Opinion
22-P-89
01-17-2023
COMMONWEALTH v. MICHAEL ALVES
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Commonwealth appeals from the allowance of the defendant's motion to suppress evidence of illegal marijuana cultivation that the police obtained pursuant to two search warrants. Because the search warrant affidavits here failed to establish probable cause that any marijuana cultivation at the defendant's property was illegal, we affirm the order allowing the motion to suppress. See Commonwealth v. Canning, 471 Mass. 341, 342 (2015).
Background.
Before turning to the contents of the search warrant affidavits, we provide an overview of the proceedings. Suspecting that the defendant was growing marijuana illegally in a barn on his property, the North Attleborough police in 2019 obtained a search warrant to perform thermal imaging of that barn using a helicopter. The warrant was obtained based on an affidavit supplied by Detective Sergeant Richard McQuade (since promoted to Chief). Based on a second affidavit from McQuade -- which included the same averments set forth in the initial affidavit, supplemented by the results of the thermal imaging search -- the police obtained a warrant to search the interior of the barn. That search yielded sixty-three marijuana plants, dried marijuana, and various materials associated with cultivation. The defendant was arrested and charged with distribution.
See Kyllo v. United States, 533 U.S. 27, 40 (2001) ("Where . . . the Government uses a [thermal imaging] device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant").
Here, as in Canning, "[f]or reasons that have not been explained, the defendant was not charged with unlawful cultivation of marijuana. There does not appear to be any evidence of distribution in this case." 471 Mass. at 343 n.3.
As McQuade's affidavits set forth, the police had been notified by an electric company of the barn's "unusually high" levels of electricity usage, which exceeded that of the main residence, nearby homes, and commercial enterprises. The electric company also had reported a "strong odor of marijuana emanating" from the barn, surveillance cameras and boarded up windows on the barn itself, and the defendant's habit of paying his bill late and in cash. The detective confirmed some of these details himself, including the "pungent smell of raw marijuana." With respect to the quantity of marijuana being grown in the barn, McQuade averred that: "[w]ith [so] much power being used at the [barn], [he] fe[lt] confident in assuming that [the defendant] [was] potentially growing/cultivating/manufacturing more than the state allowed [six] plants per adult (over age [twenty-one]) or up to [twelve] plants for [two] or more adults per household." Based on this, McQuade concluded that there was probable cause the barn was being used "in the furtherance of the marijuana trade."
As a result of a hearing conducted pursuant to Franks v. Delaware, 438 U.S. 154 (1978), the motion judge ruled that McQuade should have included in his affidavits certain potentially exculpatory information. Specifically, the omitted information was that, two years prior to the searches, the defendant had provided to the electric company a potential explanation for why the electricity usage of the barn was so high (a statement that he leased the barn out for welding). Considering this omitted information together with the averments contained in McQuade's initial affidavit, the motion judge concluded that the police had not established probable cause that the defendant was illegally cultivating marijuana. Because the second affidavit added only the results of the thermal imaging search, the judge ruled that the evidence discovered through the subsequent search of the barn must be suppressed.
The judge ruled that the omission of this information was "reckless" given that it was in a file that McQuade confirmed at the Franks hearing was sent to his email and that he received.
Discussion.
The Commonwealth does not, for these purposes, challenge the ruling that the omitted information must be considered pursuant to Franks. The question before us therefore is "whether the affidavit[s], supplemented by the omitted information, furnish[] probable cause." Commonwealth v. Long, 454 Mass. 542, 553 (2009). We review that question de novo. Id. at 555.
In Canning, the Supreme Judicial Court found that a combination of circumstances provided probable cause that the defendant was cultivating marijuana at his home. 471 Mass. At 342-344. These circumstances included electricity usage many times that of neighboring homes, the "strong odor of 'freshly cultivated' marijuana emanating from the house," and certain suspicious modifications to the house, such as the blacking out of windows. Id. at 343. The Commonwealth points to a similar combination of circumstances here: the barn's high comparable electricity usage, the "strong" and "pungent" odor of unburnt marijuana, and comparable suspicious circumstances with the barn itself. Insofar as the Commonwealth argues that the affidavits provided probable cause that the defendant was cultivating marijuana inside the barn, we agree. We also agree that consideration of the defendant's two year old statement to the electric company that there was a welding operation in the barn does not negate probable cause that the defendant was cultivating marijuana. Cf. Commonwealth v. Diaz-Arias, 98 Mass.App.Ct. 504, 510 (2020) ("While one might imagine an innocent explanation for the observed behavior, one does not have to indulge the innocent explanations in evaluating probable cause").
We note that the affidavits did not simply assert that the barn's electricity usage was high but compared that usage to other sources in the area. Compare United States v. Golden Valley Elec. Ass'n, 689 F.3d 1108, 1114 (9th Cir. 2012) ("What primarily matters is the amount of electricity usage relative to that of other residences in the vicinity"), with State v. Benters, 367 N.C. 660, 671 (2014), and cases cited ("By contrast, little to no value should be accorded to wholly conclusory, non-comparative allegations regarding energy usage records").
However, Canning instructs that there also must be an affirmative showing in the affidavit that any marijuana cultivation was unlawful. See 471 Mass. at 352. "[T]o obtain a search warrant for an offense involving marijuana, the police are required to establish that they are investigating . . . illegal marijuana cultivation, not merely the . . . cultivation of marijuana" (emphasis added). Commonwealth v. Long, 482 Mass. 804, 811 (2019), citing Commonwealth v. Richardson, 479 Mass. 344, 350-351 (2018). "This necessarily requires proof that the . . . cultivation of marijuana at issue is not sanctioned by State law." Id.
There are now three different ways that marijuana cultivation may be authorized. First, any person twenty-one years of age or older may grow up to six marijuana plants for personal use at his or her primary residence (so long as there are not more than twelve plants being "cultivated on the premises at once"). G. L. c. 94G, § 7 (a) (2). Second, under the medical marijuana statute, G. L. c. 94I, § 2, a "Registered Qualifying Patient" may possess up to twenty-four plants for personal medicinal use, and potentially a higher quantity if he or she obtains a "Hardship Cultivation Registration." 935 Code Mass. Regs. § 501.140(3)(c) (2021). Third, a commercial growing operation now can be licensed as a "marijuana cultivator," without a statutory cap on the amount being grown. See G. L. c. 94G, §§ 1, 5.
The issue in Canning was whether the cultivation was permissible under the medical marijuana law, G. L. c. 94I, which was the only legal way to grow marijuana in Massachusetts at the time. See 471 Mass. at 348-353. The statute allowed an individual qualifying patient to cultivate marijuana up to an amount needed to provide a sixty-day supply pursuant to a hardship cultivation registration. Id. At 346-347. Implementing regulations had also established that a sixty-day supply presumptively was ten ounces, but the regulation did "not identify the number of marijuana plants that may be necessary to grow ten ounces of marijuana." Id. at 346 n.7. After Canning was decided, the implementing regulations were amended. They now specify that a registered qualifying patient may possess up to a total of twenty-four marijuana plants at one time ("[twelve] flowering plants and [twelve] Vegetative plants, excluding Clones and cuttings"). 935 Code Mass. Regs. § 501.140(3)(c) (2021). A hardship cultivation registration is needed if the patient wants to exceed that amount in order to maintain a sixty-day supply. See id.
To provide a direct showing that the cultivation of marijuana was "not allowed under State law," the affidavits would have had to explore all three ways that the cultivation could have been legal. Long, 482 Mass. at 813. We begin by addressing the most broadly applicable provision, the one allowing anyone twenty-one or over to cultivate marijuana for unspecified personal use. See G. L. c. 94G, § 7 (a) (2). The affidavits do not address how this provision was inapplicable, e.g., by demonstrating that the defendant was under twenty-one, that the cultivation was not being done "on the premises" of the defendant's primary residence within the meaning of G. L. c. 94G, § 7 (a) (2), or that the marijuana being grown was not actually for his personal use.
Cf. Long, 482 Mass. at 814 (authority to cultivate marijuana for personal use at primary residence did not apply to commercial warehouse). In the case before us, the Commonwealth argued on appeal in passing that the barn "is clearly not a primary residence," but it did not raise such an argument in the Superior Court. That argument is therefore waived.
Nor did the affidavits make an adequate showing that the number of plants being grown exceeded the six or twelve plants that may be cultivated should the statute apply. For example, as to electricity usage, the affidavits asserted no established correlation between the amount of electricity being used and the number of plants being grown. To be sure, as noted, McQuaid did state that: "[w]ith [so] much power being used at the [barn], [he] fe[lt] confident in assuming that [the defendant] [was] potentially growing" more than was allowed as of right. However, although probable cause requires a relatively low threshold of proof, it must be based on sufficient particularized information, not a conclusory statement as to what an affiant without any demonstrated relevant expertise feels "confident in assuming." See Commonwealth v. Perkins, 478 Mass. 97, 109 (2017). See also Commonwealth v. Ortiz, 487 Mass. 602, 606 (2021) ("Strong reason to suspect is not adequate [for probable cause]" [quotation omitted]).
The affidavits noted that the defendant was using electricity in an amount that -- apparently under the electric company's policies -- "was approaching a commercial rate." The Commonwealth suggests that this means that the defendant had a commercial marijuana cultivation operation. The circularity in such logic is self-evident.
McQuade did not claim that he had any specialized knowledge, training, or expertise in extrapolating the quantity of marijuana being grown from the amount of electricity being used.
Nor did the affidavits attempt to correlate the amount of marijuana being grown with the degree to which the odor of unburnt marijuana was emanating from the barn. In any event, it is well established that even the "very strong odor" of unburnt marijuana is insufficient to "reliably predict[] the presence of a criminal amount of the substance," particularly where, as here, the affiant did not demonstrate that he had "undergone specialized training" in this regard. Commonwealth v. Overmeyer, 469 Mass. 16, 22 (2014).
"Although it is possible that training may overcome the deficiencies inherent in smell as a gauge of the weight of marijuana present, . . . there is no evidence that [McQuade] had undergone specialized training that, if effective, would allow [him] reliably to discern, by odor, not only the presence and identity of a controlled substance, but also its [quantity]." Overmeyer, 469 Mass. at 22.
In addition to failing to demonstrate that the defendant could not have been growing the marijuana for his own personal use, the affidavits failed to address the potential applicability of the relevant provisions of the medical marijuana laws and regulations. The affidavits did not address whether the defendant was a registered qualifying patient, or whether the amount being grown exceeded the amount that he could grow for medical use.
We additionally note that the affidavits also did not address, at least directly, whether the defendant had a commercial license. For the first time at the hearing before us, the Commonwealth argued that because the barn lies in a district not zoned for commercial use, it is ineligible for a commercial license, presumably pursuant to G. L. c. 94G, § 5. The Commonwealth asks us to draw the zoning status of the property from a statement in the affidavits, apparently attributed to a third party, that "[i]t is highly unusual to have a detached structure that is not zoned for commercial use to have an electric bill [this high]." We need not resolve whether that statement adequately establishes the property's zoning status, or whether this argument is properly before us, because the Commonwealth's efforts to demonstrate the illegality of the defendant's cultivation fail for the other reasons we discuss. Furthermore, nothing in that statute, however, forbids a municipality from allowing marijuana cultivation in a noncommercial zone and no part of the North Attleborough zoning bylaws has been brought to our attention.
We recognize that, in some circumstances, the Commonwealth can establish probable cause of illegal marijuana cultivation without a direct showing that it was unauthorized. For example, as Canning itself recognizes, evidence that marijuana was being sold from the premises where it was being cultivated would generally be enough to establish probable cause to search the premises. See 471 Mass. at 352 n.15. In the case before us, the Commonwealth asks us to conclude that there were sufficient suspicious circumstances to supply probable cause that the marijuana cultivation was illegal. It points to the installation of security cameras to protect the barn, the blacking out of the barn's windows, and the defendant's practice of paying his large electricity bills late and in cash. Although these facts may be relevant to the analysis, we are unpersuaded that they, without more, establish probable cause that any marijuana cultivation here was unlawful. See Canning, supra at 343 (finding no probable cause that marijuana cultivation was illegal despite fact "that windows of the addition to the house on the property were obscured by dark material"). In this regard, we note that the security measures that the defendant installed add little, if anything, to the probable cause calculus, as they do not point to the illegality of whatever activities or assets the defendant was seeking to protect. See State v. Sisco, 238 Ariz. 229, 248 (Ct. App. 2015), rev'd on other grounds, 239 Ariz. 532 (2016) (noting that video surveillance cameras protecting building did not contribute to probable cause because installing them "would [also] be the case for an authorized cultivation site"). The defendant's use of large amounts of cash while obtaining service under his own name is, at best, mildly suggestive that the defendant might be involved in some illegal activity.
Because we conclude that the affidavits do not establish probable cause that any marijuana cultivation at the defendant's property was illegal, we affirm the order allowing the motion to suppress.
Order entered August 5, 2021, allowing motion to suppress affirmed.
By the Court Milkey, Ditkoff & Englander, JJ.
The panelists are listed in order of seniority.