DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
Docket Number: |
41129-6 |
Title of Case: |
State Of Washington, Respondent V David Loren Waldeck, Appellant |
File Date: |
03/13/2012 |
SOURCE OF APPEAL
----------------
Appeal from Wahkiakum Superior Court |
Docket No: | 10-1-00003-3 |
Judgment or order under review |
Date filed: | 08/23/2010 |
Judge signing: | Honorable Michael J Sullivan |
JUDGES
------
Authored by | Marywave Van Deren |
Concurring: | Lisa Worswick |
| Jill M Johanson |
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s) |
| John A. Hays |
| Attorney at Law |
| 1402 Broadway St |
| Longview, WA, 98632-3714 |
Counsel for Respondent(s) |
| Daniel Herbert Bigelow |
| Wahkiakum Prosecuting Atty |
| Po Box 608 |
| Cathlamet, WA, 98612-0608 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON,
Respondent, No. 41129-6-II
v. UNPUBLISHED OPINION
DAVID L. WALDECK,
Appellant.
Van Deren, J. -- David L. Waldeck appeals his conviction for unlawful possession of a
controlled substance (heroin), contrary to RCW 69.50.4013, asserting that: (1) the trial court
erred by refusing to compel the State to disclose a confidential informant's identity; (2) the search
warrant affidavit contained material misrepresentations and intentional omissions of material fact;
(3) the trial court erred by denying his motion to suppress evidence seized from his car under a
search warrant;and (4) the trial court erred by failing to give Waldeck's proposed unwitting
possession jury instruction. Finding no error, we affirm.
FACTS
On February 18, 2010, Wahkiakum County Detective Michael Balch was on patrol when
he saw a white passenger car traveling above the speed limit on State Route 4. Balch turned his
patrol car around, activated his emergency lights, and signaled the vehicle to pull over. As Balch
No. 41129-6-II
approached the vehicle, he observed two occupants; the driver, Waldeck, and a front seat
passenger, Joseph Loudin. Balch spoke with Waldeck and asked for his license, registration, and
proof of insurance. As Waldeck rolled his window down, Balch "noticed the obvious odor of
green or grown marijuana." Report of Proceedings (RP) (Aug. 16, 2010) at 10. Waldeck gave
Balch his license, insurance card, and an Affidavit in Lieu of Title.
As Balch was speaking with Waldeck, a Wahkiakum County resident and former police
officer, Michael Savant, came to the scene. Savant told Balch that "they had tossed items out of
the vehicle back down the road to the west." RP (Aug. 16, 2010) at 48. Balch called for another
officer to escort Savant to the location where he had seen items tossed from Waldeck's vehicle.
Wahkiakum County Deputy Sheriff Gary Howell went with Savant to retrieve the
discarded items. Howell found an "eight inch by eight inch square silver and black metal case and
. . . what appeared to be a Red Bull can." RP (Aug. 16, 2010) at 68. Inside the metal case,
Howell found digital scales with brown residue on them, a spoon with residue on it, "small plastic
baggies with white crystal residue," and syringes. RP (Aug. 16, 2010) at 72. Howell also
discovered that the Red Bull can was actually a storage device with a screw top and a hidden
compartment; Howell found plastic packaging material containing residue inside the can.
After Howell showed Balch the items tossed from Waldeck's vehicle, the officers searched
and arrested both Waldeck and Loudin. The officers recovered drug paraphernalia from Loudin's
person and recovered a syringe and $1,822 from Waldeck's person.
Balch had Waldeck's vehicle sealed and towed to a local impound lot before applying for
a warrant to search the vehicle. Balch's affidavit in support a search warrant stated in part:
On 2/18/2010 at approximately [5:20 p.m.], I was traveling westbound on State
Route[ ]#4 (SR4) near mile post 41 when I observed 2 vehicles coming towards
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No. 41129-6-II
me on SR4. The first vehicle was traveling at 56 [miles per hour (mph)] according
to my speed measuring device in a posted 55 mph zone. The second vehicle, a
white passenger car, caught my attention when it came quickly up to the rear of
the first vehicle and had to brake in an erratic fashion to avoid the first vehicle. My
speed measuring device captured the speed of the second vehicle slowing down
from 68 mph[ ] to 66 mph as it went by me. As I was at the [mile post] 41 . . .
marker there was room to immediately turn around to pursue the second vehicle
for a speeding violation. I then turned around and caught up to the white
passenger car just before mile post 42 and stopped the vehicle using my emergency
lights on my patrol car. The vehicle tried to stop immediately but had no[]where
to pull over, and it moved to the on-coming lane and pulled over on the westbound
side of SR4. I got out and contacted the driver, David L. Waldeck. Waldeck
showed me his Washington Driver's license and proof of insurance and a signed
document from [the Washington State Department of Licensing] labeled "Affidavit
in Lieu of Title."
. . . As Waldeck opened his window to talk with me I could smell the obvious
strong odor of growing and/or green Marijuana coming from the vehicle. . . . [A]
local resident, and former law enforcement officer I know and used to work with,
drove up to my location and told me that he had seen the people throw out
something from the passenger side of this car, (meaning the car I had pulled over)
just before I pulled them over. The reason I have not included the name of the
concerned citizen is because he has expressed fear of retaliation on himself or his
family if his identity became known. Because I could not check out the items
thrown out and stay with the car at the same time I called for assistance from
Deputy Gary Howell who was also working at this time. Deputy Howell came to
my location. I asked the concerned citizen if he could show Deputy Howell where
he saw the items thrown out at. He said he could. I know this subject to be of
good character and [he] has no known criminal history. He took Howell to the
location where items were thrown out. Deputy Howell came back and showed me
the items found thrown out of the car. The items included a small silver case with
scales and a disguised container which had baggies of drug residue in them. The
residue field tested positive for Heroin and Methamphetamine. The amount of
residue was more than is normal for a simple drug user.
Deputy Howell and I went back up to the suspect vehicle and because the items
were described as being thrown out from the passenger side of the vehicle Deputy
Howell asked to see identification from the passenger. The passenger handed
Howell a Washington State driver's license that identified him as being Joseph E.
Loudin. Howell confronted the passenger with the information we had been given
and Loudin denied any knowledge of this. Howell placed Loudin under arrest and
I read him his [Miranda1] rights. He told me he understood his rights. Loudin
was patted down and a drug pipe with residue was found along-with other items in
his pockets. I ran both subjects through the law-enforcement criminal history data
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3
No. 41129-6-II
base and discovered that both Waldeck and Loudin have extensive felony criminal
histor[ie]s including felony drug convictions for both. Deputy Howell told me that
he has interacted with David Waldeck in the past and knows that he has been a
Heroin user and has been at Waldeck's residence when he has overdosed on drugs.
I then assisted Deputy Howell in re[]contacting David Waldeck and asked him to
step out from the vehicle. Deputy Howell patted Waldeck down and handcuffed
him. During the pat down Deputy Howell located what appeared to be a used
syringe in his pants pocket along[ ]with over $1,800.00 in cash. Deputy Howell
advised Waldeck of his [Miranda] [r]ights at this time. He was placed in the rear
of my patrol car as we called Wahkiakum Tow for an impound preparing to apply
for a search warrant. The vehicle was sealed and placed in in-door storage. As we
were preparing the vehicle for tow, Waldeck asked several times for us to "not
tow the car." He seemed to be very upset at this fact and asked Deputy Howell if
there was any way to avoid the car being towed.
Based upon the above information I believe that there is still evidence of on[]going
criminal drug activity in the vehicle.
Ex. A, at 2-4.
Based on Balch's affidavit, the Wahkiakum County District Court issued a warrant
allowing a search of Waldeck's vehicle. Balch searched Waldeck's vehicle and found the
following items in the vehicle's trunk: a storage container made to look like a can of Red Bull, a
storage container made to look like a can of Coca Cola, and a 14 to 16 inch by 14 to 16 inch
black and silver box similar in design to the box thrown from Waldeck's car. The black and silver
box found in Waldeck's trunk contained scales with heroin residue, a glass pipe, cell phones, and
a pair of safe-deposit box keys. The sheriff's office returned the safe-deposit box keys to
Waldeck, along with other personal property items, after he signed for them as the owner. The
State charged Waldeck with unlawful possession of a controlled substance based on the heroin
residue found on the scales in his vehicle's trunk.
Waldeck moved to suppress the evidence seized from the trunk of his car. At the
suppression hearing, Waldeck's defense counsel asked Balch to identify the confidential informant
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No. 41129-6-II
described in the search warrant affidavit, later identified as Savant. The State objected and the
following discussion took place:
[THE State]: Your Honor, that witness has requested non-disclosure as a
witness citizen providing information that led to probable cause and at this time we
have withheld his identity and if we are -- if Counsel wishes to ask that information,
then we should have a hearing to --
[THE court]: Have a what?
[THE State]: Have a hearing to discuss whether or not we are compelled
to disclose the identity.
[THE court]: [Defense counsel], your response.
[Defense counsel]: Well, it makes it impossible for us to, one, verify
Detective Balch's statements as to what he was advised by this third party, but also
for us to independently evaluate the credibility of this third party. Mr. -- or
Detective Balch includes in his report that this person is, you know, a known
person of a certain character worthy of believability but it's kind of self-serving
when you're drafting a Warrant to say that about an individual. It would be nice if
we could verify that this person even exists.
[THE court]: Well, I'll allow you to ask some more general questions. . . .
[A]s far as the -- specifically the name, I'm going to sustain the objection at this
time.
RP (June 7, 2010) at 17-18.
Later in the suppression hearing, Waldeck's defense counsel also asked Howell to reveal
the informant's identity. The State again objected and the trial court sustained the State's
objection.
Although the State refused to identify Savant at Waldeck's June 7, 2010 suppression
hearing, it named Savant as a potential State's witness on July 30, 2010. On August 23, 2010,
the trial court entered its findings of fact and conclusions of law denying Waldeck's motion to
suppress evidence recovered from the vehicle's trunk.2 The findings and conclusions state:
2.1 While on patrol in Wahkiakum County, Washington, Detective Balch of
the Wahkiakum County Sheriff's Office turned on a white BMW sedan for
2 The trial court's findings and conclusions include Savant's name, even though he had not been
identified at the June 7 hearing but Savant had been identified before the findings and conclusions
were entered.
5
No. 41129-6-II
speeding near milepost 41 on State Route 4. Detective Balch smelled marijuana
coming from the motor vehicle while contacting the driver.
2.2 A citizen, Mike Savant, observed an object being thrown from the
passenger side of the BMW just before the stop and notified Detective
Balch of that act.
2.3 Detective Balch called Deputy Howell for backup and to assist Mr. Savant
in locating the tossed object. Deputy Howell and Mr. Savant returned to
the area of the toss-out and recovered a small case and a disguised
container (hide-a-can) which contained plastic wrap with drug residue in
it. The residue field tested positive for heroin and methamphetamines.
2.4 Deputy Howell returned to the stop and identified Joe Loudin as the
passenger since the item had come out of the passenger side. Since Mr.
Loudin denied any knowledge about the tossed item, Mr. Loudin was
arrested.
2.5 The driver of the BMW, Mr. Waldeck, was asked to step out and was
arrested and searched. A used syringe was found in his pants pocket along
with over $ 1,800.00 in cash. The driver produced proof of insurance and
an Affidavit in Lieu of Title.
2.6 The vehicle was impounded and a search warrant was issued to search the
vehicle. A case was found in the trunk of the BMW and it contained a
scale with heroin residue.
III. Conclusions of Law
3.1 The officers had probable cause to arrest Mr. Waldeck.
3.2 The search of Mr. Waldeck's person incident to arrest was legally
authorized.
3.3 The search of the BMW's trunk pursuant to the Search Warrant after the
vehicle was impounded was proper.
Clerk's Papers (CP) at 97-98 (boldface and underline omitted) (citations omitted).
The State called Savant as a witness at trial. Savant testified consistent with Balch's
description of what occurred after he stopped Waldeck.
Waldeck proposed an unwitting possession jury instruction that stated:
A person is not guilty of possession of a controlled substance if the
possession is unwitting. Possession of a controlled substance is unwitting if a
person did not know that the substance was in his possession or did not know the
nature of the substance.
The burden is on the defendant to prove by a preponderance of the
evidence that the substance was possessed unwittingly. Preponderance of the
evidence means that you must be persuaded, considering all of the evidence in the
case, that it is more probably true than not true.
6
No. 41129-6-II
CP at 48.
The trial court agreed to instruct the jury on the affirmative defense of unwitting
possession but struck the words "or did not know the nature of the substance" from Waldeck's
proposed instruction. CP at 83. The jury entered a verdict finding Waldeck guilty of unlawful
possession of a controlled substance. Waldeck appeals.
ANALYSIS
I. Confidential Informant's Identity
Waldeck first argues that the trial court erred by denying his request to compel the State
to disclose Savant's identity at the suppression hearing.3 Because Waldeck failed to cast doubt on
the truthfulness of Balch's and Savant's statements supporting the search warrant, we disagree.
We review a trial court's denial of a motion to disclose a confidential informant's identity
for abuse of discretion. State v. Petrina, 73 Wn. App. 779, 782, 871 P.2d 637 (1994). "A trial
court abuses its discretion when it acts on untenable grounds or for untenable reasons or when its
decision is manifestly unreasonable." Petrina, 73 Wn. App. at 783.
In general, the State is not required to disclose the identity of individuals who report
criminal activity to the police. Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 1 L. Ed.
2d 639 (1957); State v. Thetford, 109 Wn.2d 392, 395-96, 745 P.2d 496 (1987). RCW
5.60.060(5) states that "[a] public officer shall not be examined as a witness as to communications
made to him or her in official confidence, when the public interest would suffer by the disclosure."
3 On appeal, for the first time Waldeck argues that the trial court erred in failing to hold an in
camera review of Savant's statements to Balch. But absent doubt regarding the truthfulness of
the affiant's statements supporting issuance of the search warrant, the trial court need not order
an in camera review of the officer's or the informant's statements. State v. Casal, 103 Wn.2d 812,
820-21, 699 P.2d 1234 (1985).
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No. 41129-6-II
Additionally, CrR 4.7(f)(2) provides:
Informants. Disclosure of an informant's identity shall not be required where the
informant's identity is a prosecution secret and a failure to disclose will not
infringe upon the constitutional rights of the defendant. Disclosure of the identity
of witnesses to be produced at a hearing or trial shall not be denied.
The purpose of the privilege allowing protection of an informant's identity is to serve the
public's interest in effective law enforcement. Roviaro, 353 U.S. at 59. This privilege, however,
is not absolute and "fundamental requirements of fairness" require that the informant's privilege
give way "[w]here the disclosure of an informer's identity, or of the contents of his
communication, is relevant and helpful to the defense of an accused, or is essential to a fair
determination of a cause." Roviaro, 353 U.S. at 60-61. In determining whether to require
disclosure of a informant's identity, the trial court must balance "the public interest in protecting
the flow of information against the individual's right to prepare his defense" based on "the
particular circumstances of each case, taking into consideration the crime charged, the possible
defenses, the possible significance of the informer's testimony, and other relevant factors."
Roviaro, 353 U.S. at 62.
The preferred method for determining whether disclosure of a informant's identity is
relevant or helpful to the defense is for the trial court to hold an in camera hearing at which the
trial court hears the informant's testimony and applies the Roviaro standards. State v. Harris, 91
Wn.2d 145, 150, 588 P.2d 720 (1978). The defendant has the burden to show that an in camera
hearing is necessary and that disclosure of the informant's identity is warranted to ensure a fair
trial. Vazquez, 66 Wn. App. at 581.
In State v. Casal, 103 Wn.2d 812, 813, 699 P.2d 1234 (1985), our Supreme Court
8
No. 41129-6-II
addressed "the circumstances under which a defendant is entitled to an in camera hearing on a
search warrant affiant's veracity regarding statements allegedly made by a secret informant." The
Casal court held:
[W]here a defendant presents information which casts a reasonable doubt on the
veracity of material representations made by a search warrant affiant, and the
challenged statements are the sole basis for probable cause to issue the search
warrant, the trial court should exercise its discretion to conduct an in camera
examination of the affiant and/or secret informant on the veracity issue.
103 Wn.2d at 813.
Here, Waldeck challenged the search of the trunk of his car based on Balch's affidavit that
included Savant's statements to him about what he had observed. At the suppression hearing,
Waldeck did not articulate how Savant's identity was "relevant and helpful" to his defense or
"essential to a fair determination" of the case, Rovario, 353 U.S. at 60-61, or how it advanced his
suppression motion arguments. Moreover, Waldeck did not make a showing at his suppression
hearing of reasonable doubt about Balch's veracity regarding what Savant said. In fact, Waldeck
admits that he "did not provide an affidavit putting [Balch]'s statements in the [search warrant]
affidavit in question," which supporting information is required before a trial court is required to
order an in camera hearing on the issue of an affiant's veracity. Br. of Appellant at 19; see, e.g.,
Casal, 103 Wn.2d at 820 ("[A] trial court [is required] to exercise its discretion to order an in
camera hearing where the defendant's affidavit casts a reasonable doubt on the veracity of
material representations made by the affiant."). Accordingly, Waldeck did not meet his burden to
show that an in camera hearing on Savant's identity was required, and the trial court did not err
by refusing to compel the State to reveal Savant's identity at the suppression hearing.
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No. 41129-6-II
II. Challenge to Affidavit in Support of Search Warrant
Next, Waldeck asserts for the first time on appeal that the affidavit in support of the
search warrant was defective because it contained material misrepresentations and intentional
omissions of material facts. Again, we disagree.
Here, Waldeck did not challenge the search warrant affidavit before the trial court or
before trial. His challenge on appeal appears to be a belated request for a remand for a Franks4
hearing or for our review of the affidavit following trial, where all the State's evidence was
subjected to cross examination by the defense. The search warrant itself was not evidence at trial.
We cannot provide relief under these circumstances by ordering a Franks hearing, nor will we
review challenges to the affidavit when the trial court was not given a chance to address any issue
of probable cause for its issuance.5 Waldeck's failure to challenge the search warrant affidavit
before trial precludes his raising this issue on appeal for the first time since it does not meet any of
the criteria allowing a party to raise an issue for the first time on appeal under RAP 2.5.6
4 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
5 When a defendant "makes a substantial preliminary showing" that the affiant included a "false
statement knowingly and intentionally, or with reckless disregard for the truth" in the search
warrant affidavit, the trial court must hold a Franks hearing "if the allegedly false statement is
necessary to the finding of probable cause." 438 U.S. at 155-56. "The Franks test for material
misrepresentations applies to allegations of material omissions." State v. Garrison, 118 Wn.2d
870, 872, 827 P.2d 1388 (1992). The defendant must allege that the search warrant affidavit
contains a deliberate falsehood or reckless disregard for the truth. Garrison, 118 Wn.2d at 872.
There must be an offer of proof for this assertion; allegations of negligence or innocent mistake
are insufficient. Vickers, 148 Wn.2d . Then, a defendant must show that the false representation
was necessary to a finding of probable cause, and only if these steps are met will a Franks hearing
be required. Garrison, 118 Wn.2d at 873. Waldeck did none of these things at the trial court.
6 Generally, we will not consider issues raised for the first time on appeal. RAP 2.5(a); State v.
Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). The exception is when a claim of error,
raised for the first time on appeal is a manifest error affecting a constitutional right. RAP
2.5(a)(3); Kirkman, 159 Wn.2d at 925. "The defendant must identify a constitutional error and
10
No. 41129-6-II
III. Suppression Motion
Next, Waldeck asserts that the trial court erred by failing to suppress evidence seized from
his vehicle pursuant to a search warrant. Again, we disagree.
The warrant clause of the Fourth Amendment to the United States Constitution and article
I, section 7 of our state constitution require that a trial court issue a search warrant on a
determination of probable cause. State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002).
Probable cause exists where the search warrant affidavit sets forth "facts and circumstances
sufficient to establish a reasonable inference that the defendant is involved in criminal activity and
that evidence of the criminal activity can be found at the place to be searched." State v. Maddox,
152 Wn.2d 499, 505, 98 P.3d 1199 (2004).
Two different standards apply to our review of a probable cause determination. State v.
Emery, 161 Wn. App. 172, 201, 253 P.3d 413, review granted, 172 Wn.2d 1014 (2011). The
first standard applies to "'historical facts' in the case, i.e., the events 'leading up to the stop or
show how the alleged error actually affected the defendant's rights at trial. It is this showing of
actual prejudice that makes the error 'manifest,' allowing appellate review." Kirkman, 159 Wn.2d
at 926-27 (quoting State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995)).
Waldeck contends that the affidavit in support of a search warrant was defective because
it omitted the fact that Waldeck possessed a Washington State medical marijuana card. But there
was no evidence presented at the suppression hearing or at trial that Waldeck actually had
authorization to possess medical marijuana. And even if there were evidence that Waldeck could
validly possess medical marijuana, the fact of such authorization does not negate probable cause.
Fry, 168 Wn.2d at 10.
Waldeck also contends that the affidavit was defective for misrepresenting Savant's
statements to Balch concerning the items tossed from Waldeck's vehicle. But as we have already
determined above, Waldeck misperceives Savant's testimony, which was consistent with Balch's
statements in the affidavit. Waldeck thus fails to show actual prejudice affecting his constitutional
rights. Therefore, he alleges no manifest error allowing appellate review where he did not
preserve the alleged error by identifying to the trial court the alleged omissions and
misrepresentations contained in the search warrant affidavit, and did not request a Franks hearing
for a determination on that issue. Moreover, even had Waldeck preserved this claim, it fails.
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No. 41129-6-II
search.'" In re Det. of Petersen, 145 Wn.2d 789, 799-800, 42 P.3d 952 (2002) (quoting Ornelas
v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996)). We apply an
abuse of discretion standard to our review of a trial court or magistrate's finding that information
from an unnamed informant has enough reliability and credibility to qualify as historical fact.
Emery, 161 Wn. App. at 201-202. And we review de novo the legal conclusion that "'the
qualifying information as a whole amounts to probable cause.'" Emery, 161 Wn. App. at 202
(quoting Petersen, 145 Wn.2d at 800).
Waldeck asserts that the trial court erred by failing to suppress evidence because the
search warrant affidavit did not support a probable cause determination. Specifically, Waldeck
argues that the smell of marijuana from inside his car did not establish probable cause to search his
vehicle because he had a Washington State medical marijuana authorization card. But contrary to
Waldeck's assertion, there was no evidence presented at either the suppression hearing or trial
that he actually possessed a valid medical marijuana authorization card. Rather, Howell testified
at the suppression hearing that he believed Waldeck "very possibly" had a medical marijuana
authorization card based on a previous conversation, unrelated to this case, between Howell and
Waldeck. RP (June 7, 2010) at 36. More importantly, even if there were evidence that Waldeck
was authorized to possess medical marijuana, such authorization does not negate probable cause
to conduct a search for evidence of a crime in the searched area.
In State v. Fry, 168 Wn.2d 1, 7-8, 228 P.3d 1 (2010), our Supreme Court held that
authorization to use medical marijuana is merely an affirmative defense to an unlawful possession
of marijuana charge, and as such, does not negate elements of the charged crime. In so holding,
the Fry court reasoned:
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No. 41129-6-II
As an affirmative defense, the compassionate use defense does not eliminate
probable cause where a trained officer detects the odor of marijuana. A doctor's
authorization does not indicate that the presenter is totally complying with the Act;
e.g., the amounts may be excessive. An affirmative defense does not per se
legalize an activity and does not negate probable cause that a crime has been
committed.
168 Wn.2d at 10.
Waldeck also argues that the suspected drugs discarded from his car did not establish
probable cause to search his car because "the conclusion to be drawn from this information is that
the only drugs present in the car were those drugs in the passenger's possession, and that [the
passenger] had abandoned those drugs by dropping the containers out of the open door to the
car." Br. of Appellant at 23.
With regard to this latter argument, Waldeck contends that the affidavit was defective for
misrepresenting Savant's statements to Balch concerning the items tossed from Waldeck's
vehicle. This contention is not supported by the record. Waldeck argues that the affidavit should
have stated that Savant told Balch that he saw the passenger toss items from the car rather than
stating that Savant told Balch that "he had seen the people throw out something from the
passenger side of this car." Ex. A, at 3. The search warrant affidavit clearly states that the items
were described as being "throw[n] out . . . from the passenger side" of the vehicle. Ex. A, at 3.
At trial Savant testified that he saw "the passenger door [of Waldeck's vehicle] come open" and
that "some articles were tossed out of the vehicle" and that he told Balch that "they had tossed
items out of the vehicle back down the road." RP at 47-48 (emphasis added). Thus, contrary to
Waldeck's assertion, Savant did not state or testify that he saw the passenger toss items from
Waldeck's car.
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No. 41129-6-II
Because the smell of marijuana emanating from inside Waldeck's car was sufficient to
establish probable cause to issue a warrant authorizing a search of his car for evidence of
marijuana possession, regardless of whether Waldeck was authorized to possess marijuana for
medical purposes, and because there was more than the smell of marijuana coming from
Waldeck's vehicle, i.e., the digital scales with brown residue, a spoon with residue, small plastic
baggies with white crystal residue, syringes, the Red Bull can that was actually a storage device
with a screw top and a hidden compartment with plastic packaging material containing residue
inside the can, the drug paraphernalia from Loudin's person, and the recovered syringe and the
$1,822 from Waldeck's person, there was an adequate basis for a determination of probable cause
to search Waldeck's vehicle for evidence that a crime had been committed.7 The trial court did
not err by refusing to suppress evidence obtained in a search of Waldeck's car.
IV. Unwitting Possession Jury Instruction
Finally, Waldeck asserts that the trial court erred by refusing to give the entirety of his
proposed unwitting possession jury instruction. Again, we disagree.
We review de novo a trial court's refusal to give a proposed jury instruction based on a
legal issue. State v. White, 137 Wn. App. 227, 230, 152 P.3d 364 (2007). And we review for an
abuse of discretion a trial court's refusal to give a proposed jury instruction based on a factual
issue. White, 137 Wn. App. at 230. A defendant in a criminal case is "entitled to have the trial
court instruct upon its theory of the case if there is evidence to support the theory." State v.
Hughes, 106 Wn.2d 176, 191, 721 P.2d 902 (1986).
7 In stating this conclusion, we dispose of Waldeck's claim that the items thrown from the car do
not establish probable cause to search his vehicle.
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No. 41129-6-II
"Unwitting possession is a judicially created affirmative defense that may excuse the
defendant's behavior, notwithstanding the defendant's violation of the letter of the statute." State
v. Balzer, 91 Wn. App. 44, 67, 954 P.2d 931 (1998). "To establish the defense, the defendant
must prove, by a preponderance of the evidence, that his or her possession of the unlawful
substance was unwitting." Balzer, 91 Wn. App. at 67.
Waldeck appears to have proposed his unwitting possession jury instruction based on 11
Washington Pattern Jury Instructions: Criminal 52.01, at 1007 (3d edition 2008) (WPIC),
which states:
A person is not guilty of possession of a controlled substance if the
possession is unwitting. Possession of a controlled substance is unwitting if a
person [did not know that the substance was in [his] [her] possession] [or] [did not
know the nature of the substance].
The burden is on the defendant to prove by a preponderance of the
evidence that the substance was possessed unwittingly. Preponderance of the
evidence means that you must be persuaded, considering all of the evidence in the
case, that it is more probably true than not true.
(Boldface omitted) (brackets in original).
WPIC 52.01, note on use at 1007 states:
Use this instruction in any case of possession of a controlled substance
when there is evidence to support it. Use bracketed material as applicable.
Appropriate instructions may have to be drafted for the particular case to present
the issue of lack of knowledge of the nature of the substance involved.
After an extensive discussion with the State and defense counsel, the trial court agreed to
instruct the jury on Waldeck's unwitting possession affirmative defense but struck the phrase "or
did not know the nature of the substance" from the proposed instruction, indicating that the
evidence presented at trial did not support giving that portion of the instruction. CP at 48.
To be entitled to an unwitting possession jury instruction based on not knowing the nature
15
No. 41129-6-II
of the substance, there must have been some evidence presented at trial that Waldeck knew he
possessed the residue found on the scale in his vehicle's trunk, but that he was not aware that the
residue contained heroin. Because no such evidence was presented, the trial court properly struck
that portion of Waldeck's proposed unwitting possession jury instruction.8 Accordingly, we hold
that the trial court did not abuse its discretion in refusing to give the "nature of the substance"
portion of the proposed unwitting possession jury instruction.
Finding no merit to Waldeck's challenges to his conviction, we affirm.
A majorityofthe panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so
ordered.
Van Deren, J.
We concur:
Worwick, A.C.J.
Johanson, J
8 Waldeck argues that he was entitled to the portion of the unwitting possession instruction
regarding knowledge of the nature of the substance because "the amount of heroin on the scales
was residue only, thus not necessarily identifiable as a controlled substance." Br. of Appellant at
28. Waldeck cites no legal authority for his argument that a criminal defendant is entitled to a
"nature of the substance" unwitting possession instruction based solely on the amount of
controlled substances the defendant possessed. And his argument fails because, as addressed
above, there was no evidence presented that Waldeck knew he possessed the residue contained on
the scales but did not know the nature of the residue. Further, the trial court's unwitting
possession instruction allowed him to argue that he did not know that he possessed heroin based
on the fact that officers found only a residual amount of heroin on the scales.
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