Opinion
No. 29188-0-III.
Filed: June 2, 2011.
Appeal from a judgment of the Superior Court for Chelan County, No. 09-1-00298-4, Lesley A. Allan, J., entered June 10, 2010.
Reversed by unpublished opinion per Brown, J., concurred in by Sweeney and Siddoway, JJ.
UNPUBLISHED OPINION
The State appeals the trial court's grant of evidence suppression in its controlled substance case against Kimberlee Moyer. The State contends the information provided was not stale and that probable cause supported the search warrant used to gather incriminating evidence against Ms. Moyer. We reason the information sufficiently supported search warrant issuance, and reverse.
FACTS
On January 8, 2009, Detective Josh Mathena received anonymous information about Ms. Moyer growing marijuana in the basement of her house located at 807 Orondo Street and learned Ms. Moyer was a continuing, long-time marijuana user. The informant indicated Ms. Moyer's 16-year-old son was a marijuana user who the informant believed was supplied by Ms. Moyer. No information was received about where Ms. Moyer's son was living. Detective Mathena confirmed Ms. Moyer was listed as living at 807 Orondo Street. Ms. Moyer's criminal records showed an arrest in 2002 for driving under the influence and possession of 40 grams or less of marijuana; Ms. Moyer was convicted of negligent driving in the first degree, and the marijuana charge was dismissed.
That evening, Detective Mathena directed Wenatchee police officers to stop by Ms. Moyer's house. When the officers knocked on the door as part of a ruse, Ms. Moyer answered, but did not open the door all the way. The officers had a brief conversation with Ms. Moyer. One officer stated Ms. Moyer acted "very suspicious and nervous" and watched the officers as they left. Clerk's Papers (CP) at 36. The officers then drove through the alley behind Ms. Moyer's house. They saw Ms. Moyer retrieve a garbage bag from her garbage can in the alley and take the bag inside the house. Detective Mathena stated his training and experience taught him indoor marijuana growers will often throw away evidence relating to the grow operation, such as marijuana leaves and stems, as well as marijuana growing equipment.
On January 13, 2009, Detective Mathena spoke with utility district employee Scot Erickson concerning the power usage at 807 Orondo Street. According to Detective Mathena, Mr. Erickson indicated Ms. Moyer was the only person on the account for the residence and her power usage was unusually and consistently higher than it should be; Mr. Erickson compared Ms. Moyer's house to a four bedroom house with a family of six, and Ms. Moyer's house used 1,000 kilowatts more during the month of June 2008. Detective Mathena confirmed with landlord Edward Wendt that Ms. Moyer rented 807 Orondo, a house with a basement. Between January 14, 2009 and March 18, 2009, Detective Mathena spent several nights walking through the alley behind Ms. Moyer's residence unsuccessfully attempting to smell marijuana.
On March 18, 2009, Detective Mathena spoke with Corporal Tim Lykken about his observations at 807 Orondo Street on March 15, 2009, when he and two other officers responded to a domestic violence call at 807 Orondo Street. Ms. Moyer was the suspect and the victim was her daughter, S.E. Ms. Moyer was arrested for assault fourth degree domestic violence. According to Detective Mathena:
I asked Lykken while inside the house did he smell any odor of marihuana. Lykken said it was funny I asked and said he did. He said once he walked in the front door he smelled a faint odor of marijuana. Lykken said he has been around marijuana over 100 times and can identify the smell of marijuana from his training and experience. . . . Lykken said he asked several of the occupants if they had smoked marijuana today or were in possession of marijuana. All denied smoking or being in possession of marijuana.
Lykken did mention that [S.E.] had told him several times to search the house. . . . [S.E.] never said why.
I asked Lykken why they did not follow up on the marijuana odor. Lykken explained that he was currently into an 18-hour shift and the patrol had calls of service pending. He said there was no time to follow up.
CP at 37. Corporal Lykken said he had been around marijuana over 100 times and could identify marijuana smell from his training and experience. Corporal Lykken did not doubt the odor he smelled inside the house was marijuana.
Based on the above facts, Detective Mathena applied for a search warrant for 807 Orondo Street. A search warrant was signed on March 18, 2009 at 10:58 a.m. On March 20, 2009, at approximately 10:28 a.m., Detective Mathena, along with the assistance of other officers, served the search warrant at 807 Orondo Street. During the search, officers found 43 small marijuana plants as well as processed marijuana.
On June 22, 2009, the State charged Ms. Moyer with manufacture of marijuana, possession of marijuana with intent to deliver, and maintaining a drug property.
Ms. Moyer moved to suppress, arguing the search warrant affidavit contained insufficient facts to support probable cause to search. At the suppression hearing all seemed to agree that, without the smell of marijuana, all of the other facts in the affidavit, individually or taken together, were insufficient to establish probable cause. The court reasoned the information regarding the smell of marijuana was stale because Corporal Lykken did not follow up on the odor after March 15, and nothing indicated whether the smell was of fresh, growing marijuana, or smoked or burnt marijuana. The court ordered the evidence suppressed and dismissed the charges.
The State appealed.
ANALYSIS
The issue is whether the trial court erred in deciding no probable cause existed to issue the search warrant before suppressing the evidence and dismissing the case.
A trial court's legal conclusion as to whether an affidavit establishes probable cause is reviewed de novo. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008).
Our review is limited to the four corners of the affidavit, however. Id. "[T]he information we may consider is the information that was available to the issuing magistrate." State v. Olson, 73 Wn. App. 348, 354, 869 P.2d 110 (1994). We, in turn, review a magistrate's decision to issue a warrant for an abuse of discretion. State v. Maddox, 152 Wn.2d 499, 509, 98 P.3d 1199 (2004). The magistrate's decision should be given great deference. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). "All doubts are resolved in favor of the warrant." State v. Anderson, 105 Wn. App. 223, 228, 19 P.3d 1094 (2001).
Probable cause is required to issue a search warrant. State v. Jackson, 150 Wn.2d 251, 264, 76 P.3d 217 (2003). "Probable cause exists where the affidavit in support of the 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." Id.
Here, the affidavit in support of the search warrant offered information obtained from an anonymous informant's telephone call. To establish probable cause based on an informant's tip, the affidavit must demonstrate the basis for the informant's information and the basis for the officer's conclusion that the informant was credible (the two prongs of the Aguilar-Spinelli test). State v. Vickers, 148 Wn.2d 91, 112, 59 P.3d 58 (2002). Usually both prongs of the Aguilar-Spinelli test must be established by information provided to the magistrate; however, any deficiency in one or both prongsmay be cured by independent police investigation that corroborates the informant's tip. Id. This investigation must point to indications of criminal activity along the lines indicated by the informant. State v. Huft, 106 Wn.2d 206, 210, 720 P.2d 838 (1986); State v. Rakosky, 79 Wn. App. 229, 239, 901 P.2d 364 (1995).
Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).
Here, the trial court reasoned, "without the information in the affidavit that [Corporal] Lykken smelled marijuana[,]" the affidavit could not support probable cause for a search warrant. CP at 33. The trial court did not make any findings regarding the other factual bases in the affidavit. It dismissed the case because it determined the information regarding the smell of marijuana was necessary for probable cause and that specific information was stale.
However, the police investigation provided additional information: (1) Ms. Moyer had been arrested for possession of marijuana in the past; (2) Ms. Moyer did not invite investigating officers into her residence; (3) Ms. Moyer acted nervous when the officers were at her door; (4) Ms. Moyer retrieved a garbage bag from her garbage can and brought it back inside her house; (5) Ms. Moyer's power usage was higher than usual; and ultimately (4) that the faint smell of marijuana was present in Ms. Moyer's house.
"A history of the same or similar crimes may be helpful in determining probable cause, but without other evidence, it also falls short of probable cause to search." Neth, 165 Wn.2d at 185-86. "Some factual similarity between the past crime and the currently charged offense must be shown before the criminal history can significantly contribute to probable cause." Id. at 186. Searches are not permitted because people are nervous. Id. at 184. "[M]ost people, even innocent ones, are nervous when pulled over by police." Id. (citing United States v. Wald, 208 F.3d 902, 907 (10th Cir. 2000). Ms. Moyer's actions when Officers Miller and Reiber went to her door do not provide probable cause.
That Ms. Moyer retrieved her garbage and brought it back inside her home immediately after the officers left supports an inference that she "was attempting to conceal from law enforcement whatever she had thrown away in the garbage." CP at 36. When combined with Detective Mathena's affidavit that based on his training and experience, marijuana growers will often throw away evidence relating to the grow, it was reasonable for the magistrate to infer Ms. Moyer was involved in an illegal drug grow. We note, "A high electrical usage in and of itself is insufficient to establish grounds for the issuance of a search warrant." State v. Mickle, 53 Wn. App. 39, 44, 765 P.2d 331 (1988). Ms. Moyer's high power usage alone is an innocuous fact. State v. Murray, 110 Wn.2d 706, 712, 757 P.2d 487 (1988). But the magistrate could consider it together with other facts in deciding to issue the search warrant.
Finally, we reach the critical question whether the affidavit information regarding Corporal Lykken smelling marijuana was stale. The test for staleness of information in a search warrant affidavit is common sense. Maddox, 152 Wn.2d at 505. "In evaluating whether the facts underlying a search warrant are stale, the court looks at the totality of circumstances." Id. at 506. "The length of time between issuance and execution of the warrant is only one factor to consider along with other relevant circumstances, including the nature and scope of the suspected criminal activity." Id.
The State argues several cases regarding whether the length of time between learning of the information and applying for a search warrant in the context of a marijuana grow operation renders the information stale. In State v. Payne, 54 Wn. App. 240, 246, 773 P.2d 122 (1989), an informant's tip was not too stale, though it was provided three weeks before the affidavit. In State v. Hall, 53 Wn. App. 296, 299-300, 766 P.2d 512 (1989), a lapse of two months since the informant had been in the house did not render the information stale. In State v. Petty, 48 Wn. App. 615, 621-22, 740 P.2d 879 (1987), an informant's observation two weeks earlier was not stale.
Three days passed from the time Corporal Lykken smelled the marijuana in Ms. Moyer's house until the search warrant was issued. Two days passed between the time the warrant was issued and when it was executed. While the trial court seemed to be concerned that the odor was dissipating because it was faint, the criminal activity asserted here was a basement marijuana grow operation. The natural inference under these circumstances was on-going activity. Given the totality of the circumstances, and our deference to the magistrate, we conclude the information regarding the marijuana smell was not stale. A reasonable inference existed from the totality of circumstances, that Ms. Moyer was probably involved in an on-going marijuana grow operation and incriminating evidence would be found at her house. In sum, the magistrate did not abuse its discretion in issuing the warrant.
Accordingly, the trial court erred in finding no probable cause existed to issue the search warrant and then suppressing the evidence before dismissing this case.
Reversed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to CW 2.06.040.
SIDDOWAY, J. and SWEENEY, J., concur.