Opinion
Court of Appeals No. A-11118 Trial Court No. 3PA-06-2999 CR No. 6059
06-11-2014
MICHAEL DOUGLAS ELLIS, Appellant, v. STATE OF ALASKA, Appellee.
Chester D. Gilmore, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge.
Appearances: Chester D. Gilmore, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge ALLARD.
Michael Douglas Ellis was convicted of one count of fourth-degree misconduct involving a controlled substance. He appeals, asserting that the trial court erred when it denied his motions to suppress the evidence against him. For the reasons explained here, we affirm the superior court's judgment.
Factual and procedural background
The police applied for a warrant to search Ellis's residence on S. Pope Drive in Willow based on their belief that the residence was part of a large-scale marijuana grow operation controlled by Steven Carr.
A month earlier, the police had executed a search warrant at Carr's residence in Big Lake and seized more than 100 marijuana plants. Further investigation revealed that Carr owned several other properties in the Matanuska-Susitna Borough. The police later executed a search warrant at one of those residences, on Smitty Circle in Wasilla. Carr was present during that search.
Inside the Smitty Circle residence, the troopers found evidence of a small commercial marijuana operation that shared similarities with the grow found in Carr's residence at Big Lake. The troopers also found two receipts from the Matanuska Electric Association which showed payments in cash for accounts at two other residences. One of the receipts had "Pope Road" handwritten on it, and was for an account in the name of Vonnie Dirks for the amount of $923.75. The troopers were aware from a previous police contact that Dirks and Carr knew one another.
From the Matanuska Electric Association's records, the police were able to determine that Dirks had a utility account at an address on S. Pope Drive and that the electricity usage at that residence was exceptionally high — more than four times the amount of electricity used for a residence of comparable size. The troopers therefore suspected that this residence was part of Carr's larger operation and that it contained a commercial marijuana grow.
Based on this information, the troopers applied for a warrant to search the S. Pope Drive address. After the magistrate granted the warrant, the police searched the residence, discovering over 30 live marijuana plants and 6-10 pounds of processed marijuana. The defendant in this case, Michael Douglas Ellis, was the sole occupant of the home.
Ellis was subsequently arrested and charged with misconduct involving a controlled substance in the fourth degree. He moved to suppress the marijuana on the grounds that (1) the search warrant lacked probable cause and (2) the information contained in the warrant was the fruit of an illegal search of the Smitty Circle residence. Superior Court Judge Eric Smith ruled that the search warrant was supported by probable cause and that Ellis lacked standing to challenge the Smitty Circle search.
AS 11.71.040(a).
Ellis now appeals.
Was the search warrant for the S. Pope Drive residence supported by probable cause?
"Probable cause to issue a search warrant exists when reliable information is set forth in sufficient detail to warrant a reasonably prudent [person] in believing that a crime has been or was being committed."
State v. Smith, 182 P.3d 651, 653 (Alaska App. 2008) (internal citations and quotations omitted).
Ellis argues that the search warrant in his case was deficient because the evidence of the high electricity usage at the S. Pope Drive residence lacked sufficient detail and because the connection between that residence and Carr's commercial grow operations at other locations was too tenuous. Ellis also argues that his case is like State v. Crocker, where this Court held that the search warrant affidavit failed to establish probable cause to believe the residence contained an impermissible quantity of marijuana.
97 P.3d 93 (Alaska App. 2004).
Id. at 98.
In Crocker, we held that, because personal possession of marijuana in the home is constitutionally protected under the Alaska Constitution, "a judicial officer should not issue a warrant to search a person's home for evidence of marijuana possession unless the State's warrant application establishes probable cause to believe that the person's possession of marijuana exceeds the scope of the possession that is constitutionally protected."
Smith, 182 P.3d at 653 (quoting Crocker, 97 P.3d at 94 and citing Ravin v. State, 537 P.2d 494 (Alaska 1975)).
The superior court found that the search warrant application provided an adequate explanation for why the troopers believed that the high electricity usage was evidence of a commercial marijuana grow operation, and for why they believed that the residence was linked to Carr's larger marijuana operation. The court noted that, unlike in Crocker, the application compared the residence's electricity usage to the usage of similarly sized residences, and provided a detailed explanation for why the level of electricity usage was consistent with a large-scale marijuana grow and unlikely to have an innocent explanation. The court also found that the police reasonably relied on the utility receipt found in the Smitty Circle residence as evidence that the two residences were linked and part of Carr's larger operation.
See Carter v. State, 910 P.2d 619, 626 (Alaska App. 1996) (because unusual electrical consumption may have many legitimate explanations, evidence of high or unusual energy usage is not alone sufficient to establish probable cause and will only be significant if "solid facts have been presented to the issuing magistrate to indicate that criminal activity is afoot or to eliminate legitimate explanations for the unusual consumption").
We have reviewed the search warrant application in this case and we agree with the superior court's analysis and its conclusion that the application was supported by probable cause.
Did Ellis lack standing to assert that the information in his search warrant was the fruit of an illegal search of the Smitty Circle residence?
While Ellis was litigating the pretrial issues in his case, Carr was litigating the pretrial issues in his own case. As part of this litigation, Carr moved to suppress the evidence obtained from the search of the Smitty Circle residence, asserting that the search warrant was based on an unlawful police entry onto the property. The superior court granted the motion and suppressed the evidence obtained from the Smitty Circle search.
After the superior court suppressed the Smitty Circle evidence in Carr's case, Ellis filed a second motion to suppress. He asserted that the search warrant application in his case was also based on the Smitty Circle evidence, and that the evidenced seized at S. Pope Drive should therefore also be suppressed as fruit of the poisonous tree. The superior court denied the motion, ruling that Ellis lacked standing to raise this argument under Waring v. State.
670 P.2d 357 (Alaska 1983).
In Waring, the Alaska Supreme Court held that a defendant ordinarily does not have standing to claim relief for the State's violation of another person's Fourth Amendment rights. The Court recognized two exceptions to this general rule: (1) if the police obtained the evidence as a result of gross or shocking misconduct, or (2) if the defendant was the target of the officer's illegal actions.
Id. at 363.
In superior court, Ellis contended that the police conduct that led to suppression of the evidence in Carr's case was shocking, because the police deliberately violated the sanctity of the home and attempted to intimidate a reluctant homeowner into answering the door. But the superior court disagreed with this characterization of the police actions. The court found that the unlawful police conduct involved the trooper deviating from the normal path of ingress and egress to look through a window. The superior court concluded that "while impermissible, [the trooper's] conduct did not 'shock the conscience' in a manner that requires the court, 'as a matter of judicial integrity' to disassociate itself from what [the trooper] did." The superior court also found that there was no evidence that the investigation at Smitty Circle was targeted at Ellis; indeed, at the time of the investigation the police were unaware of Ellis and the S. Pope Drive residence.
See id. at 362.
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Having reviewed the superior court's findings regarding the police conduct at the Smitty Circle residence, we agree with the superior court's analysis and its conclusion that Ellis lacked vicarious standing under Waring.
Conclusion
We AFFIRM the superior court's judgment.