Opinion
No. 64567-6-I.
Filed: March 14, 2011.
Appeal from a judgment of the Superior Court for Snohomish County, No. 09-1-00962-1, Michael T. Downes, J., entered December 9, 2009.
Affirmed by unpublished opinion per Cox, J., concurred in by Appelwick and Lau, JJ.
In determining whether a search warrant application establishes probable cause to search, courts read supporting affidavits in a commonsense manner and in light of all reasonable inferences from the asserted facts. Read in that manner, the affidavits presented in this case established probable cause to believe that an odor of marijuana was coming from Jerri Carson's residence. We therefore reject Carson's challenge to validity of the search warrant executed at her residence and affirm her conviction for manufacturing marijuana.
The trial court's unchallenged findings establish that on February 9, 2009, Lynwood police investigated a citizen complaint regarding an odor of marijuana. The investigating officer smelled marijuana coming from the residence at 3806 177th PL W, Lynnwood. Five days later, he smelled marijuana from a parking lot south of the residence.
Between February 9 and 19, 2009, two detectives visited the residence on five occasions but did not smell marijuana. During these visits, there was either no wind or wind blowing toward the residence.
On February 24, 2009, the detectives smelled a strong odor of marijuana coming from the residence.
On February 27, 2009, police executed a search warrant at the residence but found no marijuana. The homeowner indicated that he had smelled marijuana in the area and that the house behind his residence, located at 17802 38th Pl. W., had been vacant since the previous summer.
Detectives approached the 17802 residence and, according to affidavits submitted in support of a search warrant for that residence, heard "a loud humming sound coming from inside the residence." The detectives knew "[f]rom training and experience [that] the loud humming is associated with ballasts which are used to supply power to marijuana grows." Both detectives smelled "the strong odor of marijuana coming from the residence." Three other narcotics detectives also smelled the marijuana odor and heard the humming sound.
Based on these observations, the detectives applied for and obtained a search warrant. A search of the residence produced 258 marijuana plants and 23 grams of harvested marijuana. The State charged the person renting the residence, Jerri Carson, with one count of manufacturing marijuana.
Carson moved to suppress the marijuana on the ground that the warrant affidavits did not provide probable cause to believe that the odor the detectives smelled was coming from her residence. In denying the motion, the court entered the following pertinent conclusions of law:
. . . .
c. The officers went to the 17802 residence that had a broken window. The upper windows of that residence were also opened, and they easily smelled the odor of Marijuana, which the officers' training and experience allowed them to recognize, coming from that residence.
d. The officers also heard humming from that residence which they associated with ballasts which are used to manufacture Marijuana.
e. The first search warrant of the 3608 address eliminated a house.
f. The officers were able to pinpoint the odor of Marijuana to the 17802 residence.
g. Detecting the odor of Marijuana is a skill, but the ability to pinpoint the direction of an odor is not a specific skill that requires training.
h. There was a factual basis to warrant a person of ordinary caution that the odor and humming was coming from the 17802 residence.
Clerk's Papers at 19. The case then proceeded to a bench trial on stipulated facts. The court found Carson guilty as charged. Carson appeals.
The sole issue on appeal is whether the trial court erred in denying Carson's motion to suppress. She contends the warrant affidavits did not establish probable cause to search her residence, and therefore the warrant was invalid and the evidence should have been suppressed.
The issuance of a search warrant is a "highly discretionary" act. State v. Chenoweth, 160 Wn.2d 454, 477, 158 P.3d 595 (2007). It is grounded in a commonsense reading of the warrant affidavit and the reasonable inferences that can be drawn therefrom. Id. Once issued, a warrant is entitled to a presumption of validity, and courts will give "great deference to the magistrate's determination of probable cause" and resolve any doubts in favor of the warrant. Id. We review the issuance of a search warrant for abuse of discretion, giving great deference to the issuing judge's determination of probable cause. State v. Maddox, 152 Wn.2d 499, 509, 98 P.3d 1199 (2004); Chenoweth, 160 Wn.2d at 477. Although we defer to the issuing judge's decision, the trial court's assessment of probable cause on a motion to suppress is a legal conclusion that we review de novo. State v. Chamberlin, 161 Wn.2d 30, 40-41, 162 P.3d 389 (2007). We will generally resolve doubts about the existence of probable cause in favor of the validity of the search warrant. Chenoweth, 160 Wn.2d at 477.
Carson contends the search warrant was issued without probable cause to believe that the marijuana odor detected by police was coming from her residence. Probable cause is established if the warrant application sets forth "facts and circumstances sufficient to establish a reasonable inference that the defendant is involved in criminal activity and that evidence of the criminal activity can be found at the place to be searched." State v. Atchley, 142 Wn. App. 147, 161, 173 P.3d 323 (2007). Carson contends the warrant affidavits did not meet this standard because they did not say where the officers were standing when they smelled marijuana, did not establish how far Carson's residence was from other homes in the vicinity, and generally contained "no information on how or if the officers verified their belief the odor was coming from Carson's home. . . ." We disagree.
The affidavits established that prior to the search of the 3806 residence, detectives walking in front of that residence smelled a strong odor of marijuana. The wind was blowing toward them from the residence. A search of the 3806 residence turned up no marijuana. From these facts, the court could reasonably infer that the odor the detectives smelled was coming from somewhere behind the 3806 residence.
The affidavits also established that the owner of the 3806 residence had smelled marijuana in "the area of his house" and "point[ed] to a two-story green residence behind his house." (Emphasis added). Detectives "went to" the green house, which they later learned was being rented by Carson. They saw no vehicles in the driveway and noticed a broken front window and open windows on the second floor. They smelled a "strong odor of marijuana coming from the residence." They also heard a humming sound "coming from inside the residence" that the officers associated with ballasts used to supply power to marijuana grow operations. Taken together, these facts support reasonable inferences that Carson's residence was near the 3806 residence, and that the Detectives' were in close proximity to Carson's residence when they made their observations regarding the marijuana odor and the humming sound.
Viewed in a commonsense manner, the affidavits established probable cause to believe that the marijuana odor was coming from Carson's residence. The court did not err in denying the motion to suppress.
We affirm the judgment and sentence.