Personal Restraint Petition Of: Chris M. Mcnicholas

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of No. 53926-8-II
the Personal Restraint of
CHRIS MARION McNICHOLAS, UNPUBLISHED OPINION
Petitioner.
MAXA, J. – In this personal restraint petition (PRP), Chris McNicholas seeks relief from
personal restraint imposed following his convictions of first degree theft, first degree identity
theft, and nine counts of forgery. The convictions related to allegations that McNicholas had
taken thousands of dollars from an elderly woman by forging several of her checks under the
guise of providing home improvements. Law enforcement obtained a warrant to search
McNicholas’s vehicle after the arresting officers observed documents related to his unlicensed
contracting business. McNicholas asserts that he received ineffective assistance of counsel.
We hold that McNicholas did not receive ineffective assistance because defense counsel
was not deficient for (1) failing to move to suppress the documents recovered from
McNicholas’s vehicle where the search warrant affidavit established probable cause to conclude
McNicholas was involved in defrauding elderly victims and that evidence of that scheme would
be in his vehicle, (2) failing to move to suppress evidence recovered from McNicholas’s vehicle
based on RCW 10.105.010 because admissibility is not dependent on law enforcement’s
Filed
Washington State
Court of Appeals
Division Two
October 6, 2020

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compliance with RCW 10.105.010, and (3) failing to request a Franks1 hearing because probable
cause supported the warrant even without the affiant’s drug evidence observations.
Accordingly, we deny McNicholas’s PRP.
FACTS
Investigation and Arrest
Between April and September 2014, McNicholas cashed or deposited 19 checks from
Caryl Hitt totaling $52,495. McNicholas stated that he had a contract with Hitt for $70,330 to
work on her roof and to install new windows in her home. He claimed that these checks were
advance payments under the contract, which required a down payment of $35,000. However,
McNicholas never performed any work on Hitt’s house. At the time of trial, Hitt was 90 years
old.
An employee at Hitt’s bank became alarmed over the checks written to McNicholas
because they were inconsistent with Hitt’s spending habits. In addition, the signatures on many
of the checks did not resemble Hitt’s signature. The employee alerted Hitt and her daughter
about the issues with the checks and put a freeze on Hitt’s account. She also contacted law
enforcement and adult protective services. In addition, Hitt’s daughter obtained a civil
protection order prohibiting McNicholas from having contact with Hitt.
Cowlitz County Deputy Brady Spaulding applied for and obtained a search warrant for
McNicholas’s truck. In searching the vehicle, he found hundreds of documents, including bank
records, letters, and manila folders associated with McNicholas’s clients. He found folders
associated with Betsy Miller, an 89-year-old named Helen McGinnis, an 87-year-old named
Shinae Lane, and Hitt. He also found drug-related evidence.
1 Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

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The folders associated with Miller, McGinnis, and Lane contained contracts between
McNicholas’s company, Pacific Coast Vinyl, and each customer. These folders also each
contained various other documents, including specification sheets, schematics, receipts, invoices,
customer notices, and letters. The folder pertaining to Hitt contained a contract signed by Hitt
and McNicholas and a protection order protecting Hitt from McNicholas. There were no other
documents in the folder.
Trial, Conviction, and Appeals
The State charged McNicholas in Clark County with first degree theft, first degree
identity theft, contracting without a license, and nine counts of forgery. It also charged
aggravating factors that the victim was particularly vulnerable or incapable of resistance and that
the crime was a major economic offense or series of offenses on each count except contracting
without a license. McNicholas was not charged with any drug-related offenses in Clark County.
McNicholas pled guilty to contracting without a license and went to jury trial on the other 11
counts.
The State sought to admit the folders associated with Miller, McGinnis, and Lane
obtained from McNicholas’s vehicle in their entirety, including contracts, invoices, receipts for
purchases of materials, drawings of the proposed work including measurements, and copies of
warranties and disclaimers provided to the customer. Defense counsel objected to the admission
of the documents in the folders on a number of theories, including hearsay, relevance, ER
404(b), and ER 406. However, defense counsel did not move to suppress the evidence on the
ground that the search warrant was invalid.
The trial court admitted redacted versions of only the contracts between Pacific Coast
Vinyl and Miller, McGinnis, and Lane over McNicholas’s objection. The trial court instructed

No. 53926-8-II
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the jury that it could consider the evidence only for the purpose of determining whether or not it
tended to show McNicholas’s knowledge as to the crime of first degree theft in this case and not
for any other purpose.
The State did not attempt to introduce any of the drug evidence discovered in the search
of McNicholas’s vehicle.
The jury found McNicholas guilty on all counts. McNicholas appealed his convictions,
and this court affirmed. State v. McNicholas, No. 49363-2-II, (Wash. Ct. App. May 30, 2018)
(unpublished), https://www.courts.wa.gov/opinions/ pdf/D2%2049363-2-
II%20Unpublished%20Opinion.pdf. The Supreme Court denied his petition for review. State v.
McNicholas, 191 Wn.2d 1017, 426 P.3d 747 (2018).
PRP Evidence
McNicholas filed a timely PRP. Attached to the PRP was (1) Spaulding’s affidavit
supporting the search warrant for McNicholas’s vehicle, (2) the search warrant for McNicholas’s
vehicle, (3) the tow/impound and inventory record for McNicholas’s vehicle, (4) the Cowlitz
County Sheriff’s vehicle intake form for McNicholas’s vehicle, (5) the Cowlitz County Sheriff’s
notice of seizure and intended forfeiture for McNicholas’s vehicle, and (6) a declaration from
McNicholas.
Spaulding’s January 24, 2015 search warrant affidavit stated that: (1) McNicholas
recently had been arrested after he represented himself as a contractor to a 91-year-old woman
and took thousands of dollars from her under the guise of providing home improvements; (2)
McNicholas had been charged with first degree criminal impersonation, second degree theft, and
third degree theft; (3) a man had contacted the sheriff’s office on January 23, 2015 to complain
that in November 2014, McNicholas had taken over $300 for a window inspection and to patch a

No. 53926-8-II
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roof leak without completing the work; (4) McNicholas’s two companies lacked business
licenses; (5) the officer who arrested McNicholas observed numerous files and documents for
one of his unlicensed companies inside his vehicle at the time of arrest; (6) the arresting officer
also saw documents in the vehicle for a Mrs. Wright, an elderly woman who told the officer that
McNicholas had done work for her in 2006 and then a few days earlier, McNicholas had
convinced her she needed new windows and collected her check for $1,000, which she later
cancelled; (7) at the arrest, another officer observed on the vehicle’s floor a piece of foil with
several black streaks on it that appeared to be heroin paraphernalia, a clear plastic container in
the center console containing a substance that appeared to be crystal methamphetamine, and
hypodermic needles inside a container on the front seat; and (8) in 2014 McNicholas was
arrested for a fraud scheme where he posed as a contractor to obtain money from elderly
individuals for alleged home improvement repairs or inspections.
Spaulding sought and obtained a search warrant to search McNicholas’s vehicle for
documents associated with McNicholas’s businesses, documents linking McNicholas to his
vehicle, documents and records related to McNicholas’s fraud scheme, and drug evidence.
McNicholas stated in his PRP declaration that before law enforcement seized and towed
his vehicle, an officer opened the closed center console. He also stated that when his son (who
was present at his arrest) asked to retrieve a closed container on the vehicle’s front seat, law
enforcement opened and looked inside that container before allowing McNicholas’s son to take
it. McNicholas stated that he had not given his permission for law enforcement to open either
container.
In addition, McNicholas stated in his declaration that his defense counsel told him that
because the search warrant for his vehicle had been issued in another county, it had to be

No. 53926-8-II
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addressed in that county. McNicholas asserted that there was no tactical reason for his defense
counsel to not move to suppress the documents seized from his vehicle and later admitted at trial.
ANALYSIS
A. LEGAL BACKGROUND
1. PRP Principles
We will grant appropriate relief when petitioners establish that they are under restraint
that is unlawful for one of certain specified reasons. RAP 16.4(a)-(c). However, a PRP is not a
substitute for a direct appeal, and the availability of collateral relief is limited. In re Pers.
Restraint of Dove, 196 Wn. App. 148, 153, 381 P.3d 1280 (2016). A collateral challenge to a
conviction involves an extraordinary remedy, and therefore we will not disturb a settled
judgment unless the petitioner meets a high standard. Id.
To prevail in a PRP, a petitioner must establish (1) a constitutional error that resulted in
actual and substantial prejudice, or (2) a fundamental defect of a nonconstitutional nature that
inherently resulted in a complete miscarriage of justice. Id. at 154. The petitioner must make
this showing by a preponderance of the evidence. Id.
RAP 16.7(a)(2) requires a petitioner to specifically identify the evidence available to
support the factual allegations in the PRP. In re Pers. Restraint of Wolf, 196 Wn. App. 496, 503,
384 P.3d 591 (2016). The petitioner must show that he has competent, admissible evidence to
establish facts that would entitle him to relief. In re Pers. Restraint of Yates, 177 Wn.2d 1, 18,
296 P.3d 872 (2013). Conclusory allegations are insufficient. Wolf, 196 Wn. App. at 503. In
addition, the factual allegations must be based on more than speculation and conjecture. Yates,
177 Wn.2d at 18.

No. 53926-8-II
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The State suggests that a PRP must be based on more than self-serving declarations. In
some situations, a petitioner’s bare allegations are not enough to satisfy his or her burden of
proof. See State v. Buckman, 190 Wn.2d 51, 69, 409 P.3d 193 (2018) (stating that the petitioner
must present more than a bare allegation that he would not have pleaded guilty but for
misinformation about his sentence). However, the declaration of a petitioner can support a PRP
if based on personal knowledge. See In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 481, 965
P.2d 593 (1998) (considering whether petitioner’s declaration claiming that a witness had
pressed petitioner for a confession after police encouraged the witness to do so established
sufficient evidence of a violation of the right to counsel).
We have three options when considering a PRP. First, if a petitioner does not show
actual prejudice for constitutional errors or a fundamental defect resulting in a miscarriage of
justice for nonconstitutional errors, the petition must be dismissed. Yates, 177 Wn.2d at 17.
Second, if the petitioner has proved actual prejudice or a fundamental defect resulting in a
miscarriage of justice, the court should grant the PRP. Id. at 18. Third, if the petitioner makes at
least a prima facie showing but the merits of his or her contentions cannot be resolved solely on
the record, the court should remand for a full hearing on the merits or a reference hearing. Id.
2. Ineffective Assistance of Counsel
Ineffective assistance of counsel is a constitutional error, arising from the Sixth
Amendment to the United States Constitution and article I, section 22 of the Washington
Constitution. See State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). To prevail on an
ineffective assistance claim, the defendant must show both that (1) defense counsel’s
representation was deficient and (2) the deficient representation prejudiced the defendant. Id. at
457-58. Representation is deficient if, after considering all the circumstances, it falls below an

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objective standard of reasonableness. Id. at 458. Prejudice exists if there is a reasonable
probability that, except for counsel’s errors, the result of the proceeding would have been
different. Id.
We apply a strong presumption that defense counsel’s performance was reasonable. Id.
Counsel’s conduct is not deficient if it was based on what can be characterized as legitimate trial
strategy or tactics. Id. To rebut the presumption that counsel’s performance was effective, “the
defendant bears the burden of establishing the absence of any ‘conceivable legitimate tactic
explaining counsel’s performance.’ ” State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011)
(quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).
The “reasonable probability” standard for prejudice in an ineffective assistance of
counsel claim is not precisely the same as the “actual and substantial prejudice” standard in a
PRP. In re Pers. Restraint of Crace, 174 Wn.2d 835, 842, 280 P.3d 1102 (2012). However, a
petitioner who presents a successful ineffective assistance of counsel claim necessarily
establishes actual and substantial prejudice for purposes of collateral relief. Id. at 846-47.
B. FAILURE TO CHALLENGE PROBABLE CAUSE SUPPORTING SEARCH WARRANT
McNicholas argues that his defense counsel was ineffective for failing to move to
suppress evidence of the documents obtained in the search of his vehicle on the basis that the
warrant affidavit failed to establish probable cause to conclude that the vehicle contained
evidence of financial fraud and related offenses. We disagree.
1. Legal Principles
The Fourth Amendment to the United States Constitution provides that “no warrants shall
issue, but upon probable cause, supported by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.” This amendment was designed to

No. 53926-8-II
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prohibit “general searches” and to prevent “ ‘general, exploratory rummaging in a person’s
belongings.’ ” State v. Perrone, 119 Wn.2d 538, 545, 834 P.2d 611 (1992) (quoting Andresen v.
Maryland, 427 U.S. 463, 480, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976)). Similarly, article I,
section 7 of the Washington Constitution provides that “[n]o person shall be disturbed in his
private affairs, or his home invaded, without authority of law.”
A warrant can be issued only if supported by probable cause. State v. Lyons, 174 Wn.2d
354, 359, 275 P.3d 314 (2012). “Probable cause exists when the affidavit in support of the
search warrant ‘sets forth facts and circumstances sufficient to establish a reasonable inference
that the defendant is probably involved in criminal activity and that evidence of the crime may be
found at a certain location.’ ” State v. Ollivier, 178 Wn.2d 813, 846-47, 312 P.3d 1 (2013)
(quoting State v. Jackson, 150 Wn.2d 251, 264, 76 P.3d 217 (2003)). There must be “a nexus
between criminal activity and the item to be seized and between that item and the place to be
searched.” State v. Neth, 165 Wn.2d 177, 183, 196 P.3d 658 (2008). Affidavits in support of a
search warrant are examined in a commonsense instead of hypertechnical manner, and doubts are
to be resolved in favor of the warrant. Ollivier, 178 Wn 2d at 847.
Admission of evidence obtained through a warrant that violates constitutional
requirements is an error of constitutional magnitude. State v. Keodara, 191 Wn. App. 305, 317,
364 P.3d 777 (2015). An error of constitutional magnitude is harmless “if, in light of the entire
trial record, we are convinced that the [factfinder] would have reached the same verdict absent
the error.” State v. Romero-Ochoa, 193 Wn.2d 341, 348, 440 P.3d 994 (2019), petition for cert.
filed, No. 20-5114 (U.S. July 21, 2020).

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2. No Deficient Performance
Defense counsel need not make every possible motion to suppress. State v. Nichols, 161
Wn.2d 1, 14, 162 P.3d 1122 (2007). In the context of failing to file a motion to suppress,
defense counsel’s performance will only be considered deficient if the defendant can show that
the trial court likely would have granted the motion. State v. D.E.D., 200 Wn. App. 484, 490,
402 P.3d 851 (2017). “[T]here is no ineffectiveness if a challenge to admissibility of evidence
would have failed.” Nichols, 161 Wn.2d at 14-15. Therefore, defense counsel may legitimately
decline to move for suppression on a particular basis if the motion is unfounded. Id. at 14.
First, McNicholas argues that defense counsel should have moved to suppress the
documents seized from his vehicle because Spaulding asserted in the search warrant affidavit
that the arresting officer saw documents related to Wright in the vehicle. He argues that these
documents could not support probable cause of a financial crime because the alleged transaction
with Wright occurred in 2006, beyond the statute of limitations. He also argues that assertions in
the affidavit regarding his more recent interaction with Wright, allegedly convincing her
sometime in January 2015 that she needed new windows and collecting her check for $1,000, did
not support probable cause that a crime had occurred.
As stated above, probable cause exists when the affidavit in support of the search warrant
provides facts and circumstances sufficient to create a reasonable inference that the defendant is
probably involved in a crime and that evidence of the crime may be found in a certain place.
Ollivier, 178 Wn.2d at 846-47. And where strong factual similarities exist between a
defendant’s criminal record and the current charges, criminal history can contribute to a probable
cause determination. State v. Maddox, 152 Wn.2d 499, 512, 98 P.3d 1199 (2004) (stating that

No. 53926-8-II
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the suspect’s prior convictions for a crime of the same general nature may be used in determining
probable cause).
Here, even if charges relating to McNicholas’s conduct in 2006 were beyond the statute
of limitations, the affidavit also provided that Wright (age 75) told police that just a few days
earlier, McNicholas had contacted her to convince her she needed new windows and collected
her check. When Wright cancelled the check, McNicholas called her again and offered to drive
her to an ATM to withdraw the money.
And the affidavit contained other information not related to Wright. The affidavit further
provided that McNicholas recently had been arrested and charged for defrauding a 91-year-old
woman. In addition, a man had complained to law enforcement that in November 2014
McNicholas had taken over $300 without completing the work he promised to do. McNicholas’s
contracting businesses were unlicensed. The officers who arrested McNicholas saw documents
related to McNicholas’s unlicensed business in McNicholas’s vehicle. And in 2014 McNicholas
was arrested for a fraud scheme where he posed as a contractor to obtain funds from elderly
individuals. Together, these facts established a reasonable inference that McNicholas was
involved in defrauding elderly victims through his unlicensed contracting business and that
evidence of that scheme would be found in his vehicle among the related documents.
Second, McNicholas argues that the search warrant affidavit contained numerous hearsay
statements that cannot be the basis for a finding of probable cause. He appears to contend that
every assertion in Spaulding’s affidavit not based on his personal knowledge cannot support a
finding of probable cause.
Mere conclusory predictions cannot support a finding of probable cause. State v. Thein,
138 Wn.2d 133, 147, 977 P.2d 582 (1999). But probable cause “may be based on hearsay, a

No. 53926-8-II
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confidential informant’s tip, and other unscrutinized evidence that would be inadmissible at
trial.” State v. Chenoweth, 160 Wn.2d 454, 475, 158 P.3d 595 (2007). Probable cause “requires
not certainty but only sufficient facts and circumstances to justify a reasonable belief that
evidence of criminal activity will be found.” Id. at 475-76. Even where the information
provided to the affiant later turns out to be inaccurate or false, a probable cause determination
will not be affected “if the affiant had reason to believe those facts were true.” Id. at 476.
Here, Spaulding’s affidavit relied on his conversation with the man who accused
McNicholas of stealing $300 from him, his conversation with the officer who had arrested
McNicholas, the arresting officer’s conversation with Wright about her dealings with
McNicholas, and the statements of another officer who was present at McNicholas’s arrest.
McNicholas does not point to any evidence suggesting that Spaulding did not have reason to
believe that the facts provided to him and included in his affidavit were not true. “Generally,
affidavits based upon observations of law officers are considered a reliable basis for the issuance
of warrants.” State v. Matlock, 27 Wn. App. 152, 155, 616 P.2d 684 (1980). And in this context,
“[c]itizen informants are deemed presumptively reliable.” State v. Gaddy, 152 Wn.2d 64, 73, 93
P.3d 872 (2004). Therefore, these statements cannot be excluded from a probable cause
determination simply because they are hearsay.
Third, McNicholas appears to claim that defense counsel failed to move to suppress the
evidence obtained from his vehicle not as a strategy or tactic, but because she believed that since
the search warrant for his vehicle had been issued in another county, it had to be addressed in
that county. The search warrant for McNicholas’s vehicle was issued by Cowlitz County, but the
charges against McNicholas in this case were filed in Clark County. Even if defense counsel
was deficient for this reason, McNicholas still must show that a motion to suppress likely would

No. 53926-8-II
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have been granted. State v. Walters, 162 Wn. App. 74, 81, 255 P.3d 835 (2011). As discussed
above, because the search warrant affidavit set forth sufficient facts to establish probable cause,
the trial court would not have granted the motion to suppress, and therefore McNicholas cannot
establish that he was prejudiced by counsel’s conduct.
We conclude that defense counsel’s failure to file a motion to suppress based on probable
cause was not deficient because such a challenge to the admissibility of the evidence would have
failed. See Nichols, 161 Wn.2d at 14-15. Therefore, we hold that McNicholas’s ineffective
assistance of counsel claim on this basis fails.
C. FAILURE TO CHALLENGE EVIDENCE BASED ON VIOLATION OF RCW 10.105.010
McNicholas argues that defense counsel was ineffective for failing to challenge the
admission of evidence obtained as a result of the search warrant on the basis that the seizure of
his vehicle was unlawful under RCW 10.105.010. We disagree.
1. Legal Principles
Under RCW 10.105.010(1), a defendant’s vehicle that was used “in the commission of,
or in aiding or abetting in the commission of [,] any felony” is “subject to seizure and forfeiture.”
Law enforcement may seize personal property subject to forfeiture under RCW 10.105.010 upon
process issued by any superior court having jurisdiction over the property. RCW 10.105.010(2).
“Seizure of personal property without process may be made if . . . [t]he law enforcement officer
has probable cause to believe that the property was used or is intended to be used in the
commission of a felony.” RCW 10.105.010(2)(d). The State also must meet certain procedural
requirements under RCW 10.105.010(3)-(5), such as giving the owner proper notice.

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2. No Deficient Performance
McNicholas argues that the seizure of the vehicle was unlawful under RCW
10.105.010(2)(d) because law enforcement did not have probable cause to conclude that the
vehicle was used in the commission of any felony. He claims that because evidence that is the
product of an unlawful search or seizure is not admissible, defense counsel was ineffective for
failing to challenge the admission of the evidence from his vehicle on this basis.
But even assuming law enforcement lacked probable cause to conclude that
McNicholas’s vehicle was used in the commission of a felony, McNicholas fails to provide any
authority linking the admissibility of evidence at trial to law enforcement’s compliance with
RCW 10.105.010. Further, when an officer has probable cause to believe that a vehicle contains
contraband or evidence of crime, the officer may seize and hold the vehicle for the time
reasonably needed to obtain a search warrant and conduct a subsequent search. State v. Huff, 64
Wn. App. 641, 653, 826 P.2d 698 (1992). Law enforcement may do so by towing the vehicle to
a police station or an impound yard. Id.
Here, the arresting officers saw documents related to McNicholas’s unlicensed business
and what appeared to be drug-related items in McNicholas’s vehicle at the time of his arrest.
Following McNicholas’s arrest, his vehicle was towed and impounded pending the issuance of
the search warrant.
We conclude that McNicholas’s counsel’s performance was not deficient for failing to
file a motion to suppress based on a violation of RCW 10.105.010 because such a challenge
would have failed. See Nichols, 161 Wn.2d at 14-15. Therefore, we hold that McNicholas’s
ineffective assistance of counsel claim on this basis fails.

No. 53926-8-II
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D. FAILURE TO REQUEST FRANKS HEARING
McNicholas argues that his counsel was ineffective for failing to request a Franks
hearing on the basis that the search warrant affidavit contained material omissions that
undermined the finding of probable cause of a drug offense. We disagree.
1. Legal Principles
In Franks, the United States Supreme Court held that after a search warrant has been
issued, a defendant is entitled to an evidentiary hearing (a “Franks hearing”) regarding the
veracity of factual allegations in the search warrant affidavit if (1) the defendant makes a
substantial preliminary showing that the affiant knowingly and intentionally or with reckless
disregard for the truth included a false statement in the warrant affidavit, and (2) the allegedly
false statement is necessary to the finding of probable cause. 438 U.S. at 154, 155-56, 98 S. Ct.
2674, 57 L. Ed. 2d 667 (1978). This test also applies to material omissions of fact. Chenoweth,
160 Wn.2d at 469.
The defendant must show that an omission in a search warrant affidavit was both
intentional and material to be entitled to a Franks hearing. See State v. Garrison, 118 Wn.2d
870, 872-73, 827 P.2d 1388 (1992). At the Franks hearing, if the defendant is successful in
proving the material omissions by a preponderance of the evidence, the trial court must include
the omissions and determine whether the modified affidavit still supports a finding of probable
cause. Ollivier, 178 Wn.2d at 847. If it does not, the warrant is invalidated and the evidence is
suppressed. Id.
2. No Deficient Performance
McNicholas argues that Spaulding’s search warrant affidavit contained two omissions:
(1) the arresting officer opened without McNicholas’s permission the center console of

No. 53926-8-II
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McNicholas’s vehicle to observe the white crystals located there, and (2) the arresting officer
opened without McNicholas’s permission the closed container on the front seat of the vehicle to
observe that it contained several hypodermic needles. McNicholas contends that defense counsel
was ineffective for failing to request a Franks hearing on the basis of these omissions.
However, the State never sought to admit drug evidence recovered from McNicholas’s
vehicle at trial, and the jury heard no testimony related to McNicholas’s drug possession.
Because no drug evidence was introduced, the only issue is whether the alleged omissions would
have prevented issuance of the entire warrant. A Franks hearing does not result in an invalidated
warrant or suppression of evidence where the warrant would have been issued even without the
misstatements and omissions. See Ollivier, 178 Wn.2d at 847-48; Garrison, 188 Wn.2d at 874.
Here, the search warrant was supported by probable cause even without Spaulding’s
reference to the drug evidence. As discussed above, the affidavit created a reasonable inference,
independent of the drug evidence observations, that McNicholas was defrauding elderly victims
and that evidence of that scheme would be found in his vehicle. Therefore, any request defense
counsel made for a Franks hearing based on the alleged omissions would not have resulted in an
invalidated warrant or the suppression of any evidence admitted at trial.
To rebut the strong presumption that counsel’s performance was effective, the defendant
must show that no conceivable legitimate tactic can explain counsel’s performance. Grier, 171
Wn.2d at 42. Here, any request McNicholas’s trial counsel made for a Franks hearing based on
the alleged omissions would not have resulted in an invalidated warrant or the suppression of any
evidence admitted at trial. Therefore, McNicholas cannot demonstrate that his trial counsel’s
failure to request a Franks hearing constituted deficient performance.

No. 53926-8-II
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We conclude that defense counsel was not ineffective for failing to request a Franks
hearing because any omissions would not have affected the probable cause to search for
McNicholas’s files and documents. Therefore, we hold that McNicholas’s ineffective assistance
of counsel claim on this basis fails.
CONCLUSION
We deny McNicholas’s PRP.
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.
MAXA, J.
We concur:
LEE, C.J.
GLASGOW, J.