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State v. Fellows

February 3, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
CHARLES HENRY FELLOWS, APPELLANT.



Appeal from Superior Court of King County. Docket No: 93-1-04043-8. Date filed: 01/25/94. Judge signing: Hon. Leroy McCullough.

Authored by C. Kenneth Grosse. Concurring: Walter E. Webster, Susan R. Agid.

The opinion of the court was delivered by: Grosse

GROSSE, J. -- Charles Fellows appeals his conviction of drug possession *fn1 claiming that the trial court erred by failing to suppress all evidence obtained by a binocular search of his residence. He also challenges the search of his house. We affirm and hold that the trial court did not err by deciding that evidence obtained from a mobile surveillance of Fellows and a search of his van were not "fruits" of the binocular-enhanced observations because independent factors (an informant's credible tip) caused the police to follow and search his van. Moreover, the affidavit and independent observations provided sufficient evidence to establish a nexus between Fellows' suspected drug conspiracy activities and his residence.

As a result of a confidential informant's tip, the Seattle police began actively investigating the suspected drug trafficking activities of Charles Fellows. An informant, who was providing information to avoid possession charges, said he was part of a group of people who distributed one to three kilograms of cocaine a week for Fellows. The informant told the police that Fellows frequently went to California, purchasing eight to ten kilograms of cocaine a trip. According to the informant, a very large man would drive Fellows to California in a rented mini van. The informant provided other details of Fellows' operations, including identifying Fellows' house.

On the evening of June 16, 1993, several police officers were observing Fellows' residence. Fellows entered his residence carrying a red and white plastic bag. Through binoculars Detective Hawkes observed him counting large amounts of currency from the bag. Shortly after that, Fellows' driver, Timothy Jackson, arrived and the two men left, with Fellows carrying a suitcase. The two men rented a mini van, and proceeded south on I-5, with Jackson driving. At the Thurston-Pierce County line, police pulled over Fellows and Jackson. In a search incident to arrest, the police discovered $114,000 in a plastic bag located in Fellows' suitcase. The police then obtained a search warrant for his residence where they discovered cocaine.

At the suppression hearing, Fellows challenged the use of binoculars to survey the house and argued that the affidavit prepared by Detective Emerick in support of probable cause was inadequate to justify a search of his residence. The court ruled that use of the binoculars "during surveillance of the interior of the Fellows' residence constituted a violation of Fellows' reasonable expectation of privacy" because it was "neither reasonable nor feasible for Detective Hawkes, while on surveillance, to have seen into the window of the Fellows' residence without the aid and use of binoculars." As the remedy, the court suppressed references to observations made by Detective Hawkes using the binoculars, namely that Fellows was counting small bundles of currency. After excising the binocular derived evidence, the trial court concluded that there remained "a sufficient nexus between the activities of Mr. Fellows, . . . in the affidavit . . . and the Fellows' residence, that both narcotics and the indicia of narcotics trafficking would likely be found inside the Fellows' residence" and concluded that there were sufficient facts in the affidavit to support a finding of probable cause to search the residence. Fellows claims that the police surveillance of him as he rented a van and traveled on I-5, his arrest, and the search of the van "clearly was a result of the search with binoculars" and, therefore, should have been suppressed. *fn2 All evidence obtained through exploitation of an illegal search must be suppressed as "'fruit of the poisonous tree.'" *fn3 But if the evidence gathered is "sufficiently attenuated from the original illegality, then it may be admitted." *fn4 If there are intervening independent factors in the chain of causation from the original illegality to the evidence at issue, or if there is an independent source for the evidence, that evidence need not be excluded. *fn5 Here, the police officers who were staking out Fellows' residence would have continued investigating Fellows even without knowledge of the currency. The events of the evening matched what the confidential informant said would happen. Based on the tip, the police believed that Fellows was going to California to purchase cocaine.

Fellows does not challenge the use or the veracity of the informant's tip. *fn6 The affidavit demonstrates both the credibility of the informant and the basis of his beliefs. Claiming he was one of five people who regularly distributed cocaine for Fellows, the informant directed the police to Fellows' address, provided his phone number, described several cars that Fellows owned, and provided information about Fellows' driver. A few days after the informant's arrest, he met with police and turned over 832 grams of cocaine that he claimed he received from Fellows. Additionally, the informant provided information about where gang members were selling cocaine. The police made controlled buys from these locations, resulting in six arrests. Under these circumstances, the police were entitled to rely on the information from the informant to establish probable cause. This was an independent source of untainted evidence.

Fellows does not specifically dispute the stop of the van, other than claiming the van was stopped because of information gathered through the use of binoculars. This is not a case of where, but for the tainted actions, the police would not have gathered the necessary evidence to use in the warrant for probable cause. Rather, there were independent reasons to stop the van and the trial court did not err by allowing the information gathered from the stop of the van and the mobile surveillance to remain in the affidavit.

Fellows also claims the excised search warrant affidavit was insufficient to establish probable cause to believe that evidence of a crime would be found at Fellows' residence, arguing that the information provided by the confidential informant linked drug activity only to his cars or his mother's home, and not his own residence.

An affidavit is sufficient to establish probable cause for a search if it contains facts from which an ordinary, prudent person would conclude that a crime had occurred and there was evidence of the crime to be found at the location to be searched. *fn7 Facts must exist in the affidavit that establish a nexus between the house to be searched and the evidence sought. The "'nexus may be established either through direct observation or through normal inferences as to where the articles sought would be located.'" *fn8 "Thus, a nexus is established between a suspect and a residence if the affidavit provides probable cause to believe the suspect is involved in drug dealing and the suspect is either living there or independent evidence exists that the suspect may be storing records, contraband, or other evidence of criminal activity at the residence." *fn9 The facts here go beyond mere suspicion and personal belief that evidence of a crime would be found at Fellows' residence. Fellows asserts there was only stale evidence to demonstrate that he was involved in drug activities, pointing out that there was evidence that Fellows did not currently have a supply of drugs and was not returning calls to people who paged him. Fellows' argument is without merit; this information merely confirmed the informant's tip that Fellows would be going to California to obtain more cocaine soon.

This is not a case, like Dalton upon which Fellows relies on, in which the connection between the residence and the suspected drug activities was too tenuous to support probable cause. *fn10 There are facts establishing that Fellows was involved in drug activities and these activities were linked to his residence.

According to the affidavit, the confidential informant pointed out Fellows' residence. As the surveillance revealed, the driver came to Fellows' house and Fellows left the house with a suitcase that was later found to contain $114,400 in cash. The fact that Fellows was found with $114,400 supports an inference that he was involved in criminal activity and the fact that it originated from his home provide the nexus with his home.

Additionally, the officer stated in the affidavit that narcotic traffickers often hid narcotics, paraphernalia, and business evidence of narcotics transactions in their houses. Although Fellows contends that Detective Emerick's affidavit is too speculative, the detective provided the basis for his knowledge and the trial Judge was justified in considering these facts. *fn11 Given these facts, we reject Fellows' argument that it was necessary that drug activity actually be observed at Fellows' home. Considering all the facts in the affidavit, we agree with the trial court that there was probable cause to search the residence.

Fellows also claims that the trial court erred by denying his motion to suppress reference to the pictures taken from a 24-hour video surveillance of his residence. On June 10, 1993, six days before the stakeout, the police set up a 24-hour video camera from across the street to watch Fellows' residence. It was directed toward the garage and the walkway to the front door. According to the affidavit, pictures revealed Fellows coming and going from the residence, his cars, and Fellows carrying a plastic bag. These pictures were still shots taken from the videotapes. The trial ...


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