State Of Washington, Appellant V. Kevin W. Cox, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48315-7-II
Appellant,
v.
KEVIN WALLACE COX, UNPUBLISHED OPINION
Respondent.
SUTTON, J. — The State of Washington appeals the trial court’s order suppressing evidence
following a Franks1 hearing and effectively terminating the State’s case against Kevin Wallace
Cox. In addition to responding to the State’s appeal, Cox argues that we should decline to consider
the State’s appeal and dismiss his charge with prejudice because the trial court violated his time-
for-trial rights by failing to either dismiss the charge or stay the trial pending this appeal. We hold
that (1) Cox has failed to show that there was a time-for-trial violation that precludes us from
considering this appeal and (2) the trial court erred when it granted the suppression motion.
Accordingly, we reverse the trial court’s decision suppressing the firearm evidence following the
Franks hearing and remand this matter to the trial court for further proceedings.
1 Franks v. State of Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
Filed
Washington State
Court of Appeals
Division Two
January 31, 2017

No. 48315-7-II
2
FACTS
I. BACKGROUND FACTS
On May 25, 2015, officers from the Forks Police Department contacted Kevin Cox after
he had been released from the Forks Community Hospital. The officers were informed that Cox
was suicidal, that he “possibly possessed a gun” at his apartment, and that he was walking back to
his apartment at “Sarge’s Place.”2 Clerk’s Papers (CP) at 9-10 (FF 1-3). At some point, the
officers were also informed that the manager from Sarge’s Place had advised someone that Cox
had a gun, that the manager believed it was in Cox’s car, and that others from Sarge’s Place were
sitting on the car’s trunk and had planned to try to “prevent [Cox] from getting into the trunk and
accessing the gun.”3 CP at 25.
The officers attempted to contact Cox, but he was uncooperative. The officers eventually
restrained Cox, and he was returned to the hospital. At the hospital, Cox told Officer Donald
Ponton that he (Cox) had an air rifle and an air pistol in his car and that he had sold all of his real
firearms. But when Ponton told Cox that he planned to get a warrant to search the car, Cox told
Ponton there could be two 9 mm magazines in the car. After Ponton asked Cox whether he still
had the guns that used the magazines, Cox responded that “he wasn’t sure, but that they might be
under the front seat.” CP at 25. Cox also revealed that he was a convicted felon.
Ponton obtained a telephonic search warrant for Cox’s vehicle to search for a firearm.
During the search, the officers found a firearm in the vehicle.
2 Sarge’s Place is a shelter for homeless veterans.
3 It is not clear from the record when the officers obtained this information.

No. 48315-7-II
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II. PROCEDURAL FACTS
A. FRANKS HEARING
The State charged Cox with second degree unlawful possession of a firearm. Cox moved
to suppress the firearm evidence under Franks. At the Franks hearing, the trial court listened to a
recording of Ponton’s telephone conversation with the judge who issued the search warrant,
reviewed Ponton’s arrest report, and heard testimony from Ponton.
The recorded conversation with Judge Wood, who issued the search warrant, was played
in court:
OFFICER: Okay, so today we came in contact with an individual. His name is
Kevin Cox. We got reports that he was suicidal and he had just left the hospital
and [was] released from the hospital and was heading back to his apartment on foot.
I [came] in contact with him, walking down the middle of the road, asked if he
would speak with me. He was very agitated and refused to speak with me. So, I
was walking behind him, trying to get him to talk. We had information that he had
a gun, possibly in his possession or at his apartment. So, we walked behind him,
trying to get him to comply or to talk to us and he wouldn’t. Asked if he had any
weapons and he brandished a knife that was open, opened blade knife. I warned
him that I would tase him. He put his hands up and then reached for the knife and
we tased him and took him into custody. He didn’t assault me with the knife or
anything like that. We got him over to the hospital and after talking with him over
at the hospital for awhile [sic], he said he has a gun in his car. He’s got two air
guns; an air rifle and an air pistol, but then later on he said he might have a 9
millimeter in his car as well. He is a convicted felon, so he’s unable to have those
in his possession, I’m trying to get into his car. If I can get into it, it’s [a] Toyota
Corolla, bearing license plate, ARJ9170, any containers in there or the trunk, any
areas that could contain rifles or guns. So, that’s what I’m looking for.
JUDGE: Okay, you’ve confirmed that [he has] a prior conviction, felony
conviction?
OFFICER: Yeah, Deputy Pursley has had dispatch run him. He is a felon.
JUDGE: Okay and he’s admitted he’s got a possible firearm in his vehicle then,
huh?

No. 48315-7-II
4
OFFICER: Yeah, he said it would be under the front seat, the front driver’s seat,
if he did have it. He said there are magazines in the trunk and then in the trunk
there would be a gun.[4]
. . . .
JUDGE: Okay, well, I find there’s probable cause for it, so you can sign my name,
George Wood, to the warrant.
Verbatim Report of Proceedings (October 28, 2015) (VRP) at 35-37 (emphasis added).
Ponton’s arrest report describes the information the officers had received from the manager
of Sarge’s Place and Ponton’s conversations with Cox at the hospital. In this report, Ponton stated
that Cox had first told him that he had an air rifle and an air pistol in his car and that he had sold
his “regular firearms.” When Ponton told Cox that he planned to get a warrant, Cox told Ponton
there could be two 9 mm magazines in the car. After Ponton asked Cox whether he still had the
guns that used the magazines, Cox responded that “he wasn’t sure, but that they might be under
the front seat.”
Ponton’s testimony was consistent with his statements in his arrest report. Ponton testified
that Cox initially told him that there were two air guns in his car and that he thought he “might
have sold the other regular guns,” but that Cox eventually said he “might have some 9 millimeter
magazines and that if he did have the guns, it would be under the front seat.” VRP at 12. Ponton
then testified:
4 The “draft” transcript prepared by the Forks Police Department differs from the Verbatim Report
of Proceedings of the recording as it was played in court. The “draft” states, “Yes, he said it would
be under the front seat front driver seat if he did have it he said there are magazines in the truck
[sic] and in the front seat so that would be it[.]” CP at 23. The actual recording is not part of our
record, so we cannot verify which version is correct.

No. 48315-7-II
5
Referring, in my line of thinking, I’m thinking 9 millimeter magazines don’t fit in
air rifles, so when [he] said the guns would be under the front seat, I assumed that
there were 9 millimeter pistols under the front seat and then that’s—basically, that’s
what I based my probable cause for the search warrant off of.
VRP at 12.
The State asked Ponton, “Okay and in your remembrance, is that your basis for the probable
cause is that what you believed you said to the judge in your asking for a search warrant?” VRP
at 13. Ponton responded,
Yeah, I told the judge that we had prior information that he had a gun and that he
was gonna hurt himself, he’s gonna kill himself and that he did tell me that he had
a gun in his car and that it would be under the front seat or possibly had a gun in
in his car, it’d be under the front seat.
VRP at 13 (emphasis added).
On cross examination, Ponton admitted that he did not know why the manager from Sarge’s
Place thought Cox had a gun in his car. He also admitted that Cox had told him that he had sold
all of his “regular” firearms. VRP at 21.
Cox’s counsel then questioned Ponton about what he said to Judge Wood. Ponton admitted
he had not told Judge Wood that Cox said he had sold all of his “actual firearms.” VRP at 25.
Ponton also admitted he told Judge Wood that Cox said he might have a 9 millimeter in his car.
Cox’s counsel then asked how Ponton responded when Judge Wood asked him if Cox “has a
possible firearm in his vehicle then?” VRP at 25. Ponton stated that Judge Wood used the word
“possible,” and that he (Ponton) responded, “Yes.” VRP at 25-26.
Cox’s counsel then asked Ponton if he had ever clarified that Cox never actually said he
had a gun in his car and that he said only that he might have guns in his car. Ponton responded, “I

No. 48315-7-II
6
think that’s what—wasn’t that just what that said? I thought that that’s what that said, is that he
said there are possible guns under the seat.” VRP at 26.
Cox’s counsel then asked Ponton if he had testified earlier that he had assumed there was
a 9 mm pistol under the front seat because of what Cox said about the magazines. Ponton
responded, “Yes, I assumed it would be a 9 millimeter.” VRP at 26. The following discussion
then occurred:
[Defense Counsel]: Okay, so when you said that he has a gun in his car and also
the air pistol and the air rifle, that statement was based on your assumption that he
had a gun because he told you he had the 9 millimeter magazines?
[Ponton]: Yes, as well as, that he said that if he had them, the gun, referring to the
guns, if he had the guns it [sic] would be under the front seat.
VRP at 26.
The trial court then questioned Ponton about his statement to Judge Wood that Cox said he
had a gun in his car. The trial court referred to the portion of the telephonic affidavit stating, “[H]e
said that he has a gun in his car, two air guns; and air rifle and pistol, and then later on said he
might have a 9 millimeter in his car.” VRP at 30. The court then asked, “So, when you said the
phrase, ‘He said that he has a gun in his car,’ and then you describe two air guns; air rifle and air
pistol. I guess I’m asking you, why you use the phrase, ‘that he said he has a gun in his car.’”
VRP at 30.
Ponton responded, “Because he said that he may have the guns under his front seat and
so—the pistol under his front seat and so I said it that way. I didn’t—it wasn’t a—I don’t know
why other than that, that he said he had it under his front seat or that he may have it under his front
seat.” VRP at 30. Ponton then stated, “I thought I later clarified that.” VRP at 31.

No. 48315-7-II
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The court responded:
Yeah, and I’m gonna go on with that, because later then even Judge Wood, who
responded to you and asked a question in the affidavit. He said, quote, “So, he
admitted that he has a possible firearm in his vehicle then, huh?” unquote. And
then you made a response, “He said it would be under the front seat, front driver
seat, if he did have it.”
Okay, so that’s a correct representation of Judge Wood’s question to you
and then you said, “If he did have it.”
VRP at 31. Ponton responded, “Right.” VRP at 31.
B. FINDINGS OF FACT AND CONCLUSIONS OF LAW
The trial court suppressed the firearms and issued written findings of fact and conclusions
of law:
FINDINGS OF FACT
1. Kevin Cox was contacted by Forks Police Officers after they received a
report that Mr. Cox had been released from the Forks Hospital, that he was suicidal
and that he possibly possessed a gun. At the hearing, it was not clear who was the
source of this information; and in the affidavit of Officer Ponton to Judge Wood by
telephone on May 25, 2015, at 1:19 a.m., the Officer did not indicate the above but
simply said that he had reports that Cox is released from the hospital, that he was
suicidal and headed back to his apartment on foot.
2. Upon the officer’s contacting Cox, Cox did not wish to speak with the
officers, that he was headed home and was close to “Sarge’s Place” where he
resided and that he was on his cell phone talking to his mother. Mr. Cox did not
threaten the officers nor assault them.
3. Officer Ponton and Officer Pursley continued to walk behind him to try
to get him to talk to them. Ponton indicated he had information that Cox might
possibly have a gun in his possession or at his apartment, but where that information
came from was not apparent in the affidavit. While they walked behind him trying
to “get him to comply or talk to us,” he was asked if he had a weapon. He said,
“What do you think, I’m a vet” and then “displayed a knife” pursuant to that
request. In the affidavit to the Judge, Officer Ponton used the phrase “he brandished
a knife” but then in testimony and in his police report indicated in response to the

No. 48315-7-II
8
question about weapons that he pulled a knife from his pocket, held it in the air and
then put the knife back in his pocket.
4. Despite having never assaulted or threatening the officers and the officer
admitting in the affidavit that “he didn’t assault me with the knife or anything like
that,” Mr. Cox was tased, put in a choke hold and taken back to the hospital from
which he had just been released.
5. Officer Ponton in testimony indicated that a Kep Kepler from Sarge’s
Place said that he thought Mr. Cox had a gun and persons from Sarge’s were sitting
on the trunk of Mr. Cox’s car to ensure that he could not access his car when he got
home. This information was not included in the information provided to the
magistrate in the affidavit.
6. In the affidavit, Officer Ponton stated, “we got him over to the hospital
and uh after talking to him at the hospital for a while he said he has a gun in his car,
two air guns, an air rifle and air pistol and then later on said that he might have a
9mm in his car as well [as] he is a convicted felon.”
7. In testimony at the hearing, Officer Ponton acknowledged that Mr. Cox
never said “that he has a gun in his car.” In fact when asked if he had any guns in
the car, Mr. Cox stated that he had an air rifle and an air pistol; in regard to firearms,
he said “no I sold them all”; and in regard to why the officer told the magistrate that
“he said that he has a gun in his car,” Officer Ponton testified that he assumed this
because on further questioning at the hospital Mr. Cox after being told by the officer
that he was getting a search warrant for Mr. Cox’s car that Cox indicated there
might be two 9mm magazines under the front seat.
8. In the affidavit to the magistrate, Office Ponton specifically stated “then
later on he said he might have a 9mm in his car.” Officer Ponton indicated he said
this because he assumed anyone who still had magazines would still have a weapon.
9. When the magistrate (Judge Wood) questioned the Officer during the
telephonic affidavit whether Cox admitted he had a firearm in his vehicle, Officer
Ponton said yes.
10. Throughout the hearing, there was no testimony from Officer Ponton
that Mr. Cox said he had a firearm in his car.
11. The magistrate found probable cause for a search of the Toyota Corolla
at 1:23 a.m. on May 25th based on Officer Ponton’s assertions to the magistrate
that Cox said he had a gun in his car and nowhere in the taped affidavit for search
warrant was there any information for the magistrate as to any statements from

No. 48315-7-II
9
witnesses or Kep Kepler or any hospital personnel supporting the Officer’s
conclusionary statement in the taped affidavit that “we had information that he had
a gun possibly in his possession or at this apartment.”
CONCLUSIONS OF LAW
. . . .
In the case at bar the defense maintains that the affidavit to obtain the
warrant contains false and conclusionary statements. In this case, the Officer in his
affidavit stated at least on two occasions within the brief taped statement to the
magistrate that Mr. Cox said he had a gun in the car. Based on Officer Ponton’s
own testimony, what he maintain [sic] to the Judge in the affidavit was not true. It
is argued by the State that this was not an intentional or reckless falsehood. The
case of State v. Stephens, 37 Wn. App. 76[,] 67[8] P.2d 832 (1984)[,] is helpful in
this analysis. In that case, officers in their affidavit for search warrant state that
they “observed” the defendant watering marijuana plants despite the actual facts
being that the officers saw the defendant go into an area where marijuana plants
were and the police later determined that they had been watered. The truth is that
no actual observation took [place]. In Stephens then this information needed to be
excised from the warrant because “When the Officer neglected to list the facts and
circumstances which led to that conclusion, the Officer usurped the function of the
detached and impartial magistrate. This he cannot do. The untrue statement of the
affiant in that case, that the defendant was actually seen watering the plants, was
the single most pervasive fact in the affidavit that would establish probable cause
to issue the warrant.” In the case at bar, the single most pervasive fact in the
affidavit that the Officer recited to the magistrate was that on at least two occasions
in his statement he claimed that Mr. Cox admitted that he has a gun in his car. No
actual statement was made by Mr. Cox to allow the Officer to make that rather
specific conclusion and the remedy for such a misstatement with reckless disregard
of the facts is to excise the offending language. State v. Sweet, 23 Wn. App. 97,
596 P.2d 1080 (1979). In the case at bar, the defendant was entitled to a hearing
because there was an initial showing of a misrepresentation by the officer and in
testimony before the court Officer Ponton admitted that his conclusions that Cox
“said he had a gun in his car” were false. The magistrate issued the warrant based
on at least two times in the affidavit where the officer maintained that Mr. Cox
admitted that he had a firearm in the vehicle when those statements are clearly
untrue and were made in reckless disregard of the truth and were not the actual
statements and underlining [sic] circumstances that would be needed to support
probable cause. After the court excises these conclusionary statements put forward
by the officer to the magistrate, this court cannot find that after excising these
reckless conclusions that there was enough probable cause contained in the affidavit
for search warrant to justify it.

No. 48315-7-II
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Further, in reviewing the validity of any warrant we may consider only
information before the magistrate at the time the warrant was issued. Seattle v.
Leach, 29 Wn. App. 81, 627 P.2d 159 (1981). The information provided by the
officer during testimony concerning bystanders or other persons at Sarge’s Place or
the statements of Kep Kepler cannot be include in this analysis because they were
not presented to the magistrate at the time of the issuance of the warrant. As stated
in State v. Stephens, “the integrity of the judicial process demands at the very least
that the information provided be truthful if the magistrate’s authority is to be
respected and appropriately fostered. To hold otherwise would undermine the
entire warrant procedure.”
. . . .
Therefore, the trial court in excissing [sic] what the court sees as false
material in the search warrant affidavit finds that the search warrant should be
voided and will exclude the fruits of the search of the Toyota Corolla that was
subject of this warrant.
CP at 9-15 (emphasis added). The trial court later issued an order clarifying the findings of fact
and conclusions of law on the Franks hearing, stating that the November 4, 2015 decision “has the
effect of suppressing the firearm from evidence and therefore has the practical effect of terminating
the State’s case.” CP at 46.
The State appeals the trial court’s ruling granting the Franks motion and suppressing the
firearm.
ANALYSIS
I. TIME-FOR-TRIAL ISSUE
As a preliminary matter, Cox argues that we should decline to consider the State’s appeal
and dismiss the unlawful possession of a firearm charge with prejudice because the trial court
violated his time-for-trial rights by failing to either dismiss the charge or stay the trial pending this

No. 48315-7-II
11
appeal. The State responds that the time for trial is tolled when the appeal is accepted for review.
We agree with the State.
Generally, a defendant who is not detained in jail shall be brought to trial within 90 days
of the commencement date.5 CrR 3.3(b)(2). The initial commencement date is the date of
arraignment. CrR 3.3(c)(1). But the commencement date can be reset upon the occurrence of
certain events. The relevant event here is the acceptance of review of the State’s appeal.
CrR 3.3(c)(2) provides:
On occurrence of one of the following events, a new commencement date shall be
established, and the elapsed time shall be reset to zero. If more than one of these
events occurs, the commencement date shall be the latest of the dates specified in
this subsection.
. . . .
(iv) Appellate Review or Stay. The acceptance of review or grant of a stay
by an appellate court. The new commencement date shall be the date of the
defendant’s appearance that next follows the receipt by the clerk of the superior
court of the mandate or written order terminating review or stay.
(Emphasis added). Cox does not assert that the time-for-trial period expired before we accepted
review of the State’s appeal. Thus, he does not establish a time-for-trial violation.
Citing State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (1995), Cox does, however, appear to
assert that the commencement date does not reset under CrR 3.3(c)(2) unless the trial court
dismisses the charge without prejudice or stays the trial date. But he cites no authority establishing
that the trial court must stay the trial date to be entitled to the benefit of CrR 3.3(c)(2). Nor does
Olson support the conclusion that the trial court must dismiss the charge to trigger CrR 3.3(c)(2).
5 It appears that Cox was not in jail following the Franks hearing.

No. 48315-7-II
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In Olson, “[t]he State filed a motion, affidavit and order of dismissal, apparently so the
State could appeal the suppression order under RAP 2.2(b)(1).” 126 Wn.2d at 317 (citation
omitted). The trial court granted the motion and dismissed the charges. Olson, 126 Wn.2d at 317.
The State then appealed the dismissal, which was based on the trial court’s suppression of
evidence. Olson, 126 Wn.2d at 317-18. Far from stating that dismissal of the charge was required
in order to obtain review, our Supreme Court questioned whether dismissal of the charge in order
to obtain review under RAP 2.2(b)(1) was necessary given that RAP 2.2(b)(2) “allows [for] an
appeal of a pretrial suppression order ‘if the trial court expressly finds that the practical effect of
the order is to terminate the case.’” Olson, 126 Wn.2d at 317 n. 1 (quoting RAP 2.2(b)(2)). Thus,
Olson does not support Cox’s claim that the trial court was required to dismiss the case before the
State could benefit from the new commencement date under CrR 3.3(c)(2).
Cox also asserts that although the Olson court stated that courts will overlook minor
technical violations of the rules of appellate procedure if there is no prejudice to the other party
and only minimal inconvenience to the court, the procedural violation here was not minor and
resulted in prejudice to Cox because he remained under conditions of release. But the Olson court
was commenting on the State’s failure to append the suppression order it was attempting to appeal
to its notice of appeal and was not commenting on the proper way to appeal an order suppressing
evidence and preserve time for trial. And Cox does not assert that the State failed to append the
correct document to its notice of appeal or that the notice of appeal was somehow not adequate to
allow for acceptance of review.
Because Cox fails to show a time-for-trial violation, we now turn to the State’s appeal.

No. 48315-7-II
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II. SUPPRESSION ORDER
The State argues that the trial court erred when it (1) found that Ponton “stated in the
affidavit for the warrant, in unqualified terms, that Mr. Cox admitted there was a firearm in the
vehicle,”6 (2) concluded that Ponton made these statements with reckless disregard for the truth,
and (3) concluded that Judge Wood relied on the alleged false statements to find probable cause.7
Br. of Appellant at 15-16. Even presuming that Ponton stated in the warrant affidavit that Cox
admitted there was a firearm in the vehicle and that this statement was made in reckless disregard
6 This argument relates to the trial court’s findings of fact 8 and 9, and portions of the trial court’s
conclusions of law, to which the State assigns error. Br. of Appellant at 1-4 (Assignments of Error
1-6). Throughout the conclusions of law, the trial court stated that Ponton told Judge Wood that
Cox said he had a gun in his car at least two times. These statements are more properly
characterized as factual findings, so we consider them as such here. State v. Marcum, 24 Wn. App.
441, 445, 601 P.2d 975 (1979) (findings of fact mischaracterized as conclusions of law are treated
as findings of fact).
Cox asserts that the State did not assign error to finding of fact 7, so the trial court’s finding
that Ponton told Judge Wood that Cox said he had a gun in his car is a verity on appeal. Br. of
Resp’t at 6. But finding of fact 7 addresses why Ponton believed that Cox had a gun in his car
and, although it mentions the trial court’s belief that Ponton said that Cox had a gun in his car, is
not an express finding that Ponton actually said this. Findings 8 and 9, and portions of the
conclusions of law contain the finding of fact at issue here. Thus, we do not consider the State’s
failure to assign error to finding of fact 7 as a verity establishing that Ponton said that Cox had a
gun in his car.
7 Cox asserts that the State is also challenging the portion of finding of fact 11 in which the trial
court found that there was a gun “possibly in [Cox’s] possession or at his apartment.” Br. of Resp’t
at 9. Although the State assigns error to finding of fact 11, it does not argue that this portion of
the finding was incorrect. See Br. of Appellant at 4 (Assignment of Error 7). Additionally, Cox
concedes that this potential error was not critical to Judge Wood’s decision. Thus, we do not
address this portion of finding of fact 11.

No. 48315-7-II
14
for the truth, we hold that the remaining statements supported Judge Wood’s decision to issue the
warrant and, therefore, the trial court erred when it concluded that the search warrant was invalid.8
If a trial court determines that a search warrant affidavit contains deliberate material
falsehoods or that there were deliberate material omissions and that these falsehoods or omissions
were made in reckless disregard for the truth, then the trial court must excise any material
falsehoods and insert any material omissions, and then determine whether the altered affidavit is
sufficient to establish probable cause. State v. Clark, 143 Wn.2d 731, 753, 24 P.3d 1006 (2001)
(citing State v. Garrison, 118 Wn.2d 870, 873, 827 P.2d 1388 (1992)); see also State v. Chenoweth,
160 Wn.2d 454, 469, 158 P.3d 595 (2007). Here, even if we presume that (1) Ponton stated that
Cox had admitted he had a gun in his car and (2) Ponton made this false statement with reckless
disregard for the truth, and after the offending information is excised, the search warrant
application established probable cause.
Probable cause exists where there are 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.
It is only the probability of criminal activity, not a prima facie showing of it, that
governs probable cause. The magistrate is entitled to make reasonable inferences
from the facts and circumstances set out in the affidavit.
State v. Maddox, 152 Wn. 2d 499, 505, 98 P.3d 1199 (2004) (citations omitted). Here, the
remaining facts would have shown that Cox had stated there were 9 mm magazines in the vehicle
and that there was possibly a firearm in the vehicle under the front seat. Based on the presence of
8 Cox appears to also argue that there was a material omission in Ponton’s statement to Judge
Woods because Ponton failed to tell Judge Woods that Cox had initially stated he sold all of his
guns. Br. of Resp’t at 8. But the trial court did not find that this was a material omission and Cox
has not filed a cross appeal, so we do not address this argument.

No. 48315-7-II
15
the magazines and Cox’s admission it was possible there was a firearm in the vehicle, Judge Wood
could have reasonably inferred that there was a probability that a gun in Cox’s vehicle, which,
given Cox’s prior felony conviction, was a crime. Because the facts supported probable cause
even with the challenged statements excised, the superior court erred when it granted the Franks
motion and suppressed the firearm.
Accordingly, we reverse the trial court’s ruling granting Cox’s Franks motion and
suppressing the firearm evidence and remand for further proceedings.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
WORSWICK, P.J.
LEE, J.