STATE v. AASE (2004)

PART PUBLISHED OPINION

Christian M. Aase appeals his bench trial conviction for possession of methamphetamine.   He contends that the trial court should have suppressed the evidence because police did not serve the search warrant at  the “outset” of the search.   He also argues that the search warrant was not issued on probable cause.   Pro se, Aase claims ineffective assistance of counsel and he makes other claims relating to probable cause and execution of the search warrant;  he also asserts that the police continued to question him after he asked for an attorney and that his statements should have been suppressed.   Because the record supports the trial court's findings that evidence supporting the warrant was sufficient and its execution was proper, we affirm.

FACTS

On September 12, 2001, the Honorable Anna Laurie issued a search warrant based on the affidavit of Detective Roy Alloway of the West Sound Narcotics Enforcement Team, Kitsap County.   In the affidavit, Alloway described four separate informants' reports that the residents of 1008 A Kitsap Street, Port Orchard, Kitsap County (“1008 A”), were selling methamphetamine.

Alloway received information from the first informant in May 2001. On June 12, 2001, after receiving a second report, Alloway conducted a “knock and talk” at the address.   Alloway found Aase and his roommate, Karen Young, at the residence.   Aase was “uncooperative” and demanded that the officers leave the property.   During the visit, Alloway noticed a fan running in a vent in the roof.   Alloway also saw empty mason jars of “the style frequently seen at methamphetamine lab operations” and a trash can with plastic tubing hanging out of it (again, “commonly seen at methamphetamine lab operations”) at the rear door of the residence, visible from the sidewalk.   Exhibit 1 at 2. Alloway arrested Young on an outstanding unrelated warrant and left the Aase residence without going inside.

On September 5, 2001, another detective received a third tip from a Kitsap County Jail inmate, who reported that Aase was selling methamphetamine.   Then, on September 11, 2001, Alloway answered a call from the fourth informant, Theresa Anderson-Deitchler, who told him that she had known Young for several months and knew that Young and Aase were involved in methamphetamine distribution.   Anderson-Deitchler, a former methamphetamine user, stated that her motive for making the report was to eliminate a source of methamphetamine, one that was providing the drug to kids and “ripping a lot of people off.”   Exhibit 1 at 3. She stated that she had been at 1008 A earlier that day and had seen a methamphetamine sale take place.   Anderson-Deitchler described both the exterior and interior of the residence and reported seeing a safe, jewelry, needles, and approximately an ounce of methamphetamine.   She also knew that Aase was on home detention, which Alloway confirmed.

After receiving Anderson-Deitchler's report, Alloway established that Anderson-Deitchler had no criminal record involving deceit, perjury, or falsification, but she did have a conviction for possession of methamphetamine.   Alloway drove by 1008 A and confirmed that the outside of the residence matched Anderson-Deitchler's description, and he remembered that the interior was as Anderson-Deitchler described it from having looked in through the front door during his own June 12 visit.

Alloway obtained a search warrant and he and other officers searched Aase's residence on September 12, 2001.   At the suppression hearing, Alloway testified that he gave Aase a copy of the warrant “several minutes” into the search when Aase was sitting on the couch and that he left a copy of the warrant on a shelf near the bedroom.   In contrast, Aase testified at the suppression hearing that the police ordered him to the ground and never showed him the warrant during the search.   He also testified that he repeatedly asked to see it.   Young also testified that she heard Aase asking to see the warrant.   According to Aase, he did not see the warrant until he got out of jail roughly a week later.

On December 3, 2001, Aase and his attorney, Matthew Kuehn, appeared before the Honorable Jay B. Roof. Before the hearing could take place, Aase complained that he was  unsatisfied with his attorney's representation.   Among other things, he complained that Kuehn was not spending enough time on his case.   Aase and Kuehn described their disagreement as to the best way to defend the case-for example, Aase wanted to have the alleged methamphetamine independently tested, but Kuehn was aware of a possible “hold back” charge (with the possibility of substantially more jail time) if this request were made.   After a lengthy on-record discussion, the court allowed Aase and Kuehn to discuss the matter off the record for 15 minutes.   When the two returned, Aase agreed to waive speedy trial, which gave Kuehn and Aase more time to work on the case.

At Aase's January 28, 2002 suppression hearing before the Honorable Thomas Majhan, Aase (still represented by Kuehn) argued that the evidence should be suppressed because the warrant was not supported by probable cause and not executed properly.   In denying the motion, the court concluded that the warrant was supported by probable cause and that the law does not require a warrant to be served at the outset of the search.

Aase then moved for reconsideration, arguing that under United States v. Gantt, 194 F.3d 987 (9th Cir.1999), the evidence should be suppressed.¹  The court resolved the dispute in the testimony between Alloway and Aase regarding the delivery of the warrant in the State's favor, stating that it would “accept [Alloway's] testimony as a verity.”   Report of Proceedings (RP) (January 31, 2002) at 9. Without specifically holding that Gantt did not apply, the trial court again rejected Aase's motion to reconsider.

Following a bench trial on stipulated facts, Aase was convicted of possession of methamphetamine and sentenced to 30 days in jail.²  He appeals his conviction.

 ANALYSIS

Challenged Finding of Fact

 Aase contends that Finding of Fact XIII, that “Detective Alloway provided the defendant with a copy of the search warrant at the time of the search ” (Clerk's Papers (CP) at 51 (emphasis added)), is not supported by substantial evidence.   He also contends that even if that finding of fact is supported by substantial evidence, the finding does not address when during the search Alloway provided the warrant.

 When reviewing the denial of a suppression motion, we decide whether substantial evidence supports the findings of fact.  State v. Mendez, 137 Wash.2d 208, 214, 970 P.2d 722 (1999);  State v. Hill, 123 Wash.2d 641, 644, 647, 870 P.2d 313 (1994).   We review de novo the trial court's conclusions of law.  Mendez, 137 Wash.2d at 214, 970 P.2d 722.   Where the trial court's findings of fact and conclusions of law are supported by substantial but disputed evidence, we will not disturb its ruling.  State v. Smith, 84 Wash.2d 498, 505, 527 P.2d 674 (1974);  State v. Chapman, 84 Wash.2d 373, 376, 526 P.2d 64 (1974).   Credibility determinations are for the trier of fact and are not subject to our further review.  State v. McCrorey, 70 Wash.App. 103, 114, 851 P.2d 1234, review denied, 122 Wash.2d 1013, 863 P.2d 73 (1993), abrogated on other grounds by State v. Head, 136 Wash.2d 619, 964 P.2d 1187 (1998).

Substantial evidence supports the finding that Alloway provided a copy of the warrant to Aase “at the time of the search.”   CP at 51. Alloway testified that he handed a copy to Aase “several minutes” into the search, after the area had been secured and Aase was sitting on the couch.   RP (January 28, 2002) at 21.   While Young, Aase's roommate, testified that Aase repeatedly asked for the warrant, she never testified as to when Aase actually received the warrant.   Aase argues that the trial court should not have accepted Alloway's testimony based on his statement that “I don't recall the sequence at that point.   It really didn't matter to me.”   RP (January 28, 2002) at 22.   But Aase takes this  statement out of context.   Alloway's “sequence” testimony was that he did not remember if Aase returned the warrant to him when Aase was taken to jail.

Execution of the Search Warrant

 We next address whether delivering the warrant “several minutes” into the search requires suppression.   Aase contends that the evidence against him should be suppressed under the criminal rules, the Fourth Amendment of the United States Constitution, and Article I, section 7 of the Washington Constitution.³

Aase first argues that the Ninth Circuit's opinion in Gantt requires that we invalidate a search where a defendant who was present at the time of a search did not immediately receive a copy of the warrant.

Under CrR 2.3(d):

The peace officer taking property under the [search] warrant shall give to the person from whom or from whose premises the property is taken a copy of the warrant and a receipt for the property taken.   If no such person is present, the officer may post a copy of the search warrant and receipt.

The wording of former Fed.R.Crim.P. 41(d) (2000) ⁴ is nearly identical, although the Washington rule is actually more explicit that a copy of the warrant must be given to the occupant of the premises, if present.

 In Gantt, the Ninth Circuit relied on former Rule 41(d) to suppress evidence when the occupant of a residence was not provided a copy of a search warrant until the search was completed and she had been arrested and transported to the Federal Bureau of Investigation (FBI) headquarters.  194 F.3d 987.   Federal agents directed Gantt to sit in a hallway while they conducted a three-hour search of her apartment.   Even after the defendant asked to see the warrant, the agents showed her only the face of the warrant.   Gantt, 194 F.3d at 996.   The court held, “absent exigent circumstances, if a person is present at the search of her premises, Rule 41(d) requires officers to give her a complete copy of the warrant at the outset of the search.”  Gantt, 194 F.3d at 994 (emphasis added).   The court noted that a “technical” (as opposed to “fundamental”) violation of Rule 41(d) would not usually demand suppression, but that here it did:  “ ‘[T]echnical’ violations of Rule 41(d) require suppression only if there was a ‘deliberate disregard of the rule’ or if the defendant was prejudiced․ Suppression is justified here because the violation was deliberate.”  Gantt, 194 F.3d at 994 (emphasis added) (citing United States v. Negrete-Gonzales, 966 F.2d 1277, 1283 (9th Cir.1992)).   See also United States v. Johnson, 660 F.2d 749, 753 (9th Cir.1981), cert. denied, 455 U.S. 912, 102 S.Ct. 1263, 71 L.Ed.2d 452 (1982) (“prejudice” in this context means the search would otherwise not have occurred or would have been less intrusive absent the error).

Aase also argues that the Gantt holding is based on the Fourth Amendment and requires suppression here.   But the Fourth Amendment compels automatic suppression only where there is a “fundamental” violation of Rule 41;  fundamental violations are those “render[ing] the search unconstitutional under traditional fourth amendment standards.”  United States v. Vasser, 648 F.2d 507, 510 (9th Cir.1980) (citing United States v. Burke, 517 F.2d 377, 386 (2d Cir.1975)), cert. denied, 450 U.S. 928 (1981).   And the Gantt court explicitly found a deliberate violation, thus avoiding the question of whether the violation was “technical” or “fundamental.”  194 F.3d at 994.

 The Gantt defendant waited three hours and was never able to examine a complete copy of the warrant.   Here, there was substantial evidence that Aase received a full copy of the warrant only minutes into the search.   “[I]t is reasonable for an officer executing a search warrant at a residence to briefly detain occupants of that residence, to ensure officer safety and an orderly completion of the search.”  State v. King, 89 Wash.App. 612, 618-19, 949 P.2d 856 (1998).   Thus, neither Gantt nor the Fourth Amendment compels suppression here.

We next address Aase's argument that we must suppress the evidence under Article I, section 7 of our state constitution.   Whether the Washington constitution provides a level of protection different from the federal constitution is determined by the six nonexclusive Gunwall⁵ factors.  State v. Young, 123 Wash.2d 173, 179, 867 P.2d 593 (1994).   Because we examine the same constitutional provision at issue in Gunwall, we adopt the court's analysis of factors one, two, three, and five.   State v. Ferrier, 136 Wash.2d 103, 111, 960 P.2d 927 (1998);  State v. Boland, 115 Wash.2d 571, 576, 800 P.2d 1112 (1990).   As for the fourth factor, we examine preexisting state law to determine what level of protection this state has historically accorded this subject.  Ferrier, 136 Wash.2d at 111, 960 P.2d 927.   And in doing so, we reject Aase's argument-Washington cases have been consistent in finding that absent a showing of prejudice to the defendant, procedural noncompliance does not compel invalidation of an otherwise sufficient warrant or suppression of its fruits.  State v. Kern, 81 Wash.App. 308, 311, 914 P.2d 114, review denied, 130 Wash.2d 1003, 925 P.2d 988 (1996).   See State v. Parker, 28 Wash.App. 425, 426-27, 626 P.2d 508 (1981) (citing United States v. McKenzie, 446 F.2d 949 (6th Cir.1971)) (holding that search not invalidated by defendant receiving unsigned and undated copy of warrant);  State v. Bowman, 8 Wash.App. 148, 150, 504 P.2d 1148 (1972) (holding suppression not required for technical violation under former statute governing execution of a search warrant for “dangerous drugs” where  warrant was read aloud and served on householder, but not served on defendant as required by statute).   See also City of Tacoma v. Mundell, 6 Wash.App. 673, 677-78, 495 P.2d 682 (1972) (holding that under former RCW 69.33.430, although preferable if defendant is served personally with a copy of the search warrant, it was not reversible error when defendant received the warrant the next day).   Compare State v. Ettenhofer, 119 Wash.App. 300, 307, 79 P.3d 478 (2003) (holding that search was unconstitutional, and declining to apply prejudice standard, where judge reportedly approved search telephonically but no written warrant was ever issued).

United States v. Gantt, 194 F.3d 987 (9th Cir.1999), the Fourth Amendment, and Article I, section 7 do not compel suppression of evidence where a copy of the warrant and the items seized are not given to the defendant resident before commencing an otherwise lawful search.   Even assuming Alloway and the officers “deliberately” violated CrR 2.3(d), Aase does not argue that he was prejudiced by the several-minute delay or that the search would have somehow been less intrusive had he been able to immediately see the warrant.   Suppression is not required.⁶

A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Probable Cause Affidavit

Next, Aase contends that the search warrant was not supported by probable cause, and he argues that Alloway's complaint for a search warrant is inadequate under Aguilar-Spinelli.7  In his pro se supplemental brief, Aase also argues that the June 12, 2001 “knock and talk” was “pretextual” and he challenges the warrant affidavit on the grounds that Alloway could not have observed the back door of the residence unless he was in an area of the property where he had no right to be.

A magistrate's decision to issue a warrant is an exercise of judicial discretion that we review for abuse of discretion.  State v. Vickers, 148 Wash.2d 91, 108, 59 P.3d 58 (2002);  State v. Seagull, 95 Wash.2d 898, 907, 632 P.2d 44 (1981).   We generally accord great deference to the magistrate, viewing the supporting affidavit for a search warrant in the light of common sense and resolving doubts about the existence of probable cause in favor of the magistrate issuing the search warrant.  Vickers, 148 Wash.2d at 108-09, 59 P.3d 58;  Young, 123 Wash.2d at 195, 867 P.2d 593.

The warrant clause of the Fourth Amendment of the United States Constitution and article 1, section 7 8 of the Washington Constitution require that a search warrant be issued on probable cause based on “ ‘facts and circumstances sufficient to establish a reasonable inference’ that criminal activity is occurring or that contraband exists at a certain location.”   Vickers, 148 Wash.2d at 108, 59 P.3d 58 (citing State v. Thein, 138 Wash.2d 133, 140, 977 P.2d 582 (1999)).   Under CrR 2.3:

A search warrant may be issued only if the court determines there is probable cause for the issuance of a warrant.   There must be an affidavit [or a certificate] ․ or sworn testimony establishing the grounds for issuing the warrant․ If the court finds that probable cause for the issuance of a warrant exists, it shall issue a warrant.

CrR 2.3(c).  The affidavit in support of the search warrant must be based on more than suspicion or mere personal belief that evidence of the crime will be found on the premises searched.  Seagull, 95 Wash.2d at 907, 632 P.2d 44.

Washington follows the two-part Aguilar-Spinelli test under which the affidavit must demonstrate an informant's (1) basis of knowledge and (2) veracity.  State v. Jackson, 102 Wash.2d 432, 435-440, 688 P.2d 136 (1984).

To satisfy both prongs of Aguilar-Spinelli, an affidavit must state the underlying circumstances from which the magistrate may conclude that the informant was credible (“credibility” prong) and obtained the information in a reliable manner (“basis of knowledge” prong).  Vickers, 148 Wash.2d at 112, 59 P.3d 58;  Jackson, 102 Wash.2d at 435, 437, 688 P.2d 136.   If either part of the Aguilar-Spinelli test is deficient, independent police investigation corroborating the informant's tip (to the extent that it tends to support to the report that the suspect is engaged in criminal activity) may demonstrate probable cause.  Vickers, 148 Wash.2d at 112, 59 P.3d 58;  Jackson, 102 Wash.2d at 438, 688 P.2d 136.

The “basis of knowledge” prong is satisfied by a showing that the information provided by the informant was based on personal knowledge.  Vickers, 148 Wash.2d at 112, 59 P.3d 58.   Anderson-Deitchler, a former methamphetamine user, personally observed the drug at Aase's residence first-hand 9 and had witnessed a sale to “Jill” earlier that day.

As for the reliability prong, named “citizen informants” are presumed reliable.  State v. Wible, 113 Wash.App. 18, 24, 51 P.3d 830 (2002) (citing State v. Rodriguez, 53 Wash.App. 571, 574-75, 769 P.2d 309 (1989)).   In some situations, this presumption of reliability for named informants is diminished by the circumstances, which may give rise to suspicions that the named informant is acting out of self-interest.   See Rodriguez, 53 Wash.App. at 575, 769 P.2d 309.   The fact that a person is named is not alone sufficient grounds on which to credit an informer;  it is merely one factor which may be weighed in determining the sufficiency of an affidavit.  Rodriguez, 53 Wash.App. at 576, 769 P.2d 309.   In such situations, to establish the reliability of a citizen informant and fulfill the second prong of the Aguilar-Spinelli test, the police must ascertain such background facts as would support a reasonable inference that he or she is “prudent” or credible and without motive to falsify.  State v. Chatmon, 9 Wash.App. 741, 748, 515 P.2d 530 (1973) (citing United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971)).   Here, we are reluctant to afford Anderson-Deitchler the presumption of reliability due a named citizen informant because the affidavit here does not establish that she reported her concerns to Alloway face-to-face. 10  But the reliability prong is satisfied here because the facts and circumstances that Alloway knew from his own observations corroborated the information Anderson-Deitchler provided and reasonably supported an inference that the informant was telling the truth.   See State v. Lair, 95 Wash.2d 706, 709-10, 630 P.2d 427 (1981).   See also State v. Duncan, 81 Wash.App. 70, 77, 912 P.2d 1090, review denied, 130 Wash.2d 1001, 925 P.2d 988 (1996).   Some of the details that Alloway observed, such as an attic fan running in mid-June, do not necessarily indicate criminal activity. 11  But other details indicate that the information Anderson-Deitchler provided was trustworthy:  For example, Alloway had previously observed jars and tubing consistent with methamphetamine manufacture at the rear of the residence where Anderson-Deitchler reported observing a methamphetamine sale.   And Anderson-Deitchler's description of the interior of the house was consistent with Alloway's earlier observations, indicating that she had been inside the residence.   These details, combined with reports from three other informants that Aase was selling methamphetamine from his residence provided over a span of four months, corroborate Anderson-Deitchler's report and establish probable cause.

In his pro se supplemental brief, Aase further challenges the issuance of the warrant.   Aase asserts that Alloway would not have been able to observe the jars and tubing at the back door on June 12, 2001, unless he was in a location where he did not have a right to be.   Aase's counsel raised this issue at the January 28, 2002 suppression hearing, but the court disagreed, commenting, “[T]here was no testimony saying or nothing in evidence from which the Court could conclude that the detective couldn't see what he said he saw from where he was standing.” 12  RP (January 28, 2002) at 55.   There is nothing on the record to support Aase's claim that Alloway was unable to see the back door from an area where he had a right to be.

Aase also argues pro se that evidence should be suppressed because the June 12, 2001 “knock and talk” visit was pretextual and, therefore, Alloway had no right to be on the property where he saw the items that suggested methamphetamine manufacturing.   Aase does not cite authority for this argument, other than to refer to “appellate courts” generally.   Without argument or authority to support it, an assignment of error is waived.  Smith v. King, 106 Wash.2d 443, 451-52, 722 P.2d 796 (1986).

The search warrant was supported by probable cause.

Ineffective Assistance of Counsel

Next, Aase contends pro se that he received ineffective assistance of counsel and argues that the facts of Walker v. Caldwell, 476 F.2d 213 (5th.   Cir.1973), are “strikingly similar” to the present case.

To show ineffective assistance, an appellant must show that counsel's performance was deficient and that the deficient performance prejudiced him.   State v. Thomas, 109 Wash.2d 222, 225-26, 743 P.2d 816 (1987).   Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness.  State v. Stenson, 132 Wash.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008, 118 S.Ct. 1193, 140 L.Ed.2d 323 (1998).   Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have been different.  In Re Personal Restraint Petition of Pirtle, 136 Wash.2d 467, 487, 965 P.2d 593 (1998).   There is great judicial deference to counsel's performance, and our analysis begins with a strong presumption that counsel was effective.   Strickland v. Washington, 466 U.S. 668, 689-90, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);  State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995).

Where, as here, the claim is brought on direct appeal, we limit our review to matters contained in the trial record.  State v. Crane, 116 Wash.2d 315, 335, 804 P.2d 10, cert. denied, 501 U.S. 1237, 111 S.Ct. 2867, 115 L.Ed.2d 1033 (1991).   Accord State v. Stockton, 97 Wash.2d 528, 530, 647 P.2d 21 (1982) (matters referred to in the brief but not included in the record cannot be considered on appeal).

Walker is not similar.   There, a state-appointed attorney who handled pleas free of charge, talked with his illiterate client for about five minutes before the attorney signed off on his guilty pleas, and his client was sentenced to 30 years on 11 counts.   The attorney did not investigate the facts of the case, talk to any witnesses, seek a motion to suppress, or engage in any plea bargaining.   Further, the attorney testified that he followed a different practice with his paying clients.  Walker, 476 F.2d at 215.

Here, Aase's counsel moved to suppress evidence and strenuously argued Aase's position at the suppression hearing and then again on reconsideration.   From this record, his actions appear strategically calculated and indicate that he was cognizant of the fact that the State may have been holding back more serious drug charges.   Indeed, although Aase was on electronic home detention, he only received a 30-day sentence for this offense.   Counsel's tactics appear to have benefited Aase. While Aase complains that his attorney did not spend enough time preparing the case and that he called no witness on his behalf, Aase has failed to indicate how these actions prejudiced him. And although Aase correctly points out that he was the one who brought the United States v. Gantt, 194 F.3d 987 (9th Cir.1999), case to the court's attention, and that his counsel did not have a citation for the case at the suppression hearing, the trial court did consider Gantt at the reconsideration hearing and rejected the argument that the case required suppression.13

On this record, Aase has not shown that his counsel was ineffective.

Admissibility of Statements

Finally, Aase contends pro se that detectives improperly questioned him after he asked for an attorney.   But, as the State points out in its reply to his pro se supplemental brief, Aase stipulated that he was read Miranda14 warnings and that he understood them and wished to speak to the investigating officer.   Thus, the record does not support this claim.

We therefore affirm.

FOOTNOTES

1.   At the earlier January 28 suppression hearing, the court allowed Aase to speak, and he argued that Gantt was on point, but apparently he did not have a citation for the case.   The judge was unable to locate a citation for the case at that time.

2.   Aase's standard sentencing range was 0-60 days.

3.   The Fourth Amendment states “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”   U.S. Const. amend.   IV. Washington Constitution Article I, section 7, provides:  “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”   Wash. Const. art.   I, § 7.

4.   That rule read:  “[t]he officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken.”   Former Fed.R.Crim.P. 41(d) (2000).   The current version of the rule reads:The officer executing the warrant must:(A) give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken;  or(B) leave a copy of the warrant and receipt at the place where the officer took the property.Fed.R.Crim.P. 41(f)(3).

5.   State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986).

6.   See State v. Copeland, 130 Wash.2d 244, 283, 922 P.2d 1304 (1996) (where defendant's blood and hair samples taken pursuant to warrant, holding that even if defendant had consulted with his attorney before samples taken, the attorney could have done nothing but advise the defendant to submit to the valid warrant;  and had the warrant been invalid, the remedy would have been suppression).

7.   Spinelli v. United States, 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).

8.   Article 1, section 7 provides greater protection of personal privacy rights than the Fourth Amendment.   See, e.g., State v. Mendez, 137 Wash.2d 208, 970 P.2d 722 (1999);  State v. Stroud, 106 Wash.2d 144, 720 P.2d 436 (1986).

9.   See State v. Wolken, 103 Wash.2d 823, 827, 700 P.2d 319 (1985) (basis of knowledge test was satisfied because the informant claimed to have personally observed marijuana and was passing on firsthand knowledge);  State v. Creelman, 75 Wash.App. 490, 495, 878 P.2d 492 (1994) (in a case where citizen informant who had accidentally entered the wrong apartment and seen marijuana plants, “it appears that an informant's basis of knowledge is sufficiently established in an affidavit if it states that the informant ․ personally saw marijuana plants or obtained other information firsthand.   No additional information about the informant's ability to recognize marijuana was required”).

10.   He did apparently look into her background, as the complaint for search warrant states:  “Theresa is a resident of Kitsap County, has no criminal record involving deceit, perjury or falsification and has a past personal history of methamphetamine use.”   Exhibit 1 at 3.

11.   Innocuous details do not remedy a deficiency under either the basis of knowledge or the veracity prong.  Jackson, 102 Wash.2d at 438, 688 P.2d 136;  Rodriguez, 53 Wash.App. at 574, 769 P.2d 309.

12.   Alloway stated on cross-examination that he saw the jars “probably after the conversation” (RP (January 28, 2002) at 16), or after his June 12, 2001 visit.   The questioning continued as follows:[Kuehn]:  So [you saw them] as you were walking away, because you parked south of his residence?[Alloway]:  Yes. It's very open.[Kuehn]:  You saw these where, specifically, on his property?[Alloway]:  ․ From the sidewalk I could see the back door.   It sits on the south side of the house, and I could see the trash can next to the back door, and the jars along the wall right there.RP (January 28, 2002) at 16-17.

13.   Aase also points out that his attorney failed to inform him of the reconsideration hearing.   This argument does not appear in the record and is not before this court.

14.   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

QUINN-BRINTNALL, C.J.