Opinion
Court of Appeals No. A-10480.
November 9, 2011.
Appeal from the Superior Court, Third Judicial District, Palmer, Kari Kristiansen, Judge, and William L. Estelle, District Court Judge, Trial Court No. 3PA-07-2371 CR.
Michael Jude Pate, Assistant Public Defender, Sitka, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Alaska State Troopers visited Kiel Cavitt's house to execute an arrest warrant on Cavitt's brother. They noticed signs they attributed to a commercial marijuana operation, including the odor of growing marijuana, covered windows, a vented and padlocked shipping container, and Pro-Mix fertilizer bags. They also found that Cavitt's house had an abnormally high electrical usage. A judge issued a search warrant based on these observations, and the troopers discovered a substantial marijuana operation inside the house. Cavitt argues that the fruits of the search should have been suppressed. We conclude that the search warrant application showed probable cause to believe that Cavitt was growing marijuana for commercial purposes.
Cavitt also argues that he should have received a sentence concurrent with an unrelated Anchorage case so that his aggregate sentence would not exceed ten years. We conclude that Cavitt is relying on outdated authority and that his sentence was not clearly mistaken.
Background
Alaska State Troopers visited Cavitt's house in Houston on August 31, 2007, in an attempt to serve an arrest warrant on his brother, Andrew Cavitt. The troopers had received an anonymous tip that Cavitt and his brother were staying at the house and growing marijuana. The tipster also reported that a safe in the house contained drugs and a large quantity of cash — between $20,000 and $65,000.
When the troopers arrived at Cavitt's house, no one answered the door. But Sergeant Patrick Davis could smell the odor of growing or recently harvested marijuana coming from the house. Davis also observed numerous signs of a commercial marijuana operation. All but one of the front windows was covered in plywood sheets and the remaining window was covered in black plastic sheeting. There was condensation on the plastic sheeting. A large amount of Pro-Mix fertilizer lay on the ground along with spray bottles. Davis also noticed a padlocked shipping container with makeshift vents.
Sergeant Davis called Investigator Mike Ingram from the troopers' Mat-Su Drug Unit and relayed his observations about Cavitt's house. Ingram then prepared an affidavit in support of an application for a search warrant. Ingram included his personal background and training, technical information about marijuana cultivation, and observations he had made concerning marijuana grows during the course of his police career.
Ingram explained that he researched the power usage at Cavitt's house and determined that Kiel Cavitt's name was on two different electrical accounts assigned to that location. He compared the electrical usage of Cavitt's house in Houston to the usage of houses owned by co-workers and former co-workers in Wasilla. He included detailed information about the sizes of the houses, the number and age of the occupants, and a list of various electrical appliances contained in the houses. The co-workers' houses consumed far less electricity than Cavitt's house. Ingram compared the power requirements of a common commercial grow operation, including 1,000-watt grow lights, fluorescent bulbs, and large fans, to Cavitt's residence and concluded that the residence probably contained more than twenty-five marijuana plants that would produce "well over" four ounces of processed marijuana.
Investigator Ingram stated that he had never smelled marijuana being grown for personal use on the air outside a residence because there is simply not enough plant material involved in a personal grow operation. He also stated that personal grow operations do not need to employ fans to vent the excess heat, so the odor of growing marijuana is not transferred to the outside air.
Ingram's affidavit also included the observations that Sergeant Davis made at the house. Ingram noted that Davis had been a trooper for seventeen years, that he had been assigned to the narcotics unit, and that Ingram knew that Davis recognized the smell of growing marijuana.
While Ingram was writing the affidavit, the troopers detained a man identified as Daniel Monson who climbed out of a window of Cavitt's house and attempted to flee. A records check revealed that Monson had a drug conviction and was an associate of Kiel Cavitt. Ingram included this information in the affidavit.
After allowing Monson to leave the scene, officers heard more noises inside the house and decided to enter to prevent evidence from being destroyed. The noises were actually being made by two pit bulls, and one dog had to be shot. The information about this entry was not included in the warrant affidavit.
Based on Ingram's affidavit, District Court Judge William Estelle issued a search warrant. Troopers executed the warrant and discovered thirty-two live marijuana plants and over three pounds of processed marijuana, along with small quantities of hashish, LSD, ecstasy, morphine, psilocybin mushrooms, and $2,771 in cash.
Cavitt was indicted on fourteen drug offenses. He filed a motion to suppress the evidence found at his house, arguing that the search warrant application contained insufficient evidence to support a finding of probable cause. Superior Court Judge Kari Kristiansen concluded that Ingram's affidavit showed probable cause that Cavitt was operating a commercial marijuana operation.
Cavitt proceeded to trial and a jury found him guilty on all fourteen counts. Cavitt asked the court to run his sentence concurrently with a pending Anchorage case so that the total sentence would not exceed ten years. The sentencing court denied Cavitt's request. Cavitt received a composite sentence of ten years' imprisonment with no time suspended in this case, running consecutively to the eighteen months imposed in his Anchorage case. Cavitt now appeals. Discussion The search warrant affidavit stated probable cause to support the warrant.
This court must afford "great deference" to the determination of probable cause by the original judge or magistrate who issued the warrant. We must "resolve marginal cases in keeping with the traditional preference accorded to warrants." In evaluating a police officer's affidavit in support of a search warrant under this deferential standard of review, "we must read the affidavit . . . in a commonsense and realistic fashion, considering the affidavit in its entirety instead of dissecting it into isolated bits and pieces of information."
See State v. Koen, 152 P.3d 1148, 1151 n. 6 (Alaska 2007) (noting that substantial basis review is more deferential than ordinary de novo review).
Id. at 1151.
Id. (quoting Massachusetts v. Upton, 466 U.S. 727, 732 (1984)) (internal quotations marks omitted).
In State v. Crocker, this court considered "what the State must prove in order to obtain a warrant to enter and search a person's home for evidence of marijuana possession." We held that the State's warrant application must specifically address why the State has probable cause to believe the suspect possesses an amount of marijuana that exceeds the constitutionally protected amount ( i.e., four ounces). Most relevant to this case, we found that simply smelling the odor of cultivating marijuana from outside a residence is not enough to establish probable cause that the amount of marijuana being grown exceeds four ounces. And we held that when evaluating a suspect residence's electrical usage for evidence of criminal activity, a simple statement that the house had "higher than average" electrical consumption is insufficient to establish that there was a commercial marijuana operation inside.
97 P.3d 93, 94 (Alaska App. 2004).
Id.
Id. at 97-98.
Id. at 98.
Cavitt makes a number of arguments about why the warrant affidavit in this case was insufficient. Cavitt first contends that there is a "reasonable possibility" that Sergeant Davis did not actually smell marijuana until he was inside the house. This fact would undermine Investigator Ingram's assertion that it must have been a commercial grow because Davis smelled the marijuana outside the house. But this argument is premised on a strained reading of the warrant affidavit.
The pertinent text of the affidavit reads as follows:
While Sgt. Davis was at the residence, an attempt was made to make contact with Andrew Cavitt, but no one would answer the door. In the attempt to make contact with the suspect, Sgt. Davis could smell the odor of either cultivating or recently harvested marijuana coming from the residence.
Eight paragraphs later, Investigator Ingram mentions Monson's attempted escape.
As explained earlier, after Monson attempted to escape from the house, officers heard more noises inside the house and decided to enter to prevent evidence from being destroyed. The noises were actually being made by two pit bulls, and one dog had to be shot. Cavitt would have us read the affidavit in a way that suggests Sergeant Davis might only have smelled marijuana after he made this warrantless entry. But Ingram's affidavit suggests that Sergeant Davis's attempt to make contact with Andrew Cavitt happened just before he smelled the odor of marijuana. Judge Estelle could reasonably have interpreted this text to mean that Sergeant Davis smelled marijuana outside the house upon his initial arrival.
Cavitt also argues that the affidavit fails to show probable cause because the affidavit did not indicate "Sgt. Davis's personal success rate at smelling [a] commercial amount of growing marijuana." He argues that the affidavit established no direct link between the officer's ability to smell marijuana and the probability that the home contained evidence of a commercial grow. But Investigator Ingram stated that Davis knew what marijuana smells like because he had been a trooper for over seventeen years, that he spent time as the supervisor of the Mat-Su Drug Unit, and that he was involved with investigations of over 500 commercial grows. And Ingram explained that he (Ingram) had "never smelled the odor of packaged marijuana or personal use marijuana stored in someone's house[] on the outside air." The judge could reasonably rely on this information to evaluate Davis's ability to recognize the the smell of growing marijuana outside Cavitt's house.
Ingram's affidavit stated that all of the house's front windows were covered in plywood except one, which was covered in black plastic sheeting. The sheeting had condensation on it. Cavitt claims that Judge Kristiansen concluded that this evidence was consistent with growing marijuana in the home, but did not make a clear finding that the evidence was consistent with a commercial grow. When we review the sufficiency of a warrant affidavit, however, we are reviewing the decision of the issuing judge or magistrate — in this case, Judge Estelle. The conclusions that Judge Kristiansen reached when she ruled on Cavitt's motion to suppress are essentially irrelevant to this review.
See State v. Conway, 711 P.2d 555, 557 (Alaska App. 1985).
Cavitt also argues that the windows could have been covered as a sleep aid to guard against the midnight sun. But Judge Estelle was not required to rely on this possibility. The judge could reasonably conclude that this unusual practice suggested that Cavitt was growing marijuana inside.
Cavitt also argues that the affidavit w as ambiguous w hen it stated that "Sgt. Davis saw a large amount of Pro-Mix lying on the ground." Cavitt claims that this statement can be interpreted to mean that the Pro-Mix was actually found on the ground in the crawl space in the house, since police did discover Pro-Mix in the crawl space when they executed the search warrant. Cavitt therefore argues that Davis observed the Pro-Mix in the crawl space when he made his initial, warrantless entry into the house, and then relayed that information to Ingram, who included it in the affidavit in a way to make it sound like the Pro-Mix was actually found outside the house. Once again, this is a strained reading of Ingram's affidavit.
It appears that Investigator Ingram wrote the information about this case in chronological order. He started with information about the anonymous tip and explained how Sergeant Davis tried unsuccessfully to contact Cavitt's brother. He then explained that Davis smelled marijuana and observed the covered windows. He next reported that Davis saw "Pro-Mix lying on the ground," along with observations about the vented, padlocked storage container. He then explained his research on the house's electrical consumption.
Several paragraphs later, Ingram mentions that, while he was writing this search warrant application, Monson tried to escape from the house. Davis made his initial entry only after the troopers detained Monson. Read in a commonsense way — in chronological order — the affidavit suggests that the Pro-Mix was observed as soon as Davis arrived at the house, and not much later when the police entered the house in an effort to stop what they believed was the destruction of evidence.
Cavitt next contests the affidavit's statements regarding the electrical usage at Cavitt's house. He argues that there were three flaws concerning electrical usage: (1) it was improper to call Cavitt's house's usage higher than "average" because it was compared to only two other houses, which is too small of a sample size; (2) the affidavit does not explain what training or experience Investigator Ingram had to allow him to make an informed opinion concerning "average" electricity usage for various-sized houses; and (3) the affidavit did not state how much higher than "average" Cavitt's electrical usage was.
These arguments do not require us to ignore the information about electrical usage. Judge Estelle only needed to find that the house's electrical usage was higher than what would be expected for a house of that size in order to consider this evidence. The affidavit compared Cavitt's house to two larger houses and stated that Cavitt's house had significantly higher electrical consumption. Standing alone, this may not be enough to show probable cause, but it was evidence that could be considered with the other evidence in the warrant affidavit that suggested that Cavitt was growing marijuana.
See Carter v. State, 910 P.2d 619, 625 (Alaska App. 1996) ("[U]tility records showing unusual electrical consumption have no inherent incriminatory value.").
See Koen, 152 P.3d at 1151 ("[W]e must . . . consider[] the affidavit in its entirety instead of dissecting it into isolated bits and pieces of information."(quoting Upton, 466 U.S. at 732) (internal quotation marks omitted)).
Cavitt's second argument — that Investigator Ingram did not explain his training to be able to evaluate average electrical usage — fails because comparing the square footage and electrical consumption of two houses did not require any special training or skill. In Crocker, the officer simply provided information from the utility company about average electrical usage. The officer then relied on his "training and experience" to say that Crocker's house exceeded average usage, without explaining what his relevant training and experience actually consisted of. But Investigator Ingram did not rely solely on generic data from the utility company; he compared Cavitt's house to two known entities. No special training was required to explain that a house with less square footage had far higher electrical usage than two other houses in the same area.
Id.
Cavitt's final argument — that the affidavit did not state how much higher than average Cavitt's electrical usage actually was — fails for the same reason. Ingram gave concrete examples of other houses in the Mat-Su Valley and showed that they had far lower electrical usage despite being larger and containing young children. The affidavit stated that Cavitt's house used more electricity than would be expected for a house of its size by comparing it to known entities. The judge could properly consider this information in finding probable cause.
Cavitt argues that evidence of Monson's attempted escape from Cavitt's house "lends little support to establishing probable cause." But there is an obvious inference that a person trying to escape a house when approached by police has something to hide. The judge properly considered this evidence to determine whether the affidavit stated probable cause.
There is considerably more information in Ingram's affidavit. But we conclude that the foregoing information was sufficient to establish probable cause. Judge Estelle could reasonably conclude that the odor of marijuana on the outside air, the covered windows, the fertilizer on the ground, the high electrical usage, and Monson's attempt to flee the residence together raised a fair chance that there was a commercial marijuana operation inside Cavitt's house.
Cavitt's consecutive sentences are not excessive.
Cavitt was convicted of third-degree assault in 2006 for shooting a man. He was still on probation for this offense when he was arrested for driving under the influence and possession of psilocybin mushrooms in Anchorage in May 2007. Cavitt was out on bail release for these Anchorage offenses at the time he committed the offenses in this case.
There was no dispute that Cavitt had a prior felony conviction for sentencing purposes. Therefore, the presumptive sentencing range for second-degree misconduct involving a controlled substance, his most serious offense, was ten to fourteen years' imprisonment. Cavitt asked the court to refer his case to the three-judge sentencing panel based on his exceptional prospects for rehabilitation. But the court concluded that Cavitt was ineligible for this referral because he was on felony probation when he committed his current offenses.
See AS 12.55.125(c)(3). This conviction was for possession of morphine with the intent to manufacture or deliver. AS 11.71.020(a)(1); AS 11.71.140(b)(1)(M).
See AS 12.55.155(c)(20); AS 12.55.165(b).
Judge Kristiansen imposed the minimum sentence in the presumptive range for Cavitt's most serious offense — ten years' imprisonment. The sentences on all of the other counts were either merged or imposed concurrently.
At the time of the sentencing hearing in this case, Cavitt was awaiting sentencing in the Anchorage case. He had a plea agreement in the Anchorage case that provided that he would receive an eighteen-month sentence. Cavitt asked Judge Kristiansen to make the sentence in this case concurrent with the Anchorage case, so that he would receive no more than ten years' imprisonment. But the judge declined, explaining that she did not have sufficient information about the Anchorage charges and that the two offenses were quite separate. The sentencing statutes gave Judge Kristiansen the authority to impose Cavitt's sentence either concurrently or consecutively to the Anchorage case. Cavitt argues that Williams v. State requires that he receive concurrent sentences so that his aggregate sentence will not exceed ten years' imprisonment. In Williams, this court relied on American Bar Association Standards that provided, "[F]or most offenses, the maximum prison term authorized ought not to exceed ten years and normally should not exceed five years."
See AS 12.55.127(a), (b); Smith v. State, 187 P.3d 511, 515 (Alaska App. 2008) (holding that a judge is not required to impose a consecutive sentence for a subsequent crime unless the crime was committed after the defendant was sentenced for a prior offense).
759 P.2d 575 (Alaska App. 1988).
Id. at 577 (quoting Am. Bar Ass'n, American Bar Association Standards Relating to the Administration of Criminal Justice: Sentencing Alternatives and Procedures § 18-2.1(e) (2d ed. Approved Draft 1979)); see also 3 Am. Bar Ass'n, Standards for Criminal Justice § 18-2.1(e) (2d ed. 1980).
The Alaska Supreme Court has disapproved of the ten-year benchmark that we relied on in Williams. The court held that this benchmark is inconsistent with the presumptive sentencing scheme and contrary to appropriate sentence review. The court concluded that the authority granted by the presumptive sentencing scheme prevailed over the contrary provisions of the ABA Standards. Therefore, we cannot rely on this benchmark as an impediment to the judge's decision to give Cavitt a consecutive sentence. W e conclude that the judge's decision to impose a consecutive sentence for this offense was not clearly mistaken.
See DeGross v. State, 816 P.2d 212, 217 n. 3 (Alaska App. 1991) (stating that the ten-year benchmark we followed in Williams has been called into question by State v. Wentz, 805 P.2d 962 (Alaska 1991)).
Wentz, 805 P.2d at 965.
Id. at 966 n. 5; see also Phelps v. State, 236 P.3d 381, 385-87 (Alaska App. 2010) (describing the ABA's changed policy toward consecutive sentences).
Conclusion
We AFFIRM the superior court's judgment and sentence.