have beenneeded. RCW 10.01.160(3). No reported decision has everheld that an unconsidered boilerplate finding would suffice. Washington statutes clearly require

more. See id.; RCW 9.94A.760(2); State v. Duncan, 180 Wn. App. 245, 249-50, 327 P.3d 699 (2014) reviewgranted, 183 Wn.2d 1013,353 P.3d 641 (2015). The principal importance ofBlazina was its sternremindertotrial courts ofwhat the law requires, itsNo. 32174-6-III State 

### v. Rieker
identification ofcircumstances that a trial court may consider in determining ability to pay, and its holdingthatRAP 2.5(a) applies ifa defendant fails to address the issue of ability topay in the trial court. "[A] defendant has the obligationto properlypreserve a claim oferror" and "appellate courts normally declineto review issues raised for the first time on appeal." Blazina, 182 Wn.2d at 830, 834. All ofthejudges onthis court recognize that discretionary LFOs that a defendant cannotreasonably be expectedtopay will increase the difficulty ofreentering society. Ourdisagreement is whetherwe should delivera consistentmessage that defendants need to raise this issue in the trial court at the time ofsentencing, as contemplatedby RCW 10.01.160(3), orwhetherwe should forgive waiver, thereby creating an incentive for defendants to forgo opposingLFOs in the trial court knowingthatwe offer a revolving door on appeal. The rationale for refusing to entertain issues for the first time on appeal is well settled: we "insist[ ] on issue preservation
...to encourage 'the efficient use of judicial

resources.'.
. . Issue preservation serves this purpose by ensuring thatthe trial courthas the opportunityto correct any errors, thereby avoiding unnecessary appeals." State v. Robinson, 171 Wn.2d 292,304-05,253 P.3d 84 (2011) (citation omitted) (quotingState

v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988». The requirement for preserving

error applies regardless ofwho bears the burden ofproof, and I trust thatthe concurrence will notbe understood to suggest otherwise. We noted inDuncanthat a defendant facing 2No. 32174-6-111 State 

### v. Rieker sentencing has an incentive not to raise the question ofhis ability to pay financial obligations as an explanation for why we see a failure to preserve this error so often-we did not characterize that as the rationale for RAP 2.5(a). 

### Duncan, 180 Wn. App. at 250. A defendantwho has made what will often be a strategic decision not to raise the issue at sentencing has other avenues for relieffrom overly burdensome LFOs. I 1 respectfully dissent from the majority's decision to remand this case for consideration of

an issue that shouldhavebeenraised in the trial court.

# 2;~Il(j>e? Siddoway, C.J.

I A defendant can bring a timely motion under CrR 7.8(b) and he or she can seek remission ofthe obligations under RCW 10.01.160(4). Ifthe decisionwas not strategic and a defendant's circumstances wouldhave established inability to pay atthe time of sentencing, the defendant can file a personal restraintpetition supported by evidence of ineffective assistance ofcounsel. 3