Opinion
No. 5903
12-05-2012
MICHAEL L. HAMILTON and JOHN SHOOK, Appellants, v. STATE OF ALASKA, Appellee.
Appearances: David R. Edgren, Edgren Law Offices, LLC, Palmer, for Appellant Hamilton, and Hanley Smith, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant Shook. Nancy R. Simel, 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 precedent for any proposition of law.
Court of Appeals Nos. A-10601 &
A-10603
Trial Court Nos. 3PA-06-2426 &
3PA-06-2427
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District,
Palmer, Kari Kristiansen, Judge.
Appearances: David R. Edgren, Edgren Law Offices, LLC,
Palmer, for Appellant Hamilton, and Hanley Smith, Assistant
Public Defender, and Quinlan Steiner, Public Defender,
Anchorage, for Appellant Shook. Nancy R. Simel, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Michael C. Geraghty, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
Michael L. Hamilton and John Shook raise multiple challenges to the search of their residence, which was based on a warrant affidavit submitted by Investigator Joel Smith of the Mat-Su Narcotics Unit. Hamilton and Smith argue that portions of Smith's affidavit were recklessly inaccurate, that the balance of the affidavit did not establish probable cause to support the search warrant, and that Superior Court Judge Kari Kristiansen unreasonably limited their presentation of these issues. We conclude that Judge Kristiansen did not clearly err when she found that the information in the affidavit was not recklessly inaccurate, and that she properly concluded that the affidavit supported the search warrant. We also conclude that the judge did not commit plain error in the procedure she followed to decide these issues.
Background
Investigator Smith submitted a search warrant application to search Hamilton and Shook's home for evidence of a marijuana growing operation. Smith described in his affidavit several sources of information that led him to believe that Shook and Hamilton's residence was being used for growing marijuana. First, he stated that he and another officer had smelled marijuana while driving by the home, and that they believed the odor came from that residence. Smith included in his affidavit a summary of research done by Investigator Kyle Young stating that, when officers can smell the odor of growing marijuana outside of a residence, "96% of the time it is a felony level grow operation, for commercial purposes."
Smith also included electricity consumption statistics for Hamilton and Shook's residence and for two comparison residences to indicate that the residence consumed an abnormally large amount of electricity. He stated that the abnormally high consumption was likely related to grow lights used in marijuana cultivation.
Smith later admitted that he made a mistake about the size of Shook's home. The error made it seem like the residence would need less electricity than it actually did, and therefore made it seem more likely that the residents were using the home for growing marijuana.
In his affidavit, Smith also stated that, 18 months earlier, a search warrant had been executed at the same residence and officers had seized 66 marijuana plants and over $100,000 in cash.
The search warrant was issued by District Court Judge John Wolfe. Police officers discovered 48 marijuana plants, along with some processed marijuana. Shook and Hamilton were each charged with four counts of misconduct involving a controlled substance in the fourth degree.
Prior to trial, Shook and Hamilton filed a 36-page motion to suppress the fruits of the search warrant, alleging approximately 12 different reasons why the magistrate may have been misled by Smith's affidavit into issuing the search warrant. Prior to the suppression hearing, Judge Kristiansen told the defendants that they needed to make specific assertions of the factual inaccuracies in the search warrant. In response, Hamilton stated that his main allegation would be that Investigator Young's statistical analysis was inaccurate. Judge Kristiansen ultimately determined that the scope of the hearing should be limited to: (1) Investigator Smith's misstatement regarding the size of Shook's home; and, (2) alleged inaccuracies in Investigator Young's data.
Hamilton also stated that he wanted to question Smith about other areas so that he could develop more arguments that might invalidate the search warrant affidavit. In response, Judge Kristiansen told Hamilton that he would only be able to ask questions relating to the two alleged misstatements in the search warrant affidavit that were the subject of the hearing. Later, Judge Kristiansen also permitted Hamilton to ask questions about whether the police had used thermal imaging to find the marijuana growing operation.
During his testimony, Smith admitted that he mistakenly based his affidavit on one page of Shook and Hamilton's borough property record which described the home's main floor area as 1,664 square feet. He testified that he did not rely on another page of the property record that showed that the home had two stories.
During cross-examination, Hamilton asked Smith about the emergency response training that he had received. When the State objected, Hamilton stated that the information was relevant to developing reasons to suppress the search warrant. But when the judge asked Hamilton to explain the particular issues that he was asking about, he stated: "The part of information in [Smith's] affidavit that he is using to obtain a search warrant from judicial officers." Judge Kristiansen sustained the State's objection to this line of questioning.
Investigator Young testified he was aware of one case in which an investigator mistook the smell of skunk oil for the smell of growing marijuana. That case was not considered in the data that formed the basis for the statistic that Smith used in his affidavit.
After the investigators testified, no one requested a closing argument, and Judge Kristiansen did not ask for a closing argument. A few days later, Judge Kristiansen denied the motion to suppress the fruits of the search. She found that Investigator Smith's misstatement with regard to the size of Shook's home was made "careless[ly] at most," and that, even if Investigator Smith had correctly calculated the home's square-footage, the defendants' house would still have used more than twice as much electricity as would normally be expected. She also found that the defendants had provided "only conclusory and anecdotal evidence" that Investigator Young's statistic was inaccurate.
After a jury trial, both Hamilton and Shook were each convicted of three counts of misconduct involving a controlled substance in the fourth degree.
Discussion
On appeal, Shook argues that (1) Investigator Young's marijuana-smell statistic intentionally omits material information and (2) Investigator Smith made a reckless error about the size of Shook's home that was material to the search warrant. Shook also argues that Judge Kristiansen improperly limited Hamilton's cross-examination of Smith at the motion hearing, and that the judge should have allowed the parties to make a closing argument at that hearing.
Hamilton argues that the search warrant was defective because the notary certificate on Smith's affidavit was dated one day later than the date the judge stated on the warrant. He argues that Smith lacked personal knowledge for some of the information in the warrant affidavit. And he argues that Smith made a number of additional reckless misstatements in the warrant affidavit. Hamilton did not raise any of these arguments in the trial court; we review them for plain error.
The judge reasonably concluded that Investigator Young's statistics were not recklessly misleading.
To justify a warrant to search a home for marijuana, a warrant application must contain information establishing probable cause to believe that the home contains more than the constitutionally protected four-ounce limit for personal use. The smell of growing marijuana outside a residence, combined with an officer's experience, and statistical information from other searches, may be enough to establish probable cause. However, the defendant may still challenge any statistical information that is submitted in the warrant application.
State v. Crocker, 97 P.3d 93, 96-97 (Alaska App. 2004).
State v. Smith, 182 P.3d 651, 654 (Alaska App. 2008).
Id. at 655.
If a defendant contends that misleading information in a warrant affidavit should be disregarded, the defendant must first show that the affidavit contains material false statements. The burden then shifts to the prosecution to prove that the misstatements were not made recklessly or intentionally. If a misstatement was made intentionally, the entire warrant is invalidated. Reckless misstatements are excised from the warrant affidavit, and the remainder of the affidavit is reviewed for probable cause.
State v. Malkin, 722 P.2d 943, 947-48 (Alaska 1986).
Id.
Id. at 946 n.6.
Id. at 946.
Hamilton and Shook presented evidence in the trial court that Investigator Young's research contained at least one omission. Young described one search warrant that had been obtained because an officer thought that he smelled marijuana in a storage container. Upon executing the warrant, the officer discovered that the smell came from a container of skunk oil. That search was not recorded in the list of searches from which Young's 96% statistic was derived.
Shook now argues that Young did not include in his statistics those instances when officers smelled growing marijuana, conducted a search, and then realized that the source of the smell came from a nearby source on another person's property. As Young noted, however, the point of the statistic is not to prove that officers are able to exactly locate the source of the odor. The point of the statistic is to show that, when officers are able to smell the odor of growing marijuana on the outside air, it is likely that commercial quantities of marijuana are being grown.
Shook also argues (in his reply brief) that 20 cases in Investigator Young's data set did not result in seizures of felony amounts of growing marijuana. According to Shook, 20 cases in the data set did not yield a felony amount (25 plants) of growing marijuana, but they did yield a felony amount of harvested marijuana. This, Shook argues, shows that Investigator Young greatly exaggerated officers' ability to distinguish the smell of felony amounts of growing marijuana from lesser quantities of growing marijuana.
This argument does not account for the possibility that some of these marijuana crops could have been harvested after an officer smelled marijuana and before a search warrant was executed. But even if 20 cases are subtracted from the numerator and the skunk-oil case is added to the denominator of Investigator Young's fraction, the statistic still indicates a significant correlation between the officer's ability to smell marijuana on the outside air and the presence of a felony-level growing operation.
Shook also notes that Superior Court Judge Eric Smith (in a 2005 ruling in another case) had stated that it would be best if Investigator Young included in his statistic those instances where officers were fooled by the smell of marijuana and either initially searched the wrong house or discovered that a different substance had given off the smell. Shook argues that Judge Smith's comments put Investigator Young on notice that his statistic was flawed and that, by not including the omitted information in the search warrant for Shook's home, Investigator Young acted intentionally in failing to correct this information. As noted above, the judge could be required to suppress evidence based on a misstatement in a warrant application "when the court finds a deliberate attempt to mislead the magistrate."
Lewis v. State, 862 P.2d 181, 186 (Alaska App. 1993) (quotation omitted) (alteration omitted).
Judge Kristiansen ultimately found that Hamilton and Shook "provide[d] only conclusory and anecdotal evidence" to prove that Young's statistics were inaccurate, and thus had not met this initial burden to prove that the information was false. She also stated that "the marijuana grow research establishes a correlation between Investigator Young's ability to smell marijuana in the outside air and the presence of an illegal marijuana grow." These findings imply that the judge did not find any errors in the statistic that constituted a "deliberate attempt to mislead the magistrate." We conclude that these findings were not clearly erroneous.
The judge reasonably concluded that Smith's error in estimating the size of the residence was not recklessly misleading.
In the search warrant affidavit, Investigator Smith included data comparing the energy usage of Shook and Hamilton's home to the energy usage of homes owned by Investigator Smith's co-workers, a 5,900 square-foot home and a 2,300 square-foot home. Smith stated that Shook and Hamilton's residence was 1,664 square feet and compared their home's energy usage to the 2,300 square-foot home. Shook's home used approximately 4.57 times as much electricity as the comparison home.
But, in fact, Shook and Hamilton's residence was 4,200 square feet; Investigator Smith admitted that he had made a mistake while researching the property in the Mat-Su Borough's property records. Thus, Smith should have used the 5,900 square-foot home as a comparison; if he had done so, Shook's home would have used approximately 2.33 times as much energy as the comparison home.
At the hearing, Smith testified that he had looked at one page of Shook and Hamilton's property record which described the home's main floor area as 1,664 square feet. He testified that he had not relied upon another page of the property record that described the number of stories in the home because that page contained obvious inaccuracies (such as stating that the garage took up only one square foot). Investigator Young corroborated Investigator Smith's testimony and stated that, over the years, he had learned that it was necessary to extensively review the Mat-Su Borough's property records because their square-footage numbers sometimes cannot be taken at face value.
Shook argues on appeal that Investigator Smith recklessly misrepresented the home's size. Shook argues that Investigator Smith should have known that Shook's home was larger than 1,664 square feet.
Judge Kristiansen found that Investigator Smith had not acted intentionally or recklessly, noting that his mistake was "careless at most." In any event, Judge Kristiansen found that the error was not material because, even accounting for the error, Shook's electricity usage was still much higher than that of the 5,900 square-foot comparison home. Her conclusions were supported by substantial evidence and were not clearly erroneous.
The judge did not plainly err by failing to recognize Investigator Smith's alleged lack of knowledge.
Hamilton argues on appeal that some of the testimony at the evidentiary hearing tended to show that Investigator Smith had misled the magistrate by claiming to have personal knowledge of information in his affidavit when, in fact, he had used "canned" boilerplate. But only four of the statements that Hamilton contests appear to potentially have been material to a finding of probable cause: (1) the inclusion of Investigator Young's statistic in Smith's affidavit; (2) Investigator Smith's statement that he had "obtained electrical history [for Hamilton's residence] from MEA"; (3) Smith's statement that "[b]y talking with personnel from MEA," he knew the average cost of electricity per kilowatt-hour; and, (4) Smith's inclusion of the items seized in a previous, 2005 raid on Hamilton's home, which Smith had not been a part of. Hamilton did not raise this claim in the lower court, so we review it for plain error.
With respect to the inclusion of Young's statistic, Smith clearly stated in his affidavit that Young had developed the statistic and that the information had been compiled from the experience of officers in the Mat-Su Drug Unit. Thus, Smith did not mislead the magistrate by implying that he had done the research and compiled the statistic.
With respect to Smith's statement that he had "obtained" electricity usage records for Hamilton's home from MEA, the statement does not obviously mean that he called MEA and obtained the records himself. At the hearing, Smith clarified that he obtained the records from Young, who had spoken with someone at MEA. The fact that Young performed the ministerial task of relaying this information from the MEA to Smith does not constitute a material omission. And with respect to the statement that, "[b]y talking with personnel from MEA," Smith knew the average cost of electricity per kilowatt-hour, there is no indication that Smith lacked personal knowledge of the fact.
Finally, with respect to the information about the 2005 raid on Hamilton's home, the affidavit did not state that Smith had been a member of the raiding team. Hamilton provides no reason why Smith could not have relied on information provided by other officers or on a public record of this event.
In summary, Judge Kristiansen did not commit plain error by failing to discount this information.
The judge did not commit plain error when she failed to recognize other alleged omissions from the warrant affidavit.
Hamilton argues that Investigator Smith omitted material information from his affidavit concerning the conditions under which he had smelled marijuana outside of the residence: that Smith had overheard other officers talking about an anonymous tip regarding the marijuana growing operation, that the residence was a great distance from the road where Investigator Smith smelled marijuana, that it was cold outside (which arguably could have kept the marijuana odor from dispersing), and that the trees still had leaves on them (which arguably could have soaked up at least some of the marijuana odor). These allegations amount to an argument that Smith could not have smelled marijuana outside of Hamilton's home.
Smith's affidavit clearly states that he smelled marijuana emanating from the residence. The record does not contain any evidence about the distance of the home from the roadway, but Hamilton asserted in his questioning that the distance was 400 feet. The record does not contain any evidence about the other circumstances Hamilton now relies on. Whether an officer could have smelled marijuana under these circumstances is a very fact-intensive inquiry requiring far more evidence than Hamilton provided to the trial court. Judge Kristiansen did not commit plain error by failing to rule on this issue.
See United States v. Thoms, 788 F. Supp. 2d 1001, 1006-15 (D. Alaska 2011) (detailing the large amount of evidence collected on weather and environmental conditions, on the sensory abilities and credibility determinations of multiple witnesses who had been near the marijuana grow, on the distance between the origin of marijuana odor and the investigator who smelled it, on the buildings and carbon filtration systems that would have blocked the smell, etc.), vacated on procedural grounds, 684 F.3d 893, 899 (9th Cir. 2012).
Hamilton did not preserve his argument about the date on the warrant.
Hamilton contends that the search warrant was invalid on its face because of a discrepancy between the date on the warrant and the date on the affidavit. The search warrant was signed by Judge Wolfe on September 19, 2006, and Judge Wolfe marked a box on the search warrant stating that an affidavit had been sworn to before him by Investigator Smith. But the clerk who notarized Smith's signature on the underlying affidavit dated the document, in pen, "9-20." Hamilton's argument assumes that Judge Wolfe authorized a search warrant without having received a sworn affidavit from Investigator Smith.
Hamilton did not raise this argument in the trial court. We normally do not consider a search-and-seizure suppression issue that is raised for the first time on appeal unless the violation is clear and singularly egregious. In this case, there is no clear violation because the discrepancy in the dates could be due to clerical error.
Moreau v. State, 588 P.2d 275, 279-80 & n. 13 (Alaska 1978); Forster v. State, 236 P.3d 1157, 1168 (Alaska App. 2010).
The judge reasonably limited Hamilton's cross-examination of Smith.
Shook argues that Judge Kristiansen erred when she refused to allow Hamilton to inquire into Investigator Smith's training and experience on cross-examination. Shook specifically argues that, if Hamilton had been able to fully question Smith about his training and experience, Hamilton could have (1) challenged Smith's assertion, in his search warrant affidavit, that he himself is able to connect the odor of growing marijuana to a commercial marijuana growing operation, and (2) learned whether Smith had ever had specific training in "determining exact square footage from official sources." But Shook did not raise either theory in the trial court. We therefore review Judge Kristiansen's ruling for plain error.
Here, any error that might have occurred was not obvious. Judge Kristiansen had told Hamilton that the suppression hearing would be limited to the two alleged inaccuracies in the search warrant affidavit. When Hamilton stated that he wanted to ask other questions "to develop more information or develop more discovery," Judge Kristiansen explained to him that the hearing would be limited to the issues raised by his motion. Later, when Judge Kristiansen questioned the relevance of Smith's emergency response training, Hamilton responded that it was relevant to develop reasons to suppress the search warrant.
It likely appeared to Judge Kristiansen that Hamilton was asking these questions to expand the limited scope of the hearing. It would certainly not have been "apparent to any competent judge or lawyer" that Hamilton intended to ask about Smith's ability to connect the smell of marijuana to a commercial marijuana grow operation, nor would it have been apparent that Hamilton intended to ask Smith whether he had specific training in "determining exact square footage from official sources."
Shook contends that the trial court should have relaxed its rulings somewhat because Shook and Hamilton were pro se defendants. Although trial judges should inform a pro se litigant "of the proper procedure for the action he or she is obviously attempting to accomplish," trial judges are required not to "act as an advocate for one side." We conclude that Judge Kristiansen was not required to formulate theories to support Hamilton's line of questioning.
Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).
Bauman v. State, Div. of Family & Youth Servs., 768 P.2d 1097, 1099 (Alaska 1989).
In addition, Hamilton contends that Judge Kristiansen did not read his pro se pleadings as liberally as a judge should, and that, if she had, she would have broadened the scope of the suppression hearing to include questions about whether Smith had personal knowledge of the information in his affidavit and whether Smith could have actually smelled marijuana outside of Shook and Hamilton's residence. Having reviewed the pro se pleadings, we conclude that Judge Kristiansen read them in an appropriately liberal manner and, after consulting with the defendants, appropriately restricted the scope of the hearing.
The judge was not required to tell Shook and Hamilton that they could make a closing argument at the motion hearing.
Shook argues that Judge Kristiansen committed plain error by failing to tell him that he had a constitutional right to make a closing argument at the conclusion of the suppression hearing. The State argues that this issue has not been preserved for appeal because Shook did not request oral argument.
Shook has not pointed to any case law suggesting that other courts have established a constitutional right to oral argument at the close of a pretrial suppression hearing, and we have not uncovered any cases that would support Shook's proposition. Instead, several courts have ruled that defendants do not have a constitutional right to oral argument at the close of a suppression hearing.
See, e.g., State v. Gholston, 639 P.2d 1302, 1304 (Or. Ct. App. 1982); Brenneman v. State, 573 S.W. 2d 47, 52 (Ark. 1978); In the Matter of E.B., 330 N.W.2d 584, 592 (Wis. 1983); Holland v. State, 549 A.2d 1178, 1181 (Md. Ct. Spec. App. 1988).
The Alaska Supreme Court has stated that "[a] pro se litigant who wants to initiate [a claim] should familiarize himself or herself with the rules of procedure." This is especially important because, if judges were required to instruct pro se litigants as to every step of the process, the court's impartiality would be compromised "by forcing the judge to act as an advocate for one side." In this case, Alaska Criminal Rule 42(f)(1) states that, if either party desires oral argument on a motion, "that party shall request a hearing on or before the date a reply [is] due."
Bauman, 768 P.2d at 1099.
Id.
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We conclude that Shook did not obviously attempt to request a closing argument regarding his motion and that the judge was not under an affirmative duty to inform Shook that he could present an argument. Judge Kristiansen did not commit plain error.
Conclusion
In summary, we find no reversible error in any of Judge Kristiansen's rulings with respect to the warrant at issue in these appeals. We therefore AFFIRM the superior court's judgments of conviction in both cases.