Opinion
Court of Appeals No. A-11638 Court of Appeals No. A-11647 No. 6433
02-22-2017
LISA ANNETTE GOSSETT and CHRIS D. GOSSETT, Appellants, v. STATE OF ALASKA, Appellee.
Appearances: Joshua Fannon, Palmer, for the Appellants. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court Nos. 3PA-10-1195 CR & 3PA-10-1123 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge. Appearances: Joshua Fannon, Palmer, for the Appellants. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Lisa Annette Gossett and Chris D. Gossett were convicted of fourth-degree controlled substance misconduct after the police served a search warrant at their cabin in Chickaloon and discovered an illegal marijuana growing operation. During the pre-trial proceedings in the superior court, the Gossetts attacked the validity of the search warrant. The Gossetts contended that, for various reasons, the search warrant application did not establish probable cause for the search, and thus all evidence stemming from the service of the search warrant should be suppressed. The superior court held an evidentiary hearing to address the Gossetts' various contentions. Based on the evidence presented at this hearing, the superior court concluded that the search warrant was valid, and the court therefore denied the Gossetts' suppression motion.
Former AS 11.71.040(a)(2) & (3)(G) (the 2010 versions of these statutes).
In this appeal, the Gossetts renew various attacks on the sufficiency of the search warrant application. For the reasons explained in this opinion, we uphold the superior court's decision that the search warrant application established probable cause for the search, and we therefore affirm the Gossetts' convictions.
The Gossetts' assertion that the trooper who applied for the search warrant recklessly relied on a false statistical analysis
Alaska State Trooper Kyle Young was the officer who applied for the warrant to search the Gossetts' cabin. In seeking the warrant, Young relied primarily on (1) Chris Gossett's known ties to unlawful marijuana growing operations, (2) the smell of growing marijuana emanating from the Gossetts' cabin, (3) the high level of electrical usage at the apparently unoccupied cabin compared to occupied residences of similar size, and (4) the low likelihood that a marijuana growing operation at a remote cabin would be merely intended to produce marijuana for the defendants' personal use.
In the search warrant application, Trooper Young presented a statistical analysis of 187 prior marijuana investigations where investigators were able to detect the smell of growing marijuana from outside the structure that was later searched. According to Young's statistics, in over 88 percent of these cases, investigators found marijuana in amounts of one pound or more — i. e., in amounts that would support a felony prosecution under former AS 11.71.040(a).
Based on these statistics, Young asserted that the detectable smell of growing marijuana outside the Gossetts' cabin was a reasonable indicator that the cabin contained a commercial quantity of marijuana.
On appeal, the Gossetts argue that Young's statistical analysis was false or at least materially misleading, and that Young recklessly disregarded the false or misleading nature of his statistical analysis when he included this information in the search warrant application. Thus, the Gossetts argue, the superior court should have invalidated the search warrant under State v. Malkin, 722 P.2d 943 (Alaska 1986).
At the evidentiary hearing on the Gossetts' motion to suppress, there was considerable testimony and argument regarding Trooper Young's statistical analysis. Young himself was cross-examined extensively about his analysis, and the Gossetts presented the testimony of an expert statistician who criticized Young's analysis.
As the superior court acknowledged in its decision, the Gossetts' statistician "pointed to a number of significant, and credible, problems" with the way Young "constructed and conducted his statistical analysis." But the superior court also noted that, when the defense statistician was asked whether Young's analysis was materially misleading, the statistician conceded that, because of the low burden of proof in a search warrant application, a judicial officer could appropriately rely on Young's statistics, as long as the limitations of Young's approach were recognized.
The superior court further found, based on the testimony presented at the evidentiary hearing, that Young had not acted recklessly when he included the statistical analysis in the search warrant application.
The superior court acknowledged that the Gossetts had presented "quite a bit of information regarding the problems with [Trooper] Young's analysis." But the court concluded that, because this critique was based on expert statistical theory "and was rather complicated", it was reasonable that a lay person (such as Young) would remain ignorant of these problems. Thus, the superior court concluded, the Gossetts presented "no basis ... to find that when [Young] put the analysis together, [he] had any reason to believe he was making some fundamental mistake."
The record supports the superior court's finding that Young did not act recklessly when he included the statistical analysis in the search warrant application. And even the Gossetts' expert acknowledged that, in the context of a search warrant application (where the State's burden is only to establish probable cause), Young's statistical conclusions were not materially misleading. Even though Young's statistics did not prove as much as he claimed, they did provide some reason to believe that the Gossetts' cabin contained marijuana in commercial quantities.
We therefore uphold the superior court's ruling on the question of Young's statistical analysis.
The Gossetts' assertion that the amount of electricity used at their cabin added nothing to the search warrant application's showing of probable cause
In his search warrant application, Trooper Young relied in part on the assertion that the Gossetts' cabin consumed an unusually large amount of electricity — unusual both because of the cabin's small square footage, and also because the cabin appeared to be unoccupied most of the time.
Young informed the magistrate that the Gossetts' cabin was a two-story log structure with 984 square feet of floor space. According to Young, he had been surveilling the cabin, and there was no indication that the cabin was being used either as a residence or a business. Yet the electricity usage at the cabin had almost tripled since Lisa Gossett first signed up for the electric account. According to Young, the cabin was now consuming approximately 50 percent more electricity each month than would be expected for a residence more than six times its size.
The Gossetts argue that it was improper for Young to rely on this information about their electricity usage when he applied for the search warrant.
It is true that unexplained high electricity usage does not, by itself, establish probable cause to search a structure for evidence of a marijuana growing operation. State v. Crocker, 97 P.3d 93, 98 (Alaska App. 2004); Carter v. State, 910 P.2d 619, 625-26 (Alaska App. 1996). As this Court explained in Carter,
Utility records showing unusual electrical consumption have no inherent incriminatory value. There are many common and legitimate uses of electricity that might account for high or unusual electrical consumption, such as use of an electric sauna, a hot tub, a potter's kiln, or even a "grow operation" involving exotic flowers. Although a proper showing of probable cause need not rule out all possibilities consistent with innocence, neither can it consist of an undifferentiated showing that, among multiple competing possibilities, one is consistent with guilt. Probable cause must at least point the finger of likelihood toward a possibility consistent with guilt.Carter, 910 P.2d at 625-26.
But in the Gossetts' case, Trooper Young explained why he believed that the electricity usage at the cabin was unusually high. That is, he provided information that allowed the magistrate to independently assess Young's assertion of criminal activity.
In particular, Young provided information about the size of the Gossetts' cabin, and the fact that the amount of electricity used at the cabin had increased substantially since the Gossetts took over the account — even though, based on Young's own surveillance, the cabin appeared not to be occupied either as a dwelling or as a business. In addition, Young provided information showing that the cabin was using electricity at a much higher rate than occupied residences of considerably larger size.
As the superior court correctly noted when it decided the Gossetts' suppression motion, because Trooper Young provided this amount of detail, the magistrate who heard the search warrant application "could [independently] determine for himself whether or not to accept the conclusion that Young drew from those facts." Thus, the magistrate could properly rely on the information about electricity usage at the cabin when deciding whether to issue the requested warrant.
In their briefs to this Court, the Gossetts argue that our decision in Crocker changed this analysis. In Crocker, this Court held that, because some marijuana possession is legal in Alaska, any search warrant to investigate a marijuana offense must be supported by probable cause to believe that the marijuana possession is unlawful. 97 P.3d at 96-97.
Relying on Crocker, the Gossetts argue that search warrant applications can no longer be based on evidence of high electricity usage. More specifically, the Gossetts contend that even when the high amount of electricity being consumed inside a structure might support a reasonable inference that someone is growing marijuana inside the structure, evidence of high electricity usage can never support a reasonable inference that the marijuana is being grown (1) for illegal purposes, or (2) in quantities large enough to make the possession illegal.
We disagree. The sufficiency of a search warrant application is evaluated in light of the totality of the information presented in the application. Although high electricity usage, standing alone, does not support an inference of criminal activity, high electricity usage is relevant to this question. When combined with other information, high electricity usage can be part of the showing of probable cause needed to support a search warrant. Here, the warrant application provided other information that independently suggested that the Gossetts were growing a large amount of marijuana inside the cabin.
We note, moreover, that in the present case, Trooper Young provided the magistrate with information that affirmatively linked the amount of electricity usage to the amount of marijuana that might be growing inside the cabin.
In particular, Young provided information about the amount of electricity typically consumed by a standard marijuana grow light. By comparing this amount of electricity for a single grow light to the total amount of electricity being consumed at the Gossetts' cabin, Young inferred that the Gossetts were operating between four and six grow lights.
Young also informed the magistrate that a single grow light will typically support the growth of 20 to 25 marijuana plants. Based on this, Young inferred that the Gossetts were growing "well over 25 marijuana plants", and that these plants would produce "well over 4 ounces of processed marijuana". These amounts of marijuana made the Gossetts' activities illegal.
See former AS 11.41.070(a)(3)(F) & (3)(G) (2010), the statutes that applied at the time of the events in this case. These statutes made it a crime to possess four ounces or more of marijuana, or to possess 25 marijuana plants or more.
Thus, the information about the amount of the Gossetts' electricity usage affirmatively indicated that their cultivation of marijuana was illegal.
The Gossetts contend that the information presented in the search warrant application did not eliminate the possibility that they were using this large amount of electricity for lawful purposes. In support of this contention, the Gossetts point to various arguable flaws or omissions in Young's investigation.
But as we noted in Carter (in the portion of the opinion we quoted earlier), a search warrant application "need not rule out all possibilities consistent with innocence". 910 P.2d at 625-26. Young's search warrant application did not need to affirmatively rebut all potentially innocent explanations for the situation. Rather, the test is whether the information presented in the search warrant application would warrant a reasonably prudent person in believing that a crime was being committed. We agree with the superior court that Young's search warrant application satisfied this test.
Ferrick v. State, 217 P.3d 418, 422 (Alaska App. 2009). --------
Conclusion
The judgement of the superior court is AFFIRMED.