Opinion
No. 62415-6-I.
January 19, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-1-02452-7, Douglas D. McBroom, J., entered September 29, 2008.
Affirmed by unpublished opinion per Becker, J., concurred in by Dwyer, A.C.J., and Leach, J.
Following a bench trial on stipulated evidence, Christopher Bakken was convicted of manufacturing marijuana, possession of marijuana with intent to deliver, and possession of cocaine with intent to deliver. Bakken contends that the police lacked probable cause to obtain the warrant authorizing the search of his residence in Sammamish and his apartment in Seattle. Because the tip provided by a confidential informant was adequately corroborated by independent police investigation and information received from a citizen, we disagree and affirm.
FACTS
A confidential informant told police that "he/she" has known Bakken for several years and that he operates a marijuana grow operation in the entire bottom floor of a residence at a Sammamish address and keeps and sells large amounts of cocaine from his apartment in Seattle.
Police confirmed that Bakken was the owner of the Sammamish residence identified by the informant. Detective Steven Oskierko and Detective Mark Christianson arrived at the residence at 2:30 p.m., saw a pickup owned by Bakken parked in the driveway, and walked directly up the driveway and front walkway to the steps leading to the front door. At the first step, Detective Oskierko smelled the distinct odor of growing marijuana. Detective Oskierko has extensive training as a narcotics detective with the Multi-Agency Eastside Narcotics Task Force. He has completed over 400 hours of specialized narcotics training and is familiar with the smell of marijuana from training exercises and from the service of search warrants on more than 50 marijuana grow operations. Detective Christianson also confirmed that he smelled marijuana. He has narcotics training and years of experience in drug enforcement work. He is familiar with the smell of growing marijuana from training classes and the service of approximately 250 narcotics search warrants. The two detectives left the residence via the walkway and driveway.
Five days later, the two detectives went to apartment number 606 identified by the informant. They had confirmed that Bakken used the apartment address as the registered address for several vehicles he owns. Detective Oskierko told the apartment manager that he was applying for a search warrant for an apartment and asked if the manager could assist them if a search warrant was obtained. The manager asked what apartment was involved. Detective Oskierko told the manager he could not disclose that information. The manager asked, "`can I guess which apartment?'" The detective said sure, and the manager replied, "`number 606.'" The detective asked the manager why he had guessed that apartment. The manager said there had been several complaints about the strong odor of marijuana coming from that apartment, and the manager could "`easily smell marijuana coming from the apartment.'" The detective asked how the manager knew the smell of marijuana and the manager replied, "`I know what marijuana smells like.'" The manager described the odor as "skunky like fresh marijuana." The manager told the detective he had notified police before about the odor several times but was not sure if the police had ever responded. The detectives attempted, but did not get a "sniff" of marijuana at the door of apartment number 606.
Based on the affidavit of Detective Oskierko, the district court issued a search warrant for both the Sammamish residence and the Seattle apartment. Police seized at least 187 marijuana plants from the residence, together with special lights, filters, and potting buckets. During the search of the Seattle apartment, police found approximately 250 grams of cocaine and a large bag of marijuana shake and leaves, together with a digital scale, and packaging materials.
Bakken filed a motion to suppress the results of the searches, arguing that there was an inadequate showing of probable cause for the searches. Bakken's arguments included his challenge to Detective Oskierko's recitation that marijuana grow operators often keep evidence of the operation at their residence even though the grow operation is in another location.
The trial court denied the motion to suppress. The court acknowledged that the reliability of the informant was not completely established by the information provided to police and that the facts provided by the informant regarding ownership of Bakken's homes and cars were innocuous. But the court found that
the corroborating evidence obtained from the smelling marijuana at the first location, the fact that the building manager of the second location, who is a citizen informant, also informs police about a fresh marijuana smell coming from the defendant's apartment, and the police officers' training and experience where persons running a marijuana grow often keep evidence of such an operation in their residence even though the grow is in another location, together with the informant's information provides a sufficient basis for probable cause.
Aftera stipulated trial, the trial court found Bakken guilty of manufacturing marijuana, possession of marijuana with intent to deliver, and possession of cocaine with intent to deliver.
ANALYSIS
A magistrate's decision to issue a search warrant is reviewed for abuse of discretion. State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002). An affidavit for a search warrant establishes probable cause if it sets forth facts sufficient for a reasonable person to conclude that the defendant is probably involved in criminal activity and the police will find evidence of the criminal activity at the place to be searched. State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). The affidavit should be interpreted in a "commonsense, practical manner," rather than applying a hyper-technical standard. State v. Stenson, 132 Wn.2d 668, 692, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).
For an informant's tip (as detailed in an affidavit) to create probable cause, the affidavit must set forth (1) circumstances from which the informant drew his information so that a magistrate can independently evaluate the informant's basis of knowledge (the "basis of knowledge" prong) and (2) underlying circumstances establishing that the informant was credible or his information reliable (the "veracity" prong). State v. Jackson, 102 Wn.2d 432-33, 435, 688 P.2d 136 (1984), citing the Aguilar-Spinelli two-prong test articulated by the United States Supreme Court in Spinelli v. United States, 393 U.S. 410, 413, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).
An independent police investigation may establish probable cause if the independent investigation corroborates the confidential informant. Jackson, 102 Wn.2d at 438. Probable cause is not established if the independent investigation merely verifies innocuous details, commonly known facts, or easily predictable events. State v. Kennedy, 72 Wn. App. 244, 249, 864 P.2d 410 (1993), quoting Jackson, 102 Wn.2d at 438, review denied, 123 Wn.2d 1031 (1994). Instead, probable cause is only established if the independent police investigation points to "`suspicious activity.'" Kennedy, 72 Wn. App. at 249, quoting Jackson, 102 Wn.2d at 438.
In this case, the independent police investigation established probable cause. As acknowledged by the trial court, the investigation of Bakken's vehicle registrations and his residence and apartment merely corroborated "innocuous facts." But the investigation also corroborated `suspicious activity.' The detectives' sniff of the odor of freshly grown marijuana at the front steps of the Sammamish residence is evidence of suspicious activity that corroborated the informant's tip. "[A] statement that an officer with training and experience actually detected the odor of marijuana provides sufficient evidence, by itself constituting probable cause to justify a search." State v. Cole, 128 Wn.2d 262, 289, 906 P.2d 925 (1995). Contrary to Bakken's argument, the materials submitted in support of the search warrant adequately set forth the training and experience of the detectives and their familiarity with the odor of marijuana. And even though Detective Christianson did not sign the affidavit for the search warrant, the training, experience, and observations of Detective Oskierko alone were sufficient to support probable cause based upon the odor of marijuana.
Without citing any supporting legal authority, Bakken argues the detectives trespassed to conduct the sniff. But police on legitimate business may enter a driveway, walkway, and front steps of the residence that are impliedly open to the public. State v. Seagull, 95 Wn.2d 898, 902, 632 P.2d 44 (1981). There is no showing that the detectives who approached the house at 2:30 p.m. to investigate the informant's tip departed from those areas.
Bakken challenges the search warrant for the Seattle apartment, arguing that the confidential informant was not shown to be reliable. But the independent police investigation already corroborated the informant's tip as to the Sammamish residence. And the information offered by the Seattle apartment manager regarding the odor of marijuana coming from the apartment and a series of complaints about that odor was also consistent with the information obtained from the confidential informant. Bakken argues there is no information confirming that the manager actually knew the odor of marijuana or how recently the manager smelled the odor of marijuana coming from the apartment. Citizen-informants, as opposed to professional informants, are presumed to be reliable sources of information. State v. Wakeley, 29 Wn. App. 238, 241, 628 P.2d 835, review denied, 95 Wn.2d 1032 (1981). The information provided by the manager was consistent with the corroborated information that a marijuana grow operation existed at the residence owned by Bakken in Sammamish. When all of the information gathered by the police is taken together and considered in a commonsense manner, there was probable cause to search the apartment.
Bakken relies upon Thein to argue that the trial court improperly relied upon "boilerplate" allegations of the detective that persons who are involved in marijuana grow operations often keep marijuana at locations where they live apart from the location of the operation. 138 Wn.2d at 140. But in Thein, the Supreme Court reversed the defendant's drug conviction, holding that the conclusory assertion that "`it is generally a common practice for drug traffickers to store at least a portion of their drug inventory and drug related paraphernalia in their common residences,'" in the absence of any statements actually tying the defendant's residence to suspected criminal activity, was insufficient to "establish a nexus between evidence of illegal drug activity" and the place to be searched. Thein, 138 Wn.2d at 138-39, 151. Unlike the affidavit at issue in Thein, Detective Oskierko's affidavit set forth specific facts to establish the required nexus between the marijuana grow operation at the Sammamish residence and the sale and possession of drugs at the Seattle apartment. Based on the independent police investigation that corroborated the information provided by the confidential informant, it was reasonable for the issuing judge to infer that the police would find evidence of Bakken's drug activities in the Seattle apartment.
The trial court properly refused to suppress the evidence obtained as a result of the search of the residence and the apartment. Affirmed.
WE CONCUR.