IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Appellant,

v. SHAWN CORY GREEN, Respondent. No. 72863-6-1 g DIVISION ONE h UNPUBLISHED OPINION ^>
FILED: January 19, 2016 CD CD 

### Trickey, J. — The State appeals the trial court's order suppressing 

### evidence and dismissing a charge ofpossession with intent to manufacture or deliver a controlled substance, methamphetamine, against Shawn Green. It claims that the trial court erred in concluding that there was not probable cause to issuethe search warrant. We disagree and affirm. FACTS 

### On August 1, 2014, the Skagit County District Court issued a search warrantfor a residence at219 Laurel Drive in Sedro-Woolleyforviolations of the Uniform Controlled Substances Act, chapter 69.50 RCW. The warrant authorized the search and seizure of controlled substances and drug 

### paraphernalia, among other items. The warrant was based on the written affidavit of a sergeant with the city of Sedro-Woolley Police Department. We describethe contents of thisaffidavitin greaterdetail later in thisopinion. 

### The police executed the warrant on August 5, 2014. Inside the house werethreeindividuals, including Green, whowasinthesouthwestbedroom. The 

### officers recognized Green from previous law enforcement contacts, and they arrested him. Thereafter, theofficers searched thehouse. They seizedseveralNo. 72863-6-1 / 2 

### items from the southwest bedroom, including cell phones, a Washington State 

### Department of Corrections identification card, a "white crystal like substance," 

### digital scales, andpackaging materials.1 Based on this evidence, the State charged Green with one count of 

### possession with intent to manufacture or deliver a controlled substance— 

### methamphetamine. The chargeincluded aschoolzone enhancementallegation. Greenmoved tosuppress the evidence on several bases. He argued that the search warrant affidavit did not establish probable cause to search the 

### residence. He also argued that the search warrant was overbroad and vague. 

### Finally, he argued that several items seized were not supported by probable

cause or were not authorized by the warrant. 

### After a hearing, the trial court concluded that there was not probable
cause to believe that there would be drugs in the residence and, therefore, there 

### was not probable cause to issue the search warrant. It entered an order 

### suppressing any evidence located in the residence and dismissing the charge against Green. The State appeals. ANALYSIS 

### The State argues that thetrial court erred when it concluded thatthere was notprobablecause to issue the searchwarrant. We disagree. "Probable cause exists ifthe affidavit in support of the warrant sets forth 

### facts and circumstances sufficient to establish a reasonable inference that the

Clerk's Papers (CP) at 39.No. 72863-6-1 / 3 defendant is probably involved in criminal activity and that evidence ofthe crime
can be found atthe place to be searched." State v. Thein. 138 Wn.2d 133, 140, 977 P.2d 582 (1999). Thus, probable cause "'requires a nexus between criminal activity and the item to be seized, and also a nexus between the item to be seized and the placeto be searched.'" Thein. 138 Wn.2d at 140 (quoting Statev. Goble. 88 Wn. App. 503, 509, 945 P.2d 263 (1997)). 

### We generally review the issuance of a search warrant for abuse of discretion. State v. Neth. 165 Wn.2d 177, 182, 196 P.3d 177 (2008). We give 

### great deference to the issuing magistrate's determination of probable cause. State v. Maddox. 152 Wn.2d 499, 509, 98 P.3d 1199 (2004); State v. Chenoweth. 160 Wn.2d 454, 477, 158 P.3d 595 (2007). Our review is limited to the four corners ofthe affidavit. Neth. 165 Wn.2d at 182. We view the affidavit in


### a commonsense manner rather than hypertechnically. Chenoweth, 160 Wn.2d at 477. All doubts are resolved in favor of the validity of the warrant. Maddox. 152 

### Wn.2d at 509. However, "[w]hile we give great deference to the magistrate, that deference is not unlimited." State v. Lyons, 174 Wn.2d 354, 362, 275 P.3d 314 

### (2012). "We cannotdeferto themagistratewhere theaffidavitdoes notprovide a substantial basisfor determining probable cause." Lyons, 174Wn.2d at 363. The State devotes most of its appellate briefing to arguments that the trial 

### court erred byapplying the wrong standard ofreview or byfailing to give proper 

### deference to the magistrate.2 At the suppression hearing, the trial court acts in 

### an "appellate-like capacity." Neth, 165Wn.2d at 182. "Althoughwedeferto the
2Appellant'sBr. at 2-3, 7-8; Appellant'sReply Br. at 2-8.No. 72863-6-1 / 4 magistrate's determination, the trial court's assessment of probable cause is a legal conclusion [that] we review de novo." Neth. 165 Wn.2d at 182. Because
we review the trial court's conclusion on probable cause de novo, and will give proper deference to the magistrate's determination, we need not address these arguments. Our task is to determine whether the affidavit contains specific facts to 

### support the magistrate's determination of probable cause. We agree with the trial court that it does not. The affidavit fails to establish a nexus between the 

### items to be seized—drugs and drug paraphernalia—and the place to be searched—219 Laurel Drive. The affidavit states that since 2007, the Sedro-Woolley Police Department 

### has been receiving complaints of illegal drug activity at 219 Laurel Drive, the residence of Kirk Peters. Police have made arrests at this residence for various 

### offenses, including violations of the Uniform Controlled Substances Act. The affidavitdoes not provide any details aboutthese complaints orarrests. The affidavit also describes the activities of a criminal informant (CI). It states that the CI told law enforcement that he or she had purchased 

### methamphetaminefrom several differentpeople at this residence forthe pasttwo 

### years. Italso states that thepolice utilizedtheCI tomaketwo controlled buys of methamphetamine atthis residence inthe"latterpartofJuly2014."3 During the first controlled buy, Callie Swartz, one of the residents of 219 Laurel Drive, called several people to have someone deliver methamphetamine

3 CP at 34.No. 72863-6-1 / 5
to the residence. While the CIwas waiting for this delivery, an individual bythe
name of Brandon Frizzell arrived and offered to sell the CI methamphetamine. Frizzell pulled a small bag "with [a] crystal likesubstance" from his sock, weighed 

### it on a portable scale, and packaged it into a smaller Ziploc bag.4 The CI purchased .8 grams ofmethamphetaminefromFrizzell and left. 

### During the second controlled buy, five people were present in the living
roomwhen the CIarrived. The CIasked ifanyone had any "clear"—a streetterm 

### used to identify methamphetamine—and one person said that he had a little in a 

### glass bowl pipe that he wassmoking.5 No one present had anyfortheCI to take with him or her. Someone at the residence called Daniel Gilbert and within 15 

### minutes, Gilbert arrived. Gilbert went into a bedroom with the CI, where he 

### weighed methamphetamine on a portable digital scale and packaged .9 grams into a smaller bag for the CI. TheCI paidGilbert$50 and left. 

### Thereafter, during the week of July 28, police took the CI to 219 Laurel Drive to conduct a third controlled buy. Six people were inside the house, 

### including Frizzell and Swartz. Frizzell told the CI that he did not have any 

### methamphetamine butthat he wasgoing to"re-up" laterthatnight.6 "Re-up" is a term used by dealers to indicate that they are currently out of drugs butplan to re-stock soon.7 Noone else in the house had any methamphetamine. The CI left. In the same week, "two other attempts to buy methamphetamine from

4 CP at 34. 5 CP at 35. 6 CP at 35. 7 CP at 35.No. 72863-6-1 / 6 Frizzell and Swartz were unsuccessful because everyone at the house was sold 

### out and were waiting to re-up."8 These facts do not establish probable cause to believe that drugs or drug paraphernalia would be found in the residence. During the first two controlled buys, persons outside the house brought controlled substances into the house. Nothing in the affidavit indicates that either of those individuals, who were nonresidents, kept drugs or drug paraphernalia in the house. The third, fourth, and fifth controlled buys were all unsuccessful. No one in the house had any methamphetamine to sell. Nothing in these encounters establishes probable
cause to believe that drugs or drug paraphernalia would be found in the
residence. 

### The State points to the CI's statements to lawenforcementthat he or she 

### had purchased methamphetamine from several individuals at the residence for two years.9 But the affidavit fails to provide any details about these purchases, such as when the purchases occurred or the identity of the seller. Further, these 

### allegedpurchases occurred before the three unsuccessful controlled buysin July 2014. "The facts set forth in the affidavit must support the conclusion that the 

### evidence is probably at the premises to be searched at the time the warrant is issued." Lyons, 174 Wn.2d at 360. The facts presented in this case do not 

### support the conclusion that there would be methamphetamine or drug paraphernalia at the time the warrantwas issued.

CP at 35. 'Appellant's Opening Br. at 10;Appellant's Reply Br. at 9.No. 72863-6-1 / 7 The State asserts that "the informant was told by the occupants of the address that they were 'sold out' and they were going to 're-up'" and that "[o]ne 

### occupant advised the informant he would be re-upping that night."10 The State contends that, from this, the magistrate "could inferthat the occupants had been involved inongoing drug activityand thatthe drug traffickingand drug use would continue."11 The State is incorrect. The affidavit does not establish that occupants of the residence told the CI that they would be re-upping. The affidavit states that 

### Frizzell said that he was going to "re-up."12 But nothing in the affidavit indicates that Frizzellwas an occupant ofthe house. The affidavitalso states that the last 

### two attempts to buy methamphetamine were unsuccessful because "everyone at 

### the house was sold out and were waiting to re-up."13 But the affidavit never established thatoccupants of the house were among those individuals. The State relies on State v. Maddox. 152 Wn.2d 499, 505, 98 P.3d 1199 

### (2004). In Maddox. an informant made a controlled buy of methamphetamine from the defendant, Christopher DorianMaddox, at Maddox's home. 152 Wn.2d at 503. Thereafter, the police obtained a search warrant, which "authorized a search for evidence ofmethamphetamine dealing as well as methamphetamine itself." 152 Wn.2d at 504, 510. Before police executed the search warrant, the 

### informant attempted another controlled buy. During this attempted buy, Maddox

10Appellant's Opening Br. at 10-11. 11 Appellant's Opening Br. at 11. 12CP at 35. 13CP at 35.No. 72863-6-1 / 8 told the informant that he "'was out [of methamphetamine] and that he would have some in a couple ofdays.'" 152Wn.2d at 504. On appeal, the Supreme Court acknowledged that probable cause to search for methamphetamine was negated by Maddox's statements. Nonetheless, itconcluded that there was probable cause to search for evidence ofmethamphetamine dealing. Maddox, 152 Wn.2d at 510. The court reasoned 

### that a reasonable person could infer from the facts and circumstances that evidence ofmethamphetamine dealing remained at Maddox's home even if he


### was temporarily out of the drugitself. Itrelied on the facts that the informanthad known Maddox for five years, had purchased methamphetamine from him for 

### four years, had purchased methamphetamine from Maddox at least 35 times in various quantities up tofour ounces, and had purchased methamphetaminefrom Maddox at his home just three days priorto the warrant's issuance. 152Wn.2d at 511. It also relied on a detective's testimony about the common habits of drug 

### dealers and on Maddox's longhistory as a drug dealer. 152Wn.2d at511-12. This case does not present similar facts. Here, the affidavit does not 

### indicate that the informant ever purchased drugs from anyone who lived at 219 Laurel Drive. Nor does itestablish that the occupants ofthe house have a long 

### history as drug dealers. Thus, the affidavit in this case isunlike the affidavit in Maddox, which "provided a factual nexus between Maddox's drug dealing and his home." 152 Wn.2d at 511-12.

8No. 72863-6-1 / 9
Because the affidavit fails to establish a nexus between the item to be seized and the place to be searched, probable cause did not exist to issue the search warrant. The trial court properly granted the motion to suppress. Given our resolution ofthis issue, we need not address Green's argument that the trial court should be affirmed on the alternative ground that the warrant


### was overbroad and lacked particularity.14 Affirmed. 

# Ji^(At>| , J"

WE CONCUR: 

# %£Ut4&

14 See Br. ofResp't at 13-16.